Sudhanshu Rastogi vs Sanjay Jain And 3 Others
2025 Latest Caselaw 8715 ALL

Allahabad High Court

Sudhanshu Rastogi vs Sanjay Jain And 3 Others on 7 April, 2025

Author: Pankaj Bhatia

Bench: Pankaj Bhatia

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


	
 
Neutral Citation No.2025:AHC-LKO:19447
 
Court No. - 6
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1925 of 2025
 

 
Petitioner :- Sudhanshu Rastogi
 
Respondent :- Sanjay Jain And 3 Others
 
Counsel for Petitioner :- Pritish Kumar,Amal Rastogi
 

 
Hon'ble Pankaj Bhatia,J.
 

1. Heard learned counsel for the petitioner and perused the material available on record.

2. The present petition has been filed by the petitioner challenging an order dated 20.11.2024 whereby the appellate court in exercise of its appellate powers under Order 41 has remanded the matter to the trial court for re-trial.

3. The facts in brief are that a suit was filed being Suit No. 250 of 1979, in the said suit an order came to be passed on 26.05.1986 recording that the case was called out and the parties counsel were present, however, an application was moved for adjournment on the ground that the plaintiff could not be present for leading the evidence on account of medical complication. The said application was opposed, the Court recorded that the counsel for the plaintiff appeared and requested to Court to take up the matter after sometime, so that the plaintiff may come. The case was again called out after lunch and after lunch again an adjournment application was received at about 3.20 PM, wherein it was stated that he had gone to the house of the plaintiff and had taken him to the Doctor, which was again opposed by the defendant. The Court observed that the issues in the case were framed in the year 1982 but the plaintiff was delaying the proceedings of the case. It was also recorded that the plaintiff had presented himself for examination, however, cross-examination could not be concluded and the plaintiff was not cooperating. The Court disbelieving the version of the counsel for plaintiff recorded that in view of the several opportunities, the plaintiff has failed to produce any evidence, as such, the Court presumed that he had no evidence and the case was dismissed for want of evidence with the cost to the defendant.

4. Aggrieved against the said judgment and order dated 26.05.1986, first appeal was preferred under Section 96 CPC being Civil Appeal No. 117 of 1996. The said appeal was heard and the appellate Court allowed the appeal and set aside the judgment and order dated 26.05.1986 and remanded the matter for trial afresh on merits. Aggrieved against the said order dated 20.11.2024, the present petition has been filed under Article 227 of the Constitution of India.

5. A preliminary objection was raised as to why an appeal would not lie under Order 43 Rule 1(u) CPC, to which Sri Pritish Kumar, learned counsel appearing on behalf of the petitioner argues that the judgment dated 26.05.1986 would not be a 'decree' as defined under Section 2(2) of the CPC. He further argues that on the strength of the judgment of this Court in the case of Transport Corporation of India, Varanasi Versus Vijayanand Singh alias Vijaymal Singh and another, 2016 (1) ALJ 116, to argue that in the absence of plaintiff, dismissal of the suit would tantamount to dismissal under Order IX and in view of the definition of 'decree' as contained in Section 2(2) CPC, the judgment and order dated 26.05.1986 would not amount to a decree against which regular appeal would lie under Section 96 CPC.

6. To appreciate the aforesaid argument, it is essential to consider the definition of decree as prescribed under Section 2(2) CPC which is quoted as under:

"2(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation .-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

7. On a plain reading of the said provision, definition of decree as recorded above, it is clear that it is an expansive definition as the words used are "deemed to include", the rejection of plaint. The only bar is with regard to orders against which an appeal lies as an appeal from an order under Order 43 or an order dismissal for default as prescribed under Order IX.

8. It is also essential to notice that the mandate of Order 17 Rule 2 and 3. Order 17 Rule 2 prescribes the procedure to be followed where the parties failed to appear on the date fixed; the modes prescribed for the Court to follow are specified as those which are prescribed under Order IX. It is also essential to notice the mandate of Order 17 Rule 3 as amended in Allahabad which is as under:

"3. Court may proceed notwithstanding either party fails to produce evidence, etc. - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, -

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under Rule 2.

Allahabad High Court Amendments

In Rule 3, put a comma after the first word "where" and insert thereafter the words "in a case to which Rule 2 does not apply".

9. Thus the amended Order XVII Rule 3 in its applicability in State of UP reads as under:

"Where, "in a case to which Rule 2 does not apply", any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, -

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under Rule 2."

10. On a plain reading of Order XVII Rule 3, it is clear that the trial Court is entitled to dismiss the suit in case the parties failed to appear in terms of Order XVII Rule 2, however, where the parties appeared (either personally or through an agent or pleader) but fail to produce evidence or to perform any other act or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit within the time allowed, the Court is empowered to decide the suit forthwith under Rule 3 or in case the parties are absent, proceed under Rule 2. The Allahabad amendment to Order 17 Rule 3 makes it clear that the proceedings of Order 17 Rule 3 will apply only where the ingredients of proceedings under Order 17 Rule 2 are missing. Thus on a conjoint reading of the said two provisions, it is clear that in the case the parties failed to appear, the Court is empowered to proceed under Order IX and where the parties appear (either personally or through their agent or pleader) but fail to cooperate or to lead evidence or to cause the attendance of witnesses, the trial Court is empowered to proceed under Order 17 Rule 3. Thus clearly the judgment dated 26.05.1986 was a judgment traceable to the powers vested in civil court under Order 17 Rule 3.

11. Thus on the analysis above against the judgment dated 26.5.86 an Appeal lay and was rightly filed under Section 96.It is further borne out that no objection to maintainability of Appeal was ever raised by the Petitioner before the Appellate Court and is being canvassed for the first time before this court.

12. It is also essential to notice the mandate of Order 41 Rule 23 and Order 23(A), which are quoted herein below:

"23. Remand of case by Appellate Court-- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

23A . Remand in other cases-- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23."

13. In terms of the said provisions, the appellate Court is well and duly empowered to remand the matter under both the said provisions under Rule 23 and 23(A) as has been done by the impugned judgment.

14. Normally against a judgment passed in Appeal a Second Appeal is provided under Section 100 CPC except where an Appeal from order is prescribed under Order 43.In the present case it is essential to notice the mandate of Order 43 Rule 1(u) which is as under:

"1. "(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;"

15. On a conjoint reading of Rule 23 and 23(A) of Order 41, it is clear that the appellate Court is empowered to remand the matter, if it considers necessary, particularly against an order whereby the Court has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal and re-trial is considered necessary, clearly the order impugned in the present petition dated 20.11.2024 in regular first appeal no. 117 of 1996 is traceable to Order 41 Rule 23(A) against which an appeal is prescribed under Order 43 Rule 1(u) CPC, as such, the petition would not lie.

16. The submission of the counsel for the petitioner on the strength of the Judgment in the case of Transport Corporation of India (Supra) merits rejection for the reason that in the said judgment, this Court has noticed the following in para 22, which is as under:

"22. In the instant case, the suit was fixed for evidence of the plaintiff on the adjourned date. On the adjourned date the plaintiff failed to appear to adduce any evidence. The Court, therefore, proceeded in accordance with Rule 3 of Order 17 C.P.C. read with Rule 2 of Order 17 C.P.C. to dispose of the suit in one of the modes prescribed under Order 9 C.P.C. Since the defendant was present and plaintiff had failed to appear and adduce evidence the suit was dismissed in default. Therefore, the dismissal of the suit for want of evidence was essentially dismissal in default as contemplated by Rule 8 Order 9 C.P.C. Accordingly, it was open for the plaintiff to have applied under 9 Rule 9 C.P.C. for setting aside the dismissal on the fulfilment of the conditions laid down therein."

17. In this backdrop the court held that on the date fixed as the plaintiff was absent, the recourse available to the Court was under Order IX and not under Order 17 Rule 3 CPC and in that case, the judgment would not amount to a decree as defined under Section 2(2), there cant be any quarrel to the said preposition,however,the said judgment will have no applicability in the present case,as the suit was not decided in default or under Order IX and was clearly decided in exercising the power under Order 17 Rule 3 CPC as the plaintiff was present through counsel. The other argument of the counsel for the petitioner that an appeal could not have been filed under Section 96 CPC by the plaintiff, further merits rejection as no such ground was either raised or urged before the appellate Court leading to the judgment dated 20.11.2024.

18. For all the said reasons, the petition would not lie under Article 227 of the Constitution of India and the same is dismissed on the ground of availability of alternative remedy of an appeal under Order 43 Rule 1(u) CPC.

Order Date :- 7.4.2025

Arun