Subhash Mataji Pulate vs Laxmibai Somaji Khillare
2004 Latest Caselaw 1308 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. By this revision application, the original defendant challenges the order passed by the Civil Judge, Senior Division, Pusad, on 22-1-1998, in MJC No. 5 of 1994 whereby the said Judge allowed the MJC and restored Regular Civil Suit No. 94 of 1991 back to file. The said civil suit was dismissed in default on 21-12-1993 and the present respondent (original plaintiff) preferred application for restoration under Order 9, Rule 9 of Civil Procedure Code. The suit was filed for permanent injunction to restrain the present revision applicant and one Bakaram Nago Khillare from disturbing or otherwise interfering with possession and user of suit land by present respondent No. 1 as plaintiff. Bakaram Khillare was defendant No. 1 in that suit and present revision applicant Subhash is defendant No. 2 in that suit. Bakaram was joined as respondent No. 2 in this revision and he has expired during its pendency.

2. It appears that the said suit was fixed before the trial Court for evidence on 21-12-1993 and on that day, the plaintiff as also both the defendants were present. The adjournment application was filed and it was rejected. It appears that the trial Court has given several chances to original plaintiff to adduce evidence but she did not lead evidence and did not obey earlier directions given by the Court for that purpose. The trial Court, therefore, found that the plaintiff has failed to adduce evidence and prove her contention. It, therefore, dismissed the suit. The application for restoration was filed by the plaintiff-present respondent mentioning that the suit was instituted on 26-9-1991 and when it was fixed for evidence on 21-12-1993, talks regarding compromise has taken place between the parties and as such respondent could not lead the evidence. It is further mentioned that his Advocate was busy in another work and hence the application for adjournment was filed which came to be rejected. The deceased Bakaram in restoration proceedings filed his reply and conceded that talks of compromise were going on between the parties and therefore, respondent No. 1 could not lead evidence. However, the present revision applicant denied that any talks of compromised were going on between the parties and stated that the order of dismissal was just and proper and suit did not deserve to be restored back. The trial Court in the facts and circumstances of the case found that the talks of compromise were in fact going on between the parties and though respondent No. 1 adduced evidence, nothing to the contrary could be shown in her cross-examination. It has further found that present revision applicant did not adduce any evidence in rebuttal. It is in these circumstances that the trial Court on 22-1-1998 was pleased to allow the application and restore the suit back to file.

3. The original defendant No. 2- Subhash has filed this revision and only grievance made during argument before this Court is that the application under Order 9, Rule 9 of Civil Procedure Code for restorations of suit was not at all maintainable as the orders passed were orders under Order 17, Rules 3(a) as both the parties were present before the Court at the time of passing of order of dismissal of suit. It is the contention that the suit has not been dismissed in default as provided under Order 17, Rule 2 of Civil Procedure Code.

4. Shri Narwade, Advocate appearing for the revision applicant has stated that the order of dismissal is not passed under Order 9, Rule 8 of Civil Procedure Code and in fact it was an order under Order 17, Rule 3(a) of Civil Procedure Code. He has placed reliance upon the judgment in the case of S.B.I. v. Kumar Apparel Industries, reported at , in support of his submission. He has also contended that though this ground was not raised before the trial Court still as the trial Court did not possess jurisdiction under Order 9, Rule 9 of C.P.C., this order is void and this ground can be raised at any time. In support of this proposition, he has relied upon the judgment in the case of A.A.A. Dadabhai v. Hiralal Chimanlal, reported at ; in the case of Khardah Co. Ltd. v. Raymon and Co A.I.R. 1962 S.C. 1810.

6. As against this, Shri Deshpande, Advocate for respondent - original plaintiff has contended that the presence of parties before the Court on 21-12-1993 was not a presence as contemplated by provisions of Order 17, Rule 2 of C.P.C. and hence the Court has proceeded under Order 17, Rule 2 and has dismissed the suit as required by provisions of Order 9, Rule 8. He contends that therefore, the trial Court has correctly taken cognizance of the matter under Order 9, Rule 9 and has restored the suit back to file. He has further stated that in revision before this Court has very limited scope to interfere with the matter and the revision application, therefore, deserves to be dismissed. He has relied upon the judgment reported in the case of Prakash Chander Manchanda v. Janki Manchanda, reported at to contend that if parties remain absent and no evidence has been examined, the Court has no option but to proceed to disposed of the matter in accordance with Order 17, Rule 2 in any of the modes prescribed in Order 9 of Civil Procedure Code. He has relied upon the cases in the case of Venkatareddi v. Rangareddi, reported at A.I.R. 1946(33) Madras 491; in T. Suryamma v. A.P.S.E. Board, reported at ; in M. Suryarao v. P. Peddiyya, reported at and in Prashant v. Muni. Corporation Gr. Bombay, reported at , to contend that presence as contemplated under provisions of Order 17, Rule 3(a) is not merely a physical presence and it must be a presence for some purpose to further the prosecution of the suit pending before the Court. He, therefore, states that presence of parties on 21-12-1993 is not presence as contemplated by Order 17, Rule 3(a) and hence the trial Court has proceeded under provisions of Order 17, Rule 2 and has dismissed the suit under Order 9, Rule 8 of Civil Procedure Code. He further points out that there was no material before the Court to enable it to decide the controversy on merits and therefore also the impugned order cannot be treated as order under Order 17, Rule 3(a). He has placed on record the dictionary meaning of word 'decide" and contends that dismissal of suit in the absence of any material on record is not a decision as contemplated by Order 17, Rule 3(a) of C.P.C. He has also cited before the Court, cases in which new point has not been allowed to be raised for the first time and contends that as the objection regarding tenability of application under Order 9, Rule 9 was not raised before the trial Court, such objection should not be allowed to be raised in this Civil Revision Application. He has also placed on record rulings to point out scope of revisional jurisdiction of this Court under Section 115 of Civil Procedure Code. He contends that there is no jurisdictional error and as such, this Court should not interfere with the matter.

7. When the order dated 21-12-1993 is perused, it clearly shows that though plaintiff as also defendants were present, their purpose was only to obtain adjournment in view of the talks of compromise going on between the parties. They were not appearing before the Court for the purposes of prosecuting further their Civil suit. The fact of such appearance is considered by this Court in judgment reported at of this ruling are important. The said paras read as under :

"15. At this juncture, it will also be useful to refer to the provisions of Order 17, Rule 3 so as to complete the chain of procedure to be followed while trying the suit. The difference in phraseology of Rule 2 and Rule 3 has been discussed on a good many occasions by this Court and other High Courts. Rule 3 is not in terms confined to default of appearance as is Rule 2, though Rule 3 may be brought into operation in default of appearance. Rule 3 provides that 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, proceed to decided the suit forthwith. That rule is directed to the failure by one of the parties to do an act for which he has been allowed time, and on that failure the Court may proceed to decide the suit forthwith. But even under Rule 3 the Court must have material to enable it to exercise its proper discretion by deciding the case on" merits.

21. On the backdrop of the order sheets referred to in para (2) (supra), the possibility of plaintiffs expecting certain directions from the trial Court cannot be ruled out. It appears that the plaintiffs were under bona fide impression that directions must be issued by the Court trying the suit for discovery, inspection and production of documents etc. If this picture was given by the trial Court through its order sheets, then without issuing necessary directions, with respect to the discovery and production that too; when the plaintiffs were found to be not ready with their evidence, can it be said that the trial Court was justified in treating the mere physical presence of the litigant as appearance for the purposes of prosecuting the suit. This point has been elaborately dealt with by some of the High Courts in India like those in Manannisa v. Ramkalpa Gorain, 1907 I.L.R. 34 Cal. 235, Satishchandra v. Ahana Prasad, 1907 I.L.R. 34 Cal. 403(F.B.), Lalji Sahu v. Lachmi Narain, A.I.R. 1918 Patna 351. In all these cases, it has been uniformly held that appearance (mere presence) does not mean physical presence of the party concerned, but appearance must be purposeful for the purpose of prosecuting the case or suit pending in the Court. In other words, appearance/presence should be for the purposes of taking part in the proceeding and that it includes preparedness to cite evidence and/or to produce documents or to take any other step for disposal of the suit/case as may be considered necessary. Therefore, if a party to a suit for some reason or other is precluded from being ready to take part in the prosecution of the suit but somehow manages to come with a view that the case should be got adjourned for some other day, his appearance in such a circumstance will not amount to an appearance as contemplated under Order 17, Rule 2 of Civil Procedure Code. In this view of the matter, the appearance of the plaintiff on 30-8-2001 was no appearance for the purpose of the suit.

22. In this view of the law, therefore, mere fact that the plaintiff No. 2 was present in the Court at the time when the suit was called for dismissal on 30-8-2001, cannot, on the facts of this case, provide for any valid ground for holding that the plaintiffs were present in the Court and in spite of that, they defaulted in taking part in proceedings or were guilty of by passing the Court, In the facts and circumstances, the plaintiffs were justified in praying for adjournment and, therefore, in my opinion, the Court below was wrong in refusing to grant adjournment, merely on the technical ground that one the plaintiffs was physically present in the Court and was not ready to proceed with the suit."

Thus the learned Single Judge has found that mere presence of plaintiff No. 2 on 30-8-2001 is not sufficient and it was not effective presence. The said ruling and observations made thereunder apply with full force to the facts of the present case.

8. Advocate Shri Narwade, appearing for the revision applicant has placed reliance upon the judgment reported at . It appears that there the suit was fixed on 28-11-2001 for framing of issues and at that time the Advocate for the plaintiff appeared and informed that he was not ready to go on with the matter and hence the learned Single Judge dismissed the suit for non prosecution. The plaintiff thereafter applied for restoration under Order 9, Rule 9 of Civil Procedure Code. The arguments before the learned Single Judge as are apparent from para 6 are that the learned Single Judge while dismissing the suit did not state so for non-appearance of plaintiffs. The learned Single Judge after keeping reliance on some cases has found that provisions of Order 9, Rule 8 apply only when defendants appeared and plaintiffs do not appear and has given plain and natural meaning to the phrase does not appear and has held that the cases where Advocate appeared, cannot fall under said provisions. The question whether appearance of a plaintiff as required by provisions of Order 17, Rule 3(a) to be an effective and purposeful appearance, was not involved and has not been considered in this case. Therefore, said case has no application in the facts and circumstances of this revision.

9. In judgment reported at 2002(4) Bom.C.R. 363, the facts reveal that the plaintiff appeared along with his Counsel and requested for adjournment mentioning that only plaintiff No. 2 was present and he was not ready with the evidence. The High Court has observed that though Counsel for the plaintiff was present, he did not take any steps to proceed with the suit. The provisions of Order 17, Rules 2 and 3 are considered in this background and in para 15 it is observed that under Rule 3 a provision is made which enables the Court to proceed to decide the suit forthwith on failure of one of the parties to do an act for which time was granted to him. It is observed that the Court must have material to enable it to exercise its proper discretion by deciding the case on merits. In para 21 of this ruling, it has been observed that appearance as required does not mean physical presence of the party concerned but such appearance must be purposeful for the purposes of prosecuting the case or suit pending in Court. In other words, It is laid down that appearance/presence should be for the purpose of taking part in proceedings and it therefore envisages readiness to lead evidence and/ or to produce documents or to take such other steps as are required for further prosecution/disposal of the suit. It is in this background that the Court in 22 expressed that mere presence of plaintiff No. 2 before that Court at the time of disposal of suit on 30-10-2001 cannot provide a valid ground for holding that plaintiffs were present in the Court. In para 25, the learned Single Judge has held that in the facts of the case, it was not open to the trial Court to hold that the parties were not at issue and proceed to dismiss the suit under Order 15, Rule 1 of the Civil Procedure Code. It is observed that the only way left to Court to proceed with Order 9, Rule 8 of C.P.C. treating the plaintiffs as absent when the suit was called for hearing. Thus, this ruling squarely covers the controversy.

10. Even in judgment of the Hon'ble Apex Court reported at while considering the provisions of Order 17, Rule 2 and Rule 3, the Apex Court has explained the situation as under :

"6. In some decisions, the High Courts have gone to the extent of saying that even if the trial Court disposes of the matter as if it was disposing it on merits under Order 17, Rule 3 still if the party against whom the decisions was pronounced was absent it could not be treated to be a disposal in accordance with Order 17, Rule 3 and provisions of Order 9 will be available to such a parry either for restoration or for setting aside an ex parte decree. Learned Counsel placed before us a number of decisions of various High Courts on this aspect of the matter. But in our opinion in view of the amendment to these two Rules which have been made by 1976 amendment of the Code of Civil Procedure it is not disputed that to the facts of this case, Code of Civil Procedure as amended will be applicable and therefore it is not necessary for us to go into that question. Order 17, Rule 2 and Rule 3 as they now stand reads:

Order 17, Rule 2. Procedure if parties fail to appear on day fixed. -Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.

Explanation. - Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.

Order 17, Rule 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.

It is clear that in cases where a party is absent the only course as mentioned in Order 17, Rule 3(b) is to proceed under Rule 2. It is therefore clear that in absence of the defendant, the Court has no option but to proceed under Rule 2. Similarly the language of Rule 2 as it now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The Explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a parry which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure. It is therefore clear that after this amendment in Order 17, Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on October 30, 1985 the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. October 30, 1985 when the trial Court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to Order 17, Rule 2 was not applicable at all. Apparently when the defendant was absent Order 17, Rule 2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under Order 9."

Thus, it is clear that if one of the parties remains absent and that party has not led any evidence, the Court has to proceed to dispose of the matter in accordance with Order 17, Rule 2 of Civil Procedure Code in any one of the modes specified by Order 9 of the Civil Procedure Code.

11. Para 7 of said ruling of Apex Court further reveals that the suit could not have been decided on merits and it is not an order of trial Court under Order 17, Rule 3(a). In this background when the other judgment of this Court reported at is considered, it is clear that such a controversy did not arise and has not been considered therein. There on relevant date i.e. on 29-11-2001, suit was fixed for framing issues and the Advocate for the plaintiffs appeared and stated that he was not ready to go on with the matter. The suit was therefore, dismissed for non-prosecution. It is thus clear that there was no material before the trial Court to proceed to decide the suit on merit. The above judgment of the Hon'ble Apex Court was not pointed out in that case and even the earlier judgment of Single Judge of this Court in was not brought to the notice. This ruling, therefore, has no application in the facts and circumstances of the present case.

12. In present revision though both the parties were present, it is apparent that they were not ready and willing to go on with the trial of the suit because of talks of compromise going on between them and also there was no material before the trial Court to enable it to decide the suit on merits as required by Order 17, Rule 3(a) of Civil Procedure Code. Hence, under the circumstances, the impugned order cannot be read as an order under Order 17, Rule 3(a) of Civil Procedure Code. The trial Court has dismissed the suit in default on 21-12-1993 and has correctly entertained the application under Order 9, Rule 9 of Civil Procedure Code and has correctly restored the suit back to file by its judgment dated 22-1-1998.

13. The other points regarding scope of revisional jurisdiction or points being raised for the first time need not be gone into in this revision because of view taken herein.

14. In the circumstances, I do not find any merit in the civil revision application. Civil revision application is dismissed. There shall be no order as to costs.