IB'B,r"'TnB;':Si!:l:':!.:'>?M':;1;'sl^;c£''; COURT OE 1 !e Bench: First ApDeaiI^o._208/|OQ6 Hon'bie Shri D'i.'s Raosaheb Deshmukh. J. la-f. etsnaani Smt. Kunibai wldow of !ate umend, servlce, 'ndustria! ReSationship Department, Contract Labour Section, Shed No. 61, Oid Administrative Bhavan, Bhiiai Stesi Piant R/o viiiage and post Khopaii, P.S. Utai, Tah. & Disst. Durg if. n 'S v"•*-'•/ Rei (Piaintjff] Vishwanath Sahu son of late Amar Singh Sahu, aged about 55 years R/o House 1/B, Road-1, Sector-7, Bhilai Nagar. )N 96 C.P.C. R/w Order 41 Rule 1 of the Code_otCl','i! Procedure. 190S Present- Shri Surya Kant ?v'iishra, counsei for the appeiiant. Shri M.K. Bhaduri,counse! for the respondent. ORAL JUDGMENT?ORD@ (Passsd on this 3rd day of May, 2007) Shri Surya Kant Mishra, learned counsel for ths appeliant did not prsss on application ^f!.(C).P. No. 2231/2006 for grant of stay of execution vi/hich is accordingly dismissed as not pressed. 2. Both the learned counsei pray that this appeal be heard and disposed of finally at the stage of admission. 3. Heard finaily. 4. Brief facts are that the respondenypiaintiff instituted a suit Tor recoven/ of Rs.1,94,400^- aaainst the aDoeilant/defendant on the basis of a promissory note dated 19.8.2000 executed by the appeliant/defendant acknowiedging the receipt of ioan of Rs.81,000/- and also promising to pay.interest @ 4% per month thereon. 5. The aDDellant/defendant resisted the suit and denied that anv promissory note vi/as executed by her or that any ioan was advanced to her by the respondent/'piaintiff. S. The evidence of the respondent/piaintiff was ciosed on 8.11.2004. On 24.11.2004, 17.12.2004 and 17.01.2005, though ihe suit was fixed for recording the evidence of the appellant/defendant she did not keep her witnesses present. On 17.1.2005 i.e. the date for svidence an appiication under Order 8 Rule 17 C.P.C. was moved bv the aDpeiianVdefendant alleging that she had learnt that the resDondent/oiaintiff who was an aaent of Lire Insurancs CorDoration of India and on whose motivation the apps!!anb'defendant had opened an Accouni in L.I.C. and taken a policy on 9.9.2002, had during the course of opening of account, forged the promissory note dated 19.8.2000. 7. Upon such an application being nled on 17.1.2005, the Firsi Addltional District Judge adjourned the suit to 15.2.2005 for hearina on the applicaaon under Order 8 Ruie 17 of C.P.C. On 15.2.2005, the appeiiant/defendant and her counsel rernained absent. The iearnea lower Court closed the appeliant'defendant's cass and instead of proceeding to pi-onounce judgment again adjour'ned. the suit to 21.2.2005. On 13.2.2005, the appeiiant/defendant moved an application under Order 9 Rute 7 of C.P.C. for being hearci in answer fo the suit while showina aood cause for non-appearance on 15.2.2005. -The lower Court rejected both the applications j.e. application under Order 6 Ruie 17 ofC.P.C. as also the appiication under Order 9 Rule 7 of C.P.C vide order dated 10.03.2005 and deiive.'ed the impugned judgmenf and decreed the suit for a sum ot' Rs.81,000/- aiong with interest @ 6% per annum from 19.8.2000 tiiS payment in favour of respondenyp'aintiff. irfRW^E s 8. Shri Surya Kant Mishra, teamed counsel for the appeilant contsnded that the rejection of appiication under Order 6 Rule 17 of C.P.C. as aiso the application under Order 9 Rule 7 of C.P.C. by the iower Court was contrary to iaw and has occasjoned failure of iustice. It was urged that uoon an aDDslcatlon being fiied under Order 6 Ruie 17 of CPC. the suit was adiourned for reoiv on the said aDpiication. Therefore. the iower Court srred in closing the evidence of the appellant/defendant on 15.2.2005. It was aiso urged t'nat the order dated 10.3.2005, rejecting the aDOlication under Order 9 Rule 7 of C.P.C. v/as contrarv to iavv since the iower Court instead of taking a pragmattc and iiberai view rejected the appiication on a hlghty technical ground. On these premises, it was urgsd that w'niie aiiowing the appeal and the appiicatlons under Order 9 Ru!e 7 and Order 6 Ruie 1 7 of C.P.C. the matter should be remanded to the iov/er Court for giving an opportunlty to the appeiiant'defendant to adduce evidence. On the other hand, Shri Fvl.K. Bhaduri, iearned counse! for rssDondent'/Diaintiff araued in support ofimDugned iudgmentand decree. 9. Having heard rival contentions, i have perused the record of Civii Suit No. 01-B/2005. !t is pertinent to note that on 17.1.2005 fixed for recording the evidence of the 'appeiiant/det'endant, upon filing an appiication under Order S Ruie 17 of CPC by the appeiiantf'defendant, the suit was adjoumed to 15.2.2005 for repiy o'h the said appfication. Instead of deciding the appilcation under Order 6 rule 17 of C.P.C. on 15.2.2005 and thersafter fixing a date for recordinc evidence of t'ne defendant, or proceeding ex parte'against the defendant on 15.2.2005 and adjoumin| the hearing of suit for the next date, the iower Court ciosed the opportunity of the defendant to iead evidence and thereafter, aiso rejected the w aoptication under Order 9 Rule 7 of C.P.C. fiied bv the appeilant/defendan' whoiiy on untenabie grounds. 10. The lower Court falled to notic®that the defendant 'nad shown sufficlent cause for non-appearance on 15.2.2005 and had with due diligence fited the appiication under Order 9 Ruie 7 of C.P.C. on 21.2.2005. The lower Court also faiied to notice that the promissory note did not bear signaiure of any witnesses and the facts sought to be amended were materiai for iust declsion ofthe suit. 11. Under Order 17 Ruie 3 C.P.C. if on the adjourned date of hearins for recording evidence the defendant remains absent, the Court has no option but to proceed under Order 17 Rule 2 C.P.C., which reads as ii": 2. Procedure if parties fall to appear on day fixed.— ^ Where, on any day to whlch the hsaring of the sust is adjoumed, the parties or any of them faii to appear, the Court may proceed to dispose ofthe suit m one ofthe modes directed in that behaif by Order IX or make such other order as it thinks fit. Explanstion.-—Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party faiis to appear on any day to which the hearing ofthe suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. 12. The exDianatlon to ruie 2 aDDiies onlv where a part or the evidence of any pariy has been recorded and such party faits to appear on any date to which the hearing of the suit is adjourned. it is only in such a case the Court has jurisdiction to proceed with the case as if such party was oresent. in this cas®,the evidence of the defendant had not begun and therefore, on 15.2.2005 the Court could not close the evidence of the defendant since it had not even begun. •is^.t,sa Ba ^^^^^!^?^^^^^ W 13. I am of the considered opinion that by shutting the opportunity of the defendant to lead evidence before it had begun, on a date fixed for reply ofthe appiication under Order 6 Rule 17 C.P.C. and aiso by rejecting the appiications under Order 9 Ruie 7 and Order 6 Ruie 17 of C.P.C., failure ofjustice has occasioned. This is a fit case in whteh after altowina the applications under Order 9 Rule 7 and Order 6 Ruie 17 of CPC, the matter shouid be remanded to the lower Court. 14. The appea! is aiiowed. The applications under Order 9 Ruie 7 of C.P.C. as also under Order S Rute 17 of C.P.C. are ailowed. The Searned lower Court shail arter giving opportunify to the appeiiant'defendant to incorporate the amendment and giving opportunity So the plainiiff for making consequential amendment, if any, and to the parties to iead evidence shal! thereafter decide th®suit on merits. Parti'es are directed to appear before the iower Court on 26 June, 2007. On receipt of a copy of this order, the trial Court shail endeavour to decjde the suit in accordance v/ith law within a Deriod of fhree months from the date of aDoearance i.e. 26'" June. 2007. Sd/- Dilip Raosaheb Deshmukhi Judge Kvr