IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 2448 of 2001 Date of Decision: 25.8.2009 Surjit Kaur and others --Petitioner Versus Bant Kaur --Respondent CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. J.S. Toor, Advocate for the petitioner. Mr. Ashish Gupta, Advocate for respondent. *** PERMOD KOHLI.J (ORAL) This revision is directed against the order dated 20.4.2001, whereby the suit filed by the respondent, dismissed on 21.3.1996 has been restored. The suit of the respondent was dismissed vide order dated 21.3.1996. The dismissal order reads as under:- “ Present: Counsel for the parties. Again no evidence of the plaintiff present. Even the plaintiff is not present today. The plaintiff has also availed numerous opportunities to produce her evidence. She was granted last opportunity in this stage. She has not produced any evidence so far. No reason has been given as why the plaintiff or her evidence is not present today. So the evidence of the plaintiff is closed by order of the court. Since there is no evidence produced by the plaintiff, her suit is dismissed. File be consigned to the record room. Announced in open court.” Respondent-plaintiff made an application dated 25.9.1996 Civil Revision No. 2448 of 2001 -2- seeking restoration of the suit with the following averments: “ Bant Kaur Vs. Surjit Kaur w/o Bhajan Singh Gagar Majra, the. Khanna, Distt. Ludhiana. Application for the restoration of the suit dismissed in default on 21.3.1996. Sir, The applicant/plaintiff submits as under:- 1. That the counsel for the plaintiff was away to attend some court work at Fatehgarh Sahib, so the counsel could not attend the court on 21.3.1996 and the suit was dismissed in default due to reason stated above. 2. That it is in the interest of justice that the suit which is dismissed in default on 21.3.96 be restored. 3. That the absence was not intentional, but due to the circumstances beyond the control of the counsel. 4. That the plaintiff wants to contest the suit. 5. That the application is being filed with bonafide intention and within time. It is therefore, prayed that the suit titled above be restored.” The Trial Court framed following issues in the said application: “ 1. Whether the suit dismissed in default on 21.3.96 is liable to be restored?OPA 2. Whether the application is not within time? OPR 3. Relief.” After allowing the parties to lead the evidence the Trial Court allowed the application. While deciding the issue no.1 the Trial Court held that the application for restoration is maintainable. Civil Revision No. 2448 of 2001 -3- Isssue no.2 was also decided in favour of the applicant. The Trial Court held that applicant was ill, hence the application was within time. I have heard learned counsel for the parties. At the first place the suit was dismissed in presence of the counsel for the parties and for non-production of the evidence of the plaintiff. The petitioner has also placed on record copy of the order dated 8.2.1996, which reads as under: “ Present: Counsel for the parties. No PW is present. Counsel for the plaintiff prayed for adjournment, which is allowed in the interest of justice. Now to come up for Pws on 21.3.1996 at his own responsibility. This is the last opportunity.” This order was also passed in presence of counsel for the parties and the case was adjourned to provide further opportunity to the plaintiff to produce the evidence as a last opportunity and the next date was fixed for 21.3.1996. On 21.3.1996 no evidence was produced by the plaintiff. Even though, the counsel was present, the court by closing the evidence dismissed the suit. Admittedly, the application was filed for restoration as if the suit was dismissed for default of appearance, whereas, the fact of the matter is that the suit was not dismissed for default of appearance but on account of non-production of the evidence despite last opportunity. The application was also made after about six months. Even the limitation prescribed under the Indian Limitation Act is 30 days from the date of dismissal. No application for condonation of delay was filed. The Trial Court without there being any application seeking condonation decided issue no.2 in Civil Revision No. 2448 of 2001 -4- favour of the respondent-applicant and held the application for restoration within limitation. This order itself is illegal and unwarranted. Hence the decision on issue no.2 is also not sustainable. The main controversy relates to issue no.1. The suit was dismissed in presence of the counsel for the parties on account of failure of the plaintiff-non applicant to produce the evidence. Order 17 deals with such situations. Order 17, Rule 2 reads as under:- “ 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 IX or make such other order as it thinks fit” Under the aforesaid provision, where the case is adjourned for any purpose and the parties or anyone of them fail to appear the Court has to proceed to dispose of the suit in the mode prescribed under Order 9. Order 9 Rule 3 provides for dismissal of the suit, where none of the parties appear. Under Order 9 Rule 4 the dismissal of the suit can be set aside on an application made by the party. Where the plaintiff fails to appear and defendant appears the suit can be dismissed under Order 9 Rule 8 and same can be restored by making an application within the prescribed time under Order 9 Rule 9 CPC. Thus Order 17 Rule 2 provides that where the parties do not appear the procedure under Order 9 has to be adopted. Thus, where both the parties are absent the suit can be dismissed under Order 9 Rule 3 and restored under Order 9 Rule 4. However, where the plaintiff fails to appear and the defendant is present, the suit can be dismissed under Order 9 Rule 8 and restored under Order 9 Rule 9. In the present case counsel for Civil Revision No. 2448 of 2001 -5- both the parties were present when the suit was dismissed. Thus the procedure prescribed under Order 17 Rule 2 read with Order 9 Rule 9, referred to above has no application. Order 17 Rule 3 prescribes for penal action, if, either of the parties fails to produce any evidence or do any other act. Order 17 Rule 3 reads 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, nothwithstanding 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.” From the bare reading of the aforesaid provision, it is crystal clear that where any party to a suit has been granted time to produce evidence or cause attendance of the witnesses or to perform any other act, necessary for the further progress of the suit fails to do so, the court can decide the suit forthwith. However, where the parties or anyone of them is absent, the procedure prescribed under Order 17 read with Rule 9 is to be followed. Otherwise the procedure, prescribed under Rule 3 is to be adhered to. In the present case the counsel for the parties were present and the plaintiff-respondent was granted last opportunity to produce the Civil Revision No. 2448 of 2001 -6- evidence on 21.3.1996. On the said date suit was dismissed in presence of counsel for the parties. Hence, it cannot be said that the parties were absent. Mr. Gupta, learned counsel appearing on behalf of the respondent has however, argued that with a view to attract the provisions of Order 17 Rule 3, it is necessary that the party in person, who is under obligation to produce evidence must be present and if the party is not present, the counsel is unable to produce the witnesses and the appearance of the counsel cannot be consrued as appearance of the party. In order to support his contention, he has relied upon judgement of the Kerala High Court reported as 1992 Civil Court Cases 42 (Kerala). In the aforesaid judgement on the adjourned hearing the counsel for the plaintiff was present but the plaintiff was absent. An application for adjournment on the request of the counsel for the plaintiff that he is not ready to proceed with the trial was rejected and consequently the suit came to be dismissed. An appeal was preferred before the High Court. One of the questions raised was whether the appeal is maintainable as the dismissal could be construed under Order 17 Rule 2 read with Order 9 Rule 8 or under Order 17 Rule 3. The Court came to the conclusion that when the appeal is not maintainable and the remedy of the plaintiff- applicant was to prefer an application under Order 9 Rule 9 or under Order 9 Rule 13, if, the decree is passed and the appeal was held to be not maintainable. Further reference is made to another judgement of the same Court, reported as 2008 (1) Civil Court Cases 321 (Kerala). In this case the Kerala High Court again relying upon a number of judgements of that Court and some other courts, held that where the appearance of the counsel, who does not do anything other than to apply for adjournment, will not constitute Civil Revision No. 2448 of 2001 -7- appearance of the party for the purpose of Rule 3 Order 17. Relevant observations of the Court are reproduced hereunder:- “ 24. The Division Bench of the Madras high Court in Ellammal v. Karuppan Chetti (AIR 1936 Mad. 625) has also taken the view that appearance by a counsel who does not do anything other than to apply for adjournment will not constitute appearance of party for the purpose of R.3 of O.XVII. The Madras High Court in Pazhaniandi's case (supra) has gone to the extent of holding that even mere physical presence of a party in court when his vakeel applied for adjournment and the adjournment was refused will not amount to appearance by the party for the purpose of R.3 of O.XVII. The Supreme Court has observed in Sang Ram Singh v. Election Tribunal, Kotah (AIR 1955 SC 425) that our laws on procedure are based on the principle that as far as possible the proceeding in a court of law should not be conducted to the detriment of a person in his absence. Physical presence without readiness to co-operate for anything connected with the progress of the case does not serve any useful purpose in deciding the case on merits and the policy of courts which are established for subserving the cause of justice is to facilitate the adjudication of causes on their merits rather than by default. As observed by S.Padmanabhan, J. in Divakara Panicker's case (supra), the power to decide the suit on merits under O.XVII R.3(a) seriously restricts the remedy of the losing party for redress. It could not have been the legislative intent to place an absentee party in a more advantageous position than a party who is present but is unwilling to co- operate on a given reason.” On the basis of the dictum of the aforesaid two judgements, it is sought to be pleaded on behalf of the respondent that the case in hand falls Civil Revision No. 2448 of 2001 -8- under Order 17 Rule 3 and the procedure provided under Order 9 Rule 9 was to be followed and thus the respondent-plaintiff had rightly applied for restoration of the suit under Order 9 Rule 9. It is further argued that in the application it was also mentioned that the counsel was absent on the date of dismissal of the suit. The respondent has not placed on record, either before the Trial Court or before this Court any evidence or even an affidavit of the counsel appearing for respondent in the Trial Court that he was absent on the date of dismissal of the suit. To the contrary the Court order clearly demonstrate the appearance of the counsel. Thus, no credence can be given to the argument or even an averment in the application regarding the absence of the counsel. Sanctity has to be attached to the order of the court unless rebutted by any credible material/evidence which is absent in the present case. Hence, the contention of the counsel of the respondent that the counsel for the plaintiff was absent on the date of dismissal deserves to be rejected. Order 3 deals with the appearance etc. on behalf of the parties. Order 3 Rule 4 reads as under: “ Appointment of pleader.-(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorized by or under a power of attorney to make such appointment. (2). Every such appointment shall be (filed in Court and shall for the purpose of sub-rule (1) be) deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, Civil Revision No. 2448 of 2001 -9- or until all proceedings in the suit are ended so far as regards the client.” From the reading of the aforesaid two provisions in conjuction, it appears that where a pleader is engaged by a party and has filed his power of attorney, he is entitled to appear and act on behalf of the party, which inter alia includes to tender the evidence and examine/cross-examine the witnesses. Thus, a pleader/lawyer engaged by the party is fully authorized, empowered and competent to act on behalf of the party, who engaged him for all purposes. The personal absence of party on the date of hearing, where the counsel is present does not amount to absence of the parties as the party is duly represented by a competent person authorized by law to represent him/her. Even in the Kerala High Court judgement, referred to and relied upon by Mr. Gupta, it is clearly provided that the party shall be deemed to be present only, where the counsel expresses his unability to proceed further for the progress of the trial. In the present case no such statement was made by the counsel that he is unable to proceed with the trial, nor there is any averment in the revision petition or the application filed by the respondent for the restoration. To the contrary the ground for the application was that the counsel was absent, which averment does not seem to be correct in view of the recording of the appearance of the counsel in the impugned order itself. The issue whether in such circumstances the provisions of Rule 2 of Order 17 or Rule 3 thereof will apply, has also been considered by the Hon'ble Apex Court in Prakash Chander Manchanda and another v. Smt. Janki Manchanda, AIR 1987 Supreme Court 42, wherein following observations have been made:- Civil Revision No. 2448 of 2001 -10- “ It is clear that in cases where a party is absent only course is as mentioned in O.17(3)(b) to proceed under R9. It is therefore, clear that in absence of the defendant, the Court had no option but to proceed under R.2. Similarly the language of R.2 as 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 O.9. The explanation to R.2 gives a discretion to the Court to proceed under R.3 even if a party is absent but that discretion is limited only in cases where a party 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 O.17 R.2 in any one of the modes prescribed under O.9, Civil P.C. It is therefore clear that after this amendment in O.17 R.2 and 3, Civil P.C 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 30.10.1985 when 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. 30.10.1985 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 O.17 R.2 was not applicable at all. Apparently when the defendant was absent O.17 R.2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under O.9.” Civil Revision No. 2448 of 2001 -11- In the aforesaid judgement Hon'ble Supreme Court has held that it is only where the party was absent that the provision of Order 17 Rule 3(b) read with Order 17 Rule 2 and Order 9 will apply and the restoration application can be filed. However, in a circumstance, where no evidence is led and the party fails to produce the evidence and the parties were present, the Court has the option to proceed under Order 17 Rule 3 (a) which procedure has been adopted in the present case. Where a suit under Order 17 Rule 3 (a) is decided it amounts to decree and the remedy is by way of appeal under Section 96 of CPC. Learned counsel appearing for respondent has however argued that appeal under Section 96 is provided, where a decree is passed and in the present case no decree was passed. Since the suit was dismissed it amounts to passing of a decree nothwithstanding the fact that a decree sheet has not been framed formally. Order 20 Rule 6(a) deals with the preparation of decree and reads as under:- “ 6-A. Preparation of decree.- (1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and in any case, within fifteen days from the date on which the judgement is pronounced. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purpose of rule 1 of order XLI be treated as the decree. But as soon as the decree is drawn, the judgement shall cease to have the effect of a decree for the purpose of execution or for any other purpose.” Civil Revision No. 2448 of 2001 -12- This rule makes obligatory upon the Court to prepare a decree not later than 15 days. However, sub rule 2 permits a party to file an appeal even without decree being prepared on the basis of the judgement and the copy of the decree could be produced later as and when prepared. Thus, the respondent was required to prefer an appeal irrespective of non-preparation of the decree. On account of the aforesaid circumstances, this petition is allowed. The impugned order dated 21.3.1996 restoring the suit is hereby set aside and the suit of the plaintiff-respondent is dismissed without any order as to costs. (PERMOD KOHLI) JUDGE 25.8.2009 lucky Whether to be reported to the Reporters? Yes.