RSA No.1418 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1418 of 2010(O&M) Date of decision: 7.7.2010 Rano Devi and others ......Appellant(s) Versus Rajinder Kumar Yadav and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sandeep Arora, Advocate for the appellants. Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby their suit for possession by way of partition was dismissed under the provisions of Order 17 Rule 3 CPC. As per averments made in the suit, the appellants filed a suit for possession by way of partition of the suit property with a declaration to the effect that they were joint owners of the property to the extent of 1/3rd share left by Moti Lal, who died intestate and that the defendants had got no right, title or interest therein and further to deliver the vacant possession of 1/3rd share of the property to the plaintiffs with consequential relief of permanent injunction restraining the defendants from alienating any portion of the suit property more than their share. The suit on behalf of plaintiffs No.2 to 4, who were minors, was filed through plaintiff No.1 being mother and natural guardian of the aforesaid plaintiffs. It was further asserted that when the defendants had started threatening them to oust RSA No.1418 of 2010(O&M) 2 from the property, a suit for permanent injunction was filed. The defendants appeared in the said suit and filed their written statement. During the pendency of the suit, they assured the plaintiffs to partition the property on withdrawal of the pending suit. Relying on their fake assurance, the plaintiffs withdrew the suit. But in order to grab the entire property, the defendants forcibly ousted the plaintiffs from the suit property and took possession of the entire property. The defendants refused to admit the claim of the plaintiffs and proclaimed themselves to be the exclusive owners of the property which had cast a cloud over their legal rights. Hence, the suit. Upon notice, the respondents appeared and contested the suit by filing written statement raising various preliminary objections. On merits, the defendants denied that the parties to the suit are the only legal heirs of deceased Moti Lal. It was further denied that the suit property was an ancestral property. It was pleaded that husband of plaintiff No.1 never resided in the disputed house which is owned and possessed by the defendants exclusively. It was also denied that after the death of Moti Lal, the parties to the suit became the joint owners of the property to the extent of 1/3rd share each. Filing of earlier suit by the plaintiffs was admitted but it was denied that during the pendency of the said suit, the defendants assured the plaintiffs to partition the property. All other averments were denied and dismissal of the suit was prayed for. From the pleadings of the parties, the following issues were framed: 1. Whether the plaintiffs are entitled to the relief of declaration that they are the joint owners in possession of the suit property to the extent of their 1/3rd share on the basis of inheritance from Moti Lal? OPP RSA No.1418 of 2010(O&M) 3 2. Whether the plaintiffs are entitled to the relief of possession by way of partition of the suit property as fully detailed and described in the head note of the plaint? OPP 3. Whether the plaintiffs are entitled to the relief of mandatory injunction directing the defendants to deliver and hand over physical vacant possession of 1/3rd share of the property to the plaintiffs? OPP 4. Whether the plaintiffs are entitled to the relief of permanent injunction for restraining the defendants, their agents, attorneys employees etc. from alienating any portion of the suit property more than their share and from parting with the suit property in any manner? OPP 5. Whether the plaintiffs have no locus standi and cause of action to file the present suit? OPD 6. Whether the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties? OPD 7. Whether the suit of the plaintiffs is not maintainable? OPD 8. Whether the plaintiffs have come to the court with clean hands and suppressed material facts? OPD 9. Relief.” The plaintiffs availed number of opportunities to produce their evidence but failed to produce any evidence despite having been granted last opportunity. The trial Court closed the evidence of the plaintiffs by order dated 9.9.2008 declining further adjournment and after hearing learned counsel for the parties, dismissed the suit under the provisions of RSA No.1418 of 2010(O&M) 4 Order 17 Rule 3 CPC. The plaintiffs filed an appeal before the Lower Appellate Court challenging the aforesaid judgment and decree of the trial Court. While dismissing the appeal, the Lower Appellate Court observed that from perusal of the record of the trial Court, it is established that opportunities were granted subject to payment of costs but neither costs were paid nor any witness was examined and therefore, the order passed by the trial Court was correct. The Lower Appellate Court also recorded a finding that since there was no evidence on record of the case, no interference was required in the judgment and decree of the trial Court. Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the trial Court erred at law as it could not have proceeded under the provisions of Order 17 Rule 3 CPC as the appellants were not present and it could have resorted only to provisions of Order 17 Rule 2 CPC and therefore, the following substantial questions of law arise in this appeal: “1. Whether the impugned judgment of the courts below dismissing the suit of the plaintiffs under Order 17 Rule 3 CPC were legally not sustainable when the plaintiffs were admittedly co-sharers in the disputed property entitled to have their share partitioned if so the extent of their share? 2. Whether the impugned orders of the trial Court ordering closure of evidence under Order 17 Rule 3 CPC and dismissing the suit of the plaintiffs on that ground were legally not sustainable without safeguarding the interest of the minor appellants if so its RSA No.1418 of 2010(O&M) 5 effect?” I have heard learned counsel for the appellants and perused the impugned judgment and decrees. I have also perused the judgment relied upon by the learned counsel for the appellants. Undisputedly, at the time of passing the judgment and decree by the trial Court, the appellants were being represented by their counsel. However, the argument raised before this Court is that in Rule 3(a) of Order 17, the words “if the parties are present” would mean the plaintiff or defendant as the case may be and not their respective counsels. The argument raised is hyper technical and absurd and cannot be accepted on the face of it. Learned counsel has not relied upon any judgment or Rule of Interpretation to raise the aforesaid argument. The Hon'ble Apex Court in Pushpa Devi Bhagat (D) The LR. Smt. Sadhna Rai v. Rajinder Singh & Ors. 2006(3) RCR (Civil) 479, after relying upon its judgments in Byram Pestonji Gariwala v. Union Bank of India [1992(1) SCC 31] and Jineshwardas v. Smt. Jagrani, 2003 (4) RCR (Civil) 606, held that the words “by parties” refer not only to parties in person, but their attorney holders or duly authorized pleaders. On the basis of the aforesaid, the argument as raised by the learned counsel for the appellants to the effect that the presence of the counsel for the party cannot be termed as presence of the party before the Court is fallacious as parties include their counsel also. Learned counsel for the appellant has also relied upon a judgment of this Court in Vidya Wati v. Kashmiri Lal Jiwan Lal 1999(4) RCR (Civil) 624 to contend that in such a situation, trial Court ought to have proceeded under Order 17 Rule 2 CPC and dismiss the suit under Order 9 Rule 8 CPC and has prayed that the judgment and decrees of the Courts below be set aside. RSA No.1418 of 2010(O&M) 6 It is useful to refer to the provisions of Order 9 Rule 8 and Order 17 Rule 2 & 3 CPC which read as follows: “Order 9 Rule 8.-Procedure where defendant only appears.- Where the defendant appears and plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 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 or them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf of Order 1X 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 perform any other act necessary to the further progress of the suits, 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.]” From the provisions of Order 9 and Order 17 of the CPC, it is clear that both operate in two different situations. Order 9 of CPC deals with different situations while causing appearance of parties and consequences of non-appearance etc. In one of such situation Rule 8 of Order 9 CPC authorizes the Court to dismiss the RSA No.1418 of 2010(O&M) 7 suit when the defendant appears and the plaintiff does not appear and such a dismissal precludes the plaintiff to bring a fresh suit in respect of the same cause of action but Order 9 Rule 9 CPC provides a remedy to apply for setting aside of such a dismissal in a case where sufficient cause is shown for non-appearance, whereas Order 17 CPC regulates the adjournments in a case. Order 17 Rule 2 CPC authorizes the Court in a case where either of the party is absent to proceed in the case in one of the modes as provided under Order 9 as per the situation. Order 17 Rule 3 CPC further provides that where any party to a suit to whom time was granted fails to produce his evidence or to cause the attendance of his witness or to perform any other act necessary to the further progress of the suit, for which time was allowed the Court may if the parties are present proceed to decide the suit forthwith or if the parties or any of them is absent, proceed under Rule 2 CPC. From the language of Order 17 Rule 3 CPC, it is further clear that Court will proceed under Order 17 Rule 2 CPC only if parties or anyone of them is absent and not otherwise. If the parties are present through their counsel, the Court cannot proceed to dismiss the case of the plaintiff as provided under Order 9 Rule 8 CPC as argued because the Order 9 Rule 8 CPC is applicable only in a situation where in spite of service, the plaintiff is not represented in the suit, whereas in the present case admittedly the appellant was being represented in the suit. Thus, it cannot be argued that the trial Court could not have resorted to the provisions of Order 17 Rule 3(a) CPC. The judgment cited at the Bar has not discussed the aforesaid situation. Moreover the aforesaid judgment also lays down that it is the discretion of the Court in a given situation. Thus, the judgment cited at the Bar does not help the petitioner. RSA No.1418 of 2010(O&M) 8 No other argument has been urged. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. July 7, 2010 (RAKESH KUMAR GARG) ps JUDGE