HIGH COURT OF CHHATTIS6ARH AT BILASPUR MANo. 306 of 2003 Appellant Claimant '^^: Respondents Non-claimants .-^ : Sunil Kumar S/o Ganesh Ram Satnami, aged about 23 years, resident of near Paki|a Tert House, Madauda Tank, Bhilaj, Tah. & Distt. Durg (CG). Versus 1. Smt. Anusuiya Thakur W/o Shri Rajaram Thakur. aged about 40 years, resident of 291 E, Risali Sector, Bhitai, Tah. & Distt. Durg (CG). 2. The New India tnsuraiice Company Ltd. Kachahari Chowk, Raipur , Tah. & Distt Raipur (CG). APPEAL UNDER SECTION 173 (2V OF THE MOTOR VEHICLES ACT (SB: Hon'bleMr.N.K.Aaarwal.J.l .2. Present : Shri DN Prajapsrtj, Advocate for appellant. None for the respondent No. 1 . Shri ShaUendra Sharma, Advocate for respondenft ORALORDER (Passed on 22"<lday of April, 2010) 1. The instant appeal is directed against the order dated 15.02.2003 passed by llnd Addttional Motor Accident Clahns Trilainal, Durg in claim case No. 28/97 whereby and whereunder the appellart's appltoation has been dismissed for want of proof under Order 17 Rute3ofC.P.C. 2. Brief facte of fhe case are as under:- 3. The appellant preferred a daim application agaidst the respondents claiming Rs. 3,77,500/- as cx)mpensation for the injuries sustained by him. The Tribunal framed various issu^. r Thereafter the case was fixed for applteant's evidence but neither applteant nor his wftnesses were present before the Court. Learned trial Court after recording a finding that despite havlng given several opportunities to adduce evidence, the applicant failed to adduce any evidence dismissed the petftton under Order 17 Rute 3 of C.P.C. for want of evidence. <t>- 4. Shri DN Prajapati, tearned counsel forthe appellantvwutel submtt that indisputably on the date fixed for evidence neither applicant nor his witnesses were present before e Covrt. It Is als@ not In dispute that till then evidCTce was y^ to begin and Wierefore, in such cases, learned trial Court has erred in dismissing the claire petition under Order 17 Rule 3 of C.P.C. As per him, the petition ought to have been dismissed by the (rial Court under Order 17 Rute 2 of C.P.C. r\- r 5. On the other hand, Shri Shailendra Sharma, l^imed counsel appearing for the respondent No. 2 supported the order and contended that the appellant was grossly negligent tn prosecuting his ease. Despite several opportunities, he did not adduce any evidence and as such the trial Court has r^htly diantesed the petitionunder Order 17 Rule 3 of C.P.C. 6. I have heard learned counsel for the parties and perused the order impugned and record of the Court below. 7. The scope and ambit of the Order 17 Rule 2 and 3 falte for determination in this appeal. Order 17 Rules 2 and 3 @f C.P.C. read thus:- "2. ProcwSwe ff parties fatt to appear on day ffireefc- Where, on any day to which the hearing of fffe suit is adjoumed, the parties or any (^ them fall to appear, the Court may proceed to cSspose of the suit h one of the %^ r. ® mocfes directed in that befialf by Order IX or make such other order as it thinks 1 . Explanation-Where the evfdence or a substanttal porGon of the evidence of any party has already been recorded and such party fails to appear on any day to which thehearfng of the suit Is adjoumed, the Court may, m its dlscrBtton, proceed with the case as ifsuch partywere present 3. Court may proceed notwmistandlfig elttier party fe/fe to proctoce evhlence, etc. - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance ofhis 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) (f the parties are present, pfoceed to decide the suit forthwith, or (b) ifthe partfes are, or any of tttem fe, absent, proceed underrufe2. 8. Order 17 Rule 2 of C.P.C. permits ttie Court to adopt any mode provtded in Order 9 or to make suchorcter as he thlnks flt when on any day to which the hearing of the suit is adjoumed, the parties or any of them fail to appear. The explanation is in the nature of an exception to the general power given under the rule, confemng disoretion on the Court to act under the spectfied circumstance i.e. where evidence or a substantial portion of the evidenee of any party has already been recorded and such party faite to appear on any day to which the hearing of the sutt is adjoumed. If suGh is the factual situation, the Court may, in its discretion deem that such party was present. Under Order 9 Rule 8 of C.P.C. if defendant appears and the plaintiff does not appear, when the suit is called on for hearing, the Court shall make an order that the suit be dismissed untess the defendant admits the claim or part thereof, in whteh case, the Court shall pass a decree against the defendant upon such admisston and, where only part of the claim has been admitted, shall dismiss the sutt so far as it relates to the remainder. In Rule 2, expression used is "make such order as it thinks fit", as an altemative to adoptlng one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to ie Court is to proceed under Rule 2, when a party is absent. If Order 17 Rute 3(b) is read wtth explanation to Order 17 Rule 2, (t would be clear that the exptanation gives discretion to the Court to proceed with the case under rule 3, even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position ts not so, the Court has no option but to proceed as provided under Rule 2. Rules 2 and 3 operate In different and distinct sets of circumstances. Rute 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjoumment has been given for one of the purposes mentioned in the rule. While Rute2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit forthwith. The basfo distinction between the two rules, however, is that in the former, any party has failed to appear at the heartng, while in the latter,the party though present has committed any one or more ofthe enumerated defaufts. The explanation to Rule2 is in the nature of a deeming provision when under given drcumstances, the absentee party is cteemed to be preseiit.It obviously means that the evidence on record is suffteient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvtous purpose. The Court while acting under the explanation, may proceed wtth the case if that prima facie is the position. Therefore, a conjoint reading of expression "make such order as it thinks fit", and the explanation to Rute 2 would mean the Court may proceed to dispose of the suit if evidence on record "-Y r\; r @ is sufficient to substantiate the absentee party' stsaid and for disposal of the sutt, otherwise the Court has to dismissed the suit under Order 9 of C.P.C. 9. Indisputably, in the present case, the |rtaintlff and his wttnes^s were absent. The plaintiff was represented by his cwnsel, sought adjoumment, whtoh wasrefused, evklence of parties was yet to begin and, therefore the deeming provision under the exptanation is not available. Order 17 Rute 2 of C.P.C. penntts the Court to dismiss the suit under Order9 of C.P.C., when on any day to which the hearing ofthe suit is adjoumed, ftie party or any of them failed to appear. Under Order 17 Rule 3 of G.P.C. where any party and his witnesses are absent on the day when the suit Is adjoumed f@r recording evidence. then ateo the Court has to proceed under Order17Rute2ofC.P.C. 10.0rder 3 of C.P.C.authorizes an advoGate to plead on behalf of a party. Certainly, he cannot adduce evidence on behalf @f a party and, therefore, for the purpose of Order 17 Rute 3, appearance of counsel cannot be said to be appearance of a party and, therefope, it cannot be said that sinee the Advocate had appeared for seeking adjoumment, then his presence would be the presenoe ofthe party and, therefore, the sutt has not been dlsmtesed under Order 17 Rule 2of C.P.C. but has been dismissed under Order 17 Rule 3(a) of C.P.C. amounting to decree. 11 .Almost identieat facts fell for consideration of the Supreme C@urt In case of Mohandas ahd others ~v- Ghisia Bai and others1 jn which on the date when the case was fixed for evidence, the counsel for plaintjff/appellant moved an applicatiort Jor a short adjournment which was rejected, then again, <^)unsel for the plaintiff moved an application under Order 17 Rule 1 of C.P.C. on the ground that the plaintiff is seriously i and, therefwe, the case may be adjoumed, the said appUcatton was ateo rejected, thereafter the trial Gourt dismissed the sutt under Order 17 Rute 3 of C.P.C., there-against, an appeal was preferred, and the ^is® 'AIR 2002 SC 2436 /s^r'^\ i 1 J:%.1 ^••'. ^ @ was remanded back by the Supreme Court holding that t@ order passed was not under Order 17 Rule 3 but was unda- Orcter 17 Rule 2 of C.P.C. The Supreme Gourt In para 3 of ite juc^ment has observed as under- ttln the present case what we find is neSther the plamW- appellant nor his witnesses were pfesent on 7th Mffy, 1994. Therefbre, the case has to b9 dismissed undor OrderXVfl, Rule 2. Even Rule 3 ttseff provides that ff the parties or any of them absent, the C@urt shall proceed to dedde the suit under OreferXW/, Rute 2. In wew of the safd legal posMon, we are of the vfew that the wew taken by the Court below was e/roraeoffs and deserves to be set aside. We, therefore, set s^ide the judgment under appeal and sent the case bad< to th9 irial Courtto decfde the matterin accordance wlthfaw." r\ 12.1n the light of the dictum of Supreme Court <n the above referred case and in view of the fact that the appellant and his witnesses \. r - were absent as aforesaid, I have no hes'rtation to hold ttiat the Tribunal has erred in dismissing the claim petition under Order 17 Rule 3 of C.P.C. The case has to be dismlssed under Order 17 Rute 2 of C.P.C. Even Rule 3 provides that if parties are, or any <rf them is, absent,the Court shall proceed to decide the suit under Order17Rule2ofC.P.C. 13. For the foregoing, the Tribunat's order being erroneous deserves to be and is hereby set aslde. The case is remitted bad< to the trial Court to decide tt in accordance with law. 14;The appeal is allowed. There shafl be no order as to costs. IS.Record ofthe trial Court be sent back forthwith. Sahu Sd/- N. K. Agarwal Judge