IN THE HIGH COURT OF JUDICATURE AT CHHATTISGARH FIRS^APPEAL N0. __ S'^~ OF 200fi" n „, APPELLANT: ^ [Plaintiff] <<Kishore Jain, son of Shri Devi Chand Jain, aged about 30 Years, resident of Gudiyari, Raipur. vs RESPONDENTS: A^&y ..•• <\? ft..-' Y^^- 1. Vishambhar Satnami, son ^ .) of Shri Dhukel Satnami, adult, resident of Gudhiyari, Raipur. ,-2. State of Chhattishgarh, through the Collector, Raipur. •' 3. Ashok Kundu, son of Shri ^_ Basant Kundu, Adult, resident of Narbadapara, Gudhiyari, Raipur. D.R. ^®ng?e»;^bnof Shri s^ •i^. Anant Ram Jengre, Resident of Narbadapara, Gudhiyari, Raipur. APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE,1908 ,•**>• ^ HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT FIRST APPEAL No. 57 OF 2005 Kishore Jain RESPONDENTS Versus Vishambhar Satnami and others ORDER Postfor2^T-l-2010 Sd/- N.K. Agrawal Judge FIRST APPEAL No. 57 OF 2005 Kishore Jain Vishambhar Satnami aad others ;- Hon. Shri N.K. Aganffal, J PRESENT:- Shri B.P.Sharma, Advocate, for the appeUant Shri Raja Sharaia, Advocate, for the respond< Shri G.D. Vashwam, Govt. Adv. for the resi No. 1. No. 2 and (2<T-1-2010) 1. The tnstant appeal is directed agatnst fhe order dated 4-1- 2005 passed by fhe IIIrd Additional District Judge, Raipur in Civil Suit No. 3-A/2003 whereby and whereuader, fhe suit preferred by the appeUant/plaintifi' has been dismissed under Order 17 Rule 2 ofC.P.C. 2. Facts of the case, in brief, are fhat according to plaintiff (appeUant herein) on 18-11-2004, fhe witaesses of the plaintiff were present before the trial Court but they could not be examined since on the previous date, fhe Presidin^ Officer was on leave aiid matter was fixed for proper orders. The matter was then adjoumed for 4-1-2005 for recordmg of plaintiff's evidence. On that day, fhe plaintiff and Ms witnesses were absent; the plaiat3ff's counsel sought time upto 2.30 p.m. to produce witnesses; meanwhile, the application under Order 14 Rule 5 of ;.P.C. has been filed by one of the defendants, the same ^. has been dismissed by the Court despite no objection of plaintiffs counsel and fhe matter was fixed at 2.30 p.m., as prayed by plaintiff's counsel. The matter agajn came up for hearing on the same day at 2.30 p.m. Smce the plaintiff and his vritnesses were absent, the plaintiff'8 counsel by 1"'. ^. •<<3, JJ y filing an application under Order 17 Rule 1 of C.P.C. sought aa adjoumment to lead evidence, but the same was dismissed and stnce fhe plaintiff and his ndtnesses were absent on that day, fhe trial Court dismissed the sult under Order 17 Rule 2 of C.P.C., against which the iastant appeal has been preferred by £heplaintiff. 3. Shri Raja Sharma, leamed counsel appearing for the respondent No. 1 has raised a preluniaary objection regarding inaintainabillty of this appeal. According to him, on 4-1-2005, fhe case was adjoumed for plaintyfs evidence, neifher titie plaiiittff nor his wltnesses were present on fhat date and, fherefore, learned trial CoLirt has dismissed fhe suit under Order 17 Rule 2 ofC.P.C. aiid fhe said order is not appellable. Against' fhat, only remedy available to the plaintiff was to file application for restoration of flie suit under Order 9 Rule 9 of C.P.C. For fhis, reliaace has been placed upon para 23 of (he judgment of M.P. High Court in case of Rama Rao and others -v- Shantibai and others reported in AIR 1977 MP 222. "23. As a resiilt of these conclusions, our answers togefher wifh fhe questipns referred to us, are stated as under- Questions Answers (1) If, when a suit is called on for hearing, a party's counsel appears and seeks adjoununent but when adjoumment is refused he retires saying that he has no instructions whefher fhis wUl amount to "appearance" of fhe party whoin fhe counsel represents. (aj If the coiinsel had sought adjoumment because he was instructed by his client to ask for an adjourrunent only, and not to proceed with fhe tnal tf adjourmnent be refused? (b) If fhe counsel feels a necessily to seek adjournment so fhat he may prepare himself and, on his own, seeks adjpurmnent. It wUl be no appearance of | the party and R. 2 of O. 17 C.P.C. alone i would be attracted. However, tn such a case the defaulting party | must show 'suffident cause' for non- appearance as weU as for not fiilly uistructm.g the counsel. It wiU be rio appearance of] tlie party and R. 2 of O. 17 C.P.C. alone would be | attracted. ] (2) If when a case is called on for | It wlU be no hearing, fhe counsel appears (wifhout | appearance of the party and R. 2 of O. 17 making any request for adjomnment) merely to iriform the Coiirt fhat he has no instructions and, therefore, would not appear, wiU it still amount to appearance of a counsel for fhe purposes of 0.9 R.8 or O. 17 R. 2 CPC ? C.P.C. would attracted. alone be G6 (3) Whether an application under O. 9 C.P.C. wiU lie for settmg aside the 1 dismissal of a siiit in the foUowing circumstances: - (a) The plaintiff had not been asked to [ Yes. Order 17 I do soniething aad he dld not appear 2 C.P.C. when tfae case was called on for hearii^ | would alone be attra.cted. j (b) The plaintiff was asked to do 1 something which he did not do, nor did he appear when the case was called on Yes. Order 17 Rule 2, C.P.C.j would alone be for hearing. (4) Whetfaer, in the fonowmg situations, the defendant can apply under O. 9 R. 13 C.P.C. for setting aside an ex parte decree:- (a) When the defendant had not been asked to do soinethuig and he did not appear and the Court decided the suit on fhe basis of the existmg material without or after taldng any fz.irther evidence on record. Yes. Order 17 R. 2 C.P.C. would alone be attracted. (b) When the defendant had been asked to do somefhing which he did not do, nor appeared when the case was called on for hearmg and the Court decided the suit on fhe existing aiaterial without taking any furfher evidence for fhe plaintiff. (c) When he had been asked to do somefhing which he did not do and did not appear when fhe case was called on for heai'mg and therefore, on the same Yes. Order 17 Rule 2 C.P.C. would alone be attracted. Yes. Order 17! .Rule 2 C.P.C.I 1 would alone be I attracted. ^ ,^€fe ry'i.i:'v":S9f: "••'^ "•^^^.ft day, the Court took on record ex parte evidence produced by the plaiiitiff. (d) When he had been asked to do I Yes. Order 17 somefhiag which he did not do nor Rule 2 C.P.C. ] appeared when the case was caUed on | woiild alone be I for hearing and the trial Court [ attracted. adjoiimed fhe hearing for recording plaintiff's evidence ex parte and on fhe next date, after recording plamtiff's ex parte evidence, passed an ex parte 1 decree aaainst him. 4. Per contra, Sliri B.P. Sharma, leained counsel appearin^ for fhe appeUaat/plaintiff would subm.it fhat as per dictionary meaning, word "Day" means any 24 hours period, and word "Adjournment day" means fhe day on which an organization, such as a Court or le^slatui-e, adjoums. In the present case, it cannot be said fhat on 4- 1-2005, the plaintifi'was not present, at the best, it can be said that in the first half of the day, fhe plamttff was not present and adjoumment has been sought for production of witnesses m fhe latter half of the day after 2.30 p.m. Thereafter since an application has been filed by the respondents No. 3 and 4 under Order 14 Rule 5 of C.P.C. which was rejected by the trial Court, as the plaintilFs comisel on plaintiGPs instinction participated in flie proceedings not only for seeking adjournment but had argued fhe matter on an application preferred by fhe -" defendant on plaiiitiiTs behalf which under Order 3 of C.P.C. would be deemed as appearance of the plaintiff and fhus the impugned dismissal of tlie suit is under Order 17 Rule 3 being ia presence of plaintiff and not under Order 17 Rule 2 of C.P.C. and, therefore, the appeal preferred the appeUant is m.aintainable and fhe ratio laid down . .^^r'KWAfe..,.. /i^'s°. M.P. all Coiirt in the case of Rama Rao (supra) is not at tn the present case. 5. I have heard learned counsel for the parties and perused the order impugned and the order sheet of fhe trial Court. 6. Thc scope and ambit offhe Order 17 Rule 2 and 3 falls for determination in tfais appeal. Order 17 Rules 2 and 3 of C.P.C. read fhus:- *2. Procedwe if parties fedl to appear on flxed.- Where, on any day to wfuch the hearin.g of the sv.it is adjoumed, the parties. or any of them fail to dppear, the Court may proceed to dispose of the suit in one of the nwdes directed in that bekalf by Order K or make such other order as it thinksftt. BxplcineiMon-Where the evvietice 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 hecfring of the suit is adjoumed, the Court may, in its discretion, proceed ivith the ca$e as ifsuch party werepresent. 3. Court rn.ag proceed notwithstctnding either party fails to prodvxe eifidence, etc. - Where any party to a suit to whom time has beeii granted falls to produce his evidence, or to cause the attendance ofhis witsiesses, or toperform any other act necessary to the further progress ofthe suit, for which time has been allowed, the Court may, notwithstanding such defcadt,- (a) if the parties are present, proceed to forfhwith, or decide the suit (b) iftheparties are, or any ofthemis, absent, proceed under rule 2. 7. Order 17 Rule 2 of C.P.C. pennits fhe Court to adopt any mode provided in Order 9 or to make such order as he fhinks fit when on any day to which the hearuig of fhe suit is adjounied, fhe parties or any of them fall to appear. The explanation is in fhe nature of an exception to the general power given under the rule, confemng discretion on fhe Court to act under fhe spectfied ctrcumstance i.e. where evidence or a substanttal portion of fhe evidence of any party has ah'eady been recorded and such party fails to appear on any day to which the heartng of fhe suit is adjoumed. If such is the factual situation, the Court may, in its discretion deeui fhat such party was present. Under 9 of Rule 8 of C.P.C.. tf defendant appears and fhe plaintijf does not appear, when fhe siiit is called on for hearing, the Court shall niake an order fhat the suit be dismissed unless the defendant admits the claim or part thereof, in which case, fhe Coiirt shaU pass a deci'ee against fhe defendant upon such admission and, where only part of fhe claim has been admitted, shall dismiss fhe siiit so far as it relates to the rematnder. In Rule 2, expression used is "make such order as it fhinks fit", as an altemative to adoptuig one of fhe raodes directed m that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to fhe Court is to proceed under Rule 2, when a party is absent. H" Order 17 Rule 3(b) is read wifh explanation to Order 17 Rule 2, it would be clear that the explanation gives discretion to fhe Coiut to proceed with fhe case under rule 3, even if a party is absent. But such a course can be adopted only when tfae absentee party has ah-eady led evidence or a substantial part fhereof. If fhe position is 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. Rule 2 appfies when an adjouminent has been generaUy granted and not for any special purpose. On the ofher hand, Rule 3 operates where the adjoiimment has been given for one of the purposes inentioned in the -iti' ff rule. While Riile 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit fortfawifh. The basic distinction between the two rules, however, is that in fhe former, any party has failed to appear at the hearing, while in the latter, the part5.T though present has committed any one or more of fhe enumerated defaults. The combined effect of the explanation to Rule 2 and Riile 3 is fhat a discretion has been conferred on the Court. The explanation to Rule 2 is in the nature of a deeniing provision when iinder given circumstances, the absentee party is deemed to be present. It obviously means fhat the evidence on record is sufi&cient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemjed to be present for this obvious purpose. The Court while acttng under tfae explanation, inay proceed with the case if that pruna facie is the position. Therefore, a conjoint reading of expression "make such order as it thinks fit", and fhe explanation to Rule 2 would mean the Court may proceed to dispose of fhe suit tf evidence on record is sufficient to substantiate the absentee party' stand and for disposal of the suit, otherwise fhe Court has to dismissed the suit under Order 9ofC.P.C. 8. The word "day" occumng in Rule 2 would niean fhe day to which fhe hearing of fhe suit is adjoumed. In the present case, indisputabty the platntiff and his witnesses were absent. The platntiff was represented by his coi-insel, sought adjoumment, which was refused, evidence of parties was yet to be begun and, fherefore fhe deemmg " provision under fhe explanation is not available. Order 17 Rule 2 of C.P.C. permits the Coiut to dismiss fhe suit under Order 9 of C.P.C. when on any day to which fhe hearing of fhe suit is adjoumed, the party or any of them fail to appear. Under Order 17 Rule 3 of C.P.C., tf a party and hls witnesses are absent on the day when fhe suit is ^ . ^' ..:.^»., adjoumed for recording evidence, then also, fhe Court has to proceed under Order 17 Rule 2 ot' C.P.C. 9. Order 3 of C.P.C. authorizes aa advocate to plead on behalf of a party. Certainly, he cannot adduce evidence on behaif of a party and, fherefore, for the piirpose of Order 17 Rule 3, appearance of counsel carmot be said to be appearance of a party and, fherefore, it cannot be said that since the Advocate had appeared and also argued on one application apart froin seeking adjoumment, then his presence would be fhe presence of the party and, fherefore, the suit has not been dismissed under Order .17 Rule 2 of C.P.C. but has been dismissed under Order 17 Rule 3(aj of C.P.C. amounting to decree and fhus appeUable. 10. Almost identical facts feU for consideration of the Suprenie Court m. case of Mohandas and others -v- Ghisia Bai and others reported in AIR 2002 SC 2436 in which on the date when fhe case was fixed for evidence, the counsel for plaintiff/appellant moved an application for a short adjournment which was rejected, then again, counsel for the plaintifi" moved aa application under Order 17 Rule 1 of C.P.C. on ffae ground fhat the plainttff is seriously ffl and, therefore, fhe case niay be adjoumed, the said application was also rejected, fhereafter fhe trial Court dismissed fhe suit under Order 17 Rule 3 ofC.P.C., thereagainst, an appeal was preferred, and the case was remanded back by fhe Supreme Court holding that the order passed was not under Order 17 Rule 3 but was under Order 17 Rule 2 of C.P.C. The Supreme Court in para 3 of its judgment has observed as under:- "In the present case what we find is neither the plaintiff-appellant nor his wttnesses were present on 7fh May, 3994. Therefore, the case has to be dismissed under Order XVR, Rule 2. Even Rule 3 itself provides that if the parties or any of them s lh .l-1. 10 &.£ ®fe .4^ absent, the Court shcdl proceed to dedde the suit under Order XVH, Rule 2. In view of the said legal positton, we are of the view that the view taken by the Court below was erroneaus and deserves to be set aside. We, therefore, set aside the judgment under appecd and sent the case back to the tricd Court to decide the matter in accordance with law. In the light of the dictum of fhe Supreme Court in the above referred case and in the light of fhe judgment of High Court of M.P. in Rama Rao's case (supra) to which I am. tn respectful agreement and in view of the fact that fhe plaintiff and his coiinsel were absent as aforesaid, I have no hesitation to hold fhat leamed tnal Court has dismissed the suif iinder Order 17 Riile 2 of C.P.C. and not under Order 17 Rule 3(a) of C.P.C. and fherefore, the order is not appeHable. 11. In view of fhe above, in fhe considered opinion of fhis Court, the appeal not being maintainable is liable to be and is hereby dismissed. However, it is made clear fhat fhe plainttff/appellant is at Uberty to seek his remedy under (he provisions contained in Order 9 of C.P.C. tf so advised and if such an application is filed, the trial Court shaU consider the question of limitation in accordance with law in the light of fhe fact fhat the appeUant/plaintiff was pursuing the instant appeal instead of flling said application. Sd/- "' N.K. Agrawai Judge