1.^1 a!'!l!(k;i c^ IN.TKE HIGH.COjRlJffjaiAniSGAM.jS.^a^iS Misc.^psa.l. ^o-^£±-~of 2003 ^•:' • asui.-.y ^Egl±LANJ./• oErH'?5©n!^o^. /.^••:^'< .%%.^' ,<<^y" ^^" ^- \'(.a° ..•>~ ^•'~.^~^'" a^" RESpa'TOBn-S iisVy'i ,v\,&3 {./''Maninath SOR of Cbstanath ^ha aqed 70 years, Occupa-tion Agriculture, Brahmanpara Kasrardha , District- K awardha (C.G.). vEp.ajs ;^,1.1 Kabindranath son of Bholana-th Jha /' ^ aqed 54 years, occupation Semce S-3. Arbindranath son of Bholanath J'na aged 48 y'ears, occupation service ^-3. Devendranath son of Bholanath Jha /^ aged.45 years, occupation- Aciriculture,Residen-t of Village Chhanta Jha, Tahsil District Kavi;ardha<> ^-4. Rajendranath son of Bholahath Jha aqed 35 years, occupation-Service ^ 5. Acunam son of Ravindranath Jha /// aged 26 years,occupation-aervlce, Srl.No. 1 and 2 and 4,5 Residen-t oi Kav«ardha,Oist.rict-Ka'.vardha C.G. — Sl.aio.ti-^— 6. -State of Chhattisgarh through Co^lector Kawardha (C.G.) .— DefendentJLo^2 -^ i. c: z — K'. p;' ys T:y"'— ;:. ^llfet-Stfi^i^gj^Htates'a •^A>il •i'iT 3§mabOHa ^T?>,Io 35~m^'io~T!n''T3:TfH~^~H3ayo'1:fgaNn wadcy -<i ;l.;.iiS, i^^^ ^ w// / ^'^!ayy^y^\° mGH COURT OF CHHATTISGARH AT BILASPUR SJB: Hon'ble SEhri Prashant Kumar Mishra Misc. Appeal No. 362/2003 |3!is.afte.i(a APPELLANT RESPONDENTS Maninath Versus Kabindranath and others Appearance: Shri H.B. Agrawal, Senior Advocate with Smt. Meera Jaiswal, counsel for the appellant. Smt. Renu Kochar, counsel for respondents No.l to 5. Shri Ajay Dwivedi, Deputy Govemment Advocate for respondentNo.6. APPEAL UNDER ORDER 43 RULE Ifu) OF CODE OF CIVIL PROCEDURE ORAL ORDER (28.10.2010) This is an appeal under Order 43 Rule 1 (u) of CPC fb call in question the order of remand passed by 1fae first appellate court aflter setting aside the order passed by the trial court on 5/01/2001 dismissing thesuit when the plaintifffailed to adduce evidence. (2) The facts ofthe case in short are that the plaintiff filed suit for declaration and possession that the will executed by late Chaitnath on 15/07/1981 is not valid document and the mutation ofthe name of defendants on the suit land in pursuance to the said will is not binding on the plaintififs. (3) The suit was Gxed for recording of evidence of the plaintiffs witnesses on 23/11/2000 and on the said date, the plaintiffs witnesses <s'.''<<~ ^ -2- ^, were not present, therefore last opportunity was granted to plaintiffto adduce evidence. On the next date ofhearing i.e. on 5/01/2001, Ihe plaintiffs as well as the witnesses were absent and an application for •9 adjoumment was moved. The trial court refiised to adjoum the case and closed the plaintiffii right to lead evidence and after finding that the plaintiffs case is not proved, has dismissed the suit. Memo ofcost was prq?ared by the trial court. (4) The order for dismissal of the suit was ehallenged before the first appellate court. The appellate court has allowed the appeal and has remanded tihe matter for Sxssb frial. (5) Leamed Senior Advocate Shri H.B. Agrawal appearing on behalf of the appellant would submit that the proper course for the plaintiff was to move an application for restoration of suit under Order 9 Rule 7 of CPC and that a regular first appeal was not maintainable. He would further submit that in any case when tiie trial court found that the plaintififhas failed to adduce evidence inspite of repeated opportunities, the leamed trial court had no option, but to dismiss the suit and the &st appellate court should not have interfered with the order passed by the trial court. (6) Per contra Smt. Rej^u Kochar, counsel appearing for respondents No.l to 5 would argue that the trial court wrongly proceeded under Order 17 Rule 3 to dismiss the suit without there being any evidenee on record. She would submit that in a case like this when the plaintiff was dbsent the trial court should have QyBy ••^;^ "^J ^:^^^=:1?^- t -3 swwsssan ^"at«iaEBB»a»P' proceeded under Order 17 Rule 2 of CPC and in tum should have resorted to the procedure prescribed under Order 9 ofCPC and could not have dismissed the suit on merits under Order 17 Rule 3 ofCPC. (7) On perusal ofthe record, it would appear that the trial court has observed that since plaintiffs have failed to prove their case by adducing evidence and have also failed to produce witnesses, the suit deserves to be dismissed. (8) In the matter of B. Janakiramaiah Chetty Vs. A.K. Parthasarthi and others, AIR SC 3527 Hon'ble Supreme Court has held that when the party fails to appear the court should proceed under order 17 Rule 2 ofCPC. (9) The first appellate court has olserved that infact the burden to prove the genuineness ofthe will was on the defendanl, therefore the suit could not have been dismissed. (10) Be that as it may, since Hon'ble Supreme Court, in the matter of B. Janakiramaiah Chetty Vs. A.K. Parthasarthi and odiers (supra) has held that when the plaintiff fails to adduce evidence and enough material is not available on suit for taking a decision forthwith as mentioned under Rule 3 ofOrder 17 ofCPC, the proper course for the court is to proceed under Order 17 Rule 2 ofCPC and in tum to adopt the procedure prescribed under Order 9 ofCPC. The trial court, instead of proceeding under Rule 9 of CPC has •-•:.:;i> straightaway dismissed the suit under Order 17 Rule 3 ofCPC. The E? y- ^.'fa^wsvKWfVW ••,S^s!SSS?s°Ss:: ^^^_^^SSss":. fwi:'S!^.'sa:=at-:..'3^. SSsSB—^.'^^^ a»!--TK"E—:—r- ..-_;^,,—— 4-' ^^|j!l»iS3!El trial court has thus committed a serious error ofprocedure resulting m miscarriage ofjustice. (11) In the opinion of this court, the appetlate court has not committed any error in setting aside order passed by the trial court and remanding the suit for decision afiresh in accordance with law. (12) Consequently, this appeal fails and is hereby dismissed. Sdf- prashant Kumar judge v^