.•s/i -s^° rs ® fsv-i i W^ £TOF CH :T|!:i»N •^31k IS5C. tPPEALNO.IIIOOFZOO! rclalmant] Salgar, S/o Sudha, Aged about 32 R/b Panchwati, P.S. Ramanujnagar, Surajpur, District Surguja (C.G.) Versus rs, h.- Non-aooiicants 1. Surendra Kumar Prajapats, S/o Ramsewak Prajapati, Aged about 30 years, R/o Devnayee, P.S. Ramanujganj, Distt. Surguja (C.G.) 2. M/s Ambika Transport, Through Ajay Agrawal, S/o Basantia! Agrav/al, R/o Basant Lal Marg, Ambikapur, Distt. Surguja (C.G.) 3. The Oriental insurance Company Limited, Through Branch Manager, Branch Office, Sadar Road, Near State Bank of india, Ambikapur, Disft. Surguja (C.G.) s'3'S SS "I f+i ^ ^.'iilj ^f.^.^. !ec.173oftheM.V.Act (Sjnflte Bench: Hon'bte Mr. N.K. Aaarwal. J.i Iggenj :Shri Atanu Ghosh, counsei for the appeliant. None for respondents No. 2 & 3 though sen/ed. (Passed on 3Sth day of March,2010) Instant appeai is directed against the order dated 30-08- 2005 psssed by II Additiorsai Motor Accidsnt Clalms Tribunal, Surajpur, Distt. Surguja in Claim Case No. 09/2002 whereby snd whereunder the apptication preferred by the appeitant under Order 9 Rule 9 of C.P.C. has been dismissed holdina it as not 2. Facts-6f the case in brief are that the appetiant, preferred a c!aim appiieation against the respondents ciaiming Rs. 5 lacs as compensation for the Injuries sustained by him. T'he case was fixed for appeliant's evidence on 14-12-2001 by the Tribunal. On that date, the claimant as weli as his witn-gsses were absent and ftis counsel pieaded no instruction. Learned Tribuna! dismissed y '^ the claim case due to absence of claimants as well as his wjtnesses. There-against, the appiication una'er Order 9 Ruie 9 of C.P.C. has been preferred by the appeliants for restcration of claim case No. 194/2001. Vide impugned order the said appticatiQn has been dismissed by fhe Tribunal holding that iearned Tribunal has passed the order under Order 17 Rule 3 of C.P.C. against which the restoration application is not maintainabie. 3. Leamed counse! for the appellant wouid submit that iearned Tribunai has fixed the case on 14-12-2001 for recordins evidence of the parties. On that date, neither the ciaimant nor his witnesses were present nor the witnesses or non-appiicants were present. Therefore, learned Tribunai has dismissed the claim petition under Order 17 Rule 2 of C.P.C. and the said order js not appellabie. Against that, only remedy availabie to the claimant was to flle application for restoration of the ciaim cass under Order 9 Ruie 9 of C.P.C. and the same has been filed by the appeliant which is maintainable and the Tribunal has erred in dismjssing the application on the ground of non-maintainability of the appiication. appellant }Q Tribunai. 4. i have heard iearned counsei for perused the order impugned and the record of th The scope and ambit of the Order 17 Rule 2 and 3 falls for determination in this appeal. Order 17 Rules 2 and 3 of C.P.C. read thus:- "2. Procedure if parties fail to appear on day '&red.- Where-^on any day to -which the hearing of the sult ss adjQumed, the pames or any of them fsil to appear, 'the Court may proceed to dispose of the suit in one of the modes airected in that behaif by Ofder !X or mske such othsr ordsr ss !t thinks fS. fplanason-wnere tne eviasnce or a substanSal'portion ofthe evidence ofsny party has already baen recoraed and sucfi party fails to •ippear on any day to which the hearing of the sult is •Ct adjoumed, the Court may, in its discretian, proceed with fhe cass ss ifsuch psrty wsre present. psrty fails tp produc®evsdence, ete. - Where any party to a suit to whom time has been granted fails to produce his evjdence,or to cause the attendance or his v/itnesses, or to perform any other act ffecesss/y fo the further progress of the suit, fQr vMch tims has been aliowed, the Court may, notwsthstanding such default,- if the parties are present, proceed to decicfe lit forthwith, or if the parties are, or any of them Is, absent, proceed under rulc 2. 6. Order 17 Rute 2 of C.P.C. permits the Court to adopt any mode provlded in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, 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 ruie, confemng discretion on the Court to act under the specified circumstance i.e. where 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 whteh the hearing of the sust is adjourned. If such Is the factus! situation, the Court may, in its discretion deem thaf such party was present. Under 9 of Rufe 8 of C.P.C. if defendant appears and the plaintiff does not appear, when the suit is cailed on for heanng, the Court shall make an order that the suit be dismfssed unless the defenda.nt admits the claim or part thereof, in which case, the Court shali pass a decree against the defendant upon such admission and, where oniy-part of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. In Rule 2, expression used is "make such order as It thinks fit", as an alternative to adopting one of the modes directed in that behajf by Order 9. Under Order 17 Ruie 3(b), the oniy course open to the Court is to proceed under Ruie 2, when a party is absent. !f Ordsr 17 Rule 3(b) is read with explanation to Order 17 Rute 2, it would be clear that the explanation gives discretion to the Court to proceed with the case under ruie 3, even if a party is absent. But such a course can be adopted only when the absentee party has aiready led evldence or a subsfantial part thereof. If the position is not so, the Court has no option but to proceed as provided under Ruie 2. Rules 2 and 3 operate in different and distinct sets of ciroumstances. Rule 2 appiies when an adjournment has besn generally granted and not for any special purpose. On the other hand, Rute 3 operates where the adjournment has been given for one of the purposes mentioned in the ruie. Whiie Rute 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit forthwith. The basic distinction between the two ruies, however, is that in the former, any party has failed to appear at the hearing, while in the latter, the party though present has committed any one or more of the enumerated defaults. The combined effect of the expianation to Ru!e 2 and Rule 3 is that a discretion has been conferred on the Court. The explanation to Ru!e 2 is in the nature of a deeming provision when under given circumstances, the absentee party is deemed to be present. it obviousiy means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of fhe suit. The absentee party is deemed to be present for this obvious purpose. The Court while acting under the explanation, may proceed with the case if that prima facie is the position. Therefore, a conjoint reading of expression "make such order as jt thinks fit", and the expianation to Rule 2 wouid mean the Court may proceed to dispose of the suit if evidence on record is sufTicient to substantiate the absentee party' stand and for disposal of the suit, otherwise the Court has to dismissed the suitunderOrderSofC.P.C. , • 7. Almost identical facts feil for consideration of the Supreme Court in case of Mohandas and ofhers -v- Ghisia Bai anct others reported in AIR 2002 SC 2436 in which on the date when the case was fixed for evidence, the counsel for I?, ••fitsms plaintiff/appellant moved an application for a short adjournment which was rejected, then again, counse! for the plaintiff moved an appiication under Order 17 Rule 1 of C.P.C. on the ground that the piaintiff is seriously ill and, therefore, the case may be adjourned, the said application was also rejected, thereafter the triai Court dismissed the suit under Order 17 Rute 3 of C.P.C., there-against, an appeal was preferred, and the case was remanded back by the Supreme Court holding that the order passed was not under Order 17 Ru!e 3 but was under Order 17 Ruie 2 of C.P.C. The Suprem'e Court in para 3 of its judgment has observed as under:- "//? the present case what we find 'is neither the plaintiff-appellant nor his witnasses were present on 7t May, 1994. Therefore, the case hasto be dismissed under OrderXVII, Ru!e 2. Even Rule 3 itself p-ovides that if the parties or any of them absent, the Court shaSI proceed to cfecide the suit under Order XVII, Rule 2. In view of the said legal position, we are of the view that the vsew taken by the Court below wss erroneous and deserves to be set aside. We, therefore, set aside the judgment under appea/ and sent the case back to the trial Court fo decide the matterin accordance w'sth law. 8. In view of She fact that the claimants and their witnesses were absent on the date of hearing, 1 have no hesitation to hold fhat iearned Tribunai has erred in dismissing the application preferred by the appeliant under Order 9 Rule 9 pf C.P.C. inasmuch as the said dismissal was under Order 17 Rute 2 of C.P.C. and not under Order 17 Ruie 3(a) of C.P.C. In view of the aforesaid discussion, in the considered opinion of this Court, the appeal deserves to be allowed and is hereby sllowed. The application preferred by the appellant under Order 9 Rule 9 of C.P.C. is held to' be maintainable. The impugned order passed by the Court below is set aside and the matter is remitted back to the Tribunal to decide the application under Order 9 Rule 9 of C.P.C. afresh on its own merit in accordance with law. K-ir 10. Since the matter is very old, it is directed to decide the said application as early as possibie preferably within a period of 3 months from the date of receipt of a copy of this order. 11. The observations, if any, made hereinabove, shall not be construed as my opinion on merit. 12. The record of the Court below, be sent back forthwith. ^ Sd/- N.K. Agrawal Judse