HIGH 60URT OF CHHATTISGN^H AT BILASPUR PETITIONER Civil Revision No. 12 of 2003 Suresh Sharma, son! of D.P. Shamia, aged about 53 years, @ecu^t||%|—- Service, resident i |of Dhangarcllpa Shankamagar, Raisarh. Tahsil; Knd District Raigarh ^.G^ ^'r'sys RESPONDENTS/ ^ Jodhan Sin^ Tl^kur, son of Dev Singh Thakur,' a^<l:!:^|o^;^1@i^;' Occupation Retired Govemment Servant. . ':/ ! •• ' ' :.:,.,..- .—1.:- Smt.Mithila Kumari, wife of Mani Singh Thakur, aged about 37 years Both are residente of Dhanigardipa, Raisarh, Tahsil and District Rasgarh State of Chhattjsgarh, through Coll^tor, Raigajt}, District Raisarh ^.G.) ^ {Memo of Civil Revision UnderSection IISofttieCode c^Civll Procedyrel (SB: Hon'ble Mr. T.P. Sharma, J.) Shri H.S< Patel, counsdt for tha petitioner. Shri Ratan PushU, counseSforresponcterrts|MQ.1& 2. Shri Ajay DWivedi, Dy. Govt. A<^ocatef@riheState/responident No.3. ORALORDER (Passed on 31st March, 2009) , This is a reyision againstthe oreter datod 20-12^CX2@ passed by Second Additional Dlsfrict Judge, Raigarh in Mjse. Civil Appeal No.19/2001 reversing the orderdatect 01-08-2001 pa^ed toy Second CMI Judge, Class-1, Raigarh In Civil Suit No.21/2000 whereby the - •:'T^;':^^;;^"''^'•''•';:'^:;'^'^'i':"':^:^ -w. ,^"€ Second CMI Ji^dge, Class-1 has dismissed the sult ofthe r<^ponct©r^ No.il & 2. 2. The orde^r is chatlengesd on the ground ttiat oi'der pa»sedumter order 17 Rule P ^ of the Code of Civil Proceclure (in stiort Ittie "Code^, is an ^ippealable orcier and no appHcaUon for restoration te 1 maintainabte unider Order 9 Rule 9 of the Cod©but tti@ appeltate Court has set asidte the orcter on the ground that order vreis not appealabte and only remedy availabte to tie applicanVplaintiff was to flle an appllcation for restoration of the sult in accordance wifh the prcMsions of Order 9 Rule 9 of the Code and therel^ appeltate Court has committed an ill^galMy 1 3. Leamed counsels for the parties are heard Order tmpugned andthe orcleroftrtal Court dated 01-08-2001 perused. 4. Learned counsel for the petittoner submits that on ttie cructal date of hearing i.e. 23-11-2000 and 24-11-2000, tiienon-applicants No. 1 & 2were not present before the Court. Th®appHcsition fil<8«t by the Advocate on behalf of non-applteant No. 1 & 2 was dismissed and the Court below has decide^ ttie suit under Order 17 Rute 3 (A) of the Code whlch is appealabte. Therefore, any applieation for setttng asicte or restoration ofthesuit is not maintainable. 5. On the other hand, jearned coun®elappeartng on foehalf of ttie opposite parties submit that m absence of partjes, no option except to dismiss or proceed agaihst the parties are left to the Court in accordanee with Rule 3 Order 17 of ttie Code. Therefore, ttie order passed by e Coyrt of First instence was only to order uncler Order 17 Rule 3 (B) reacl with Rute 2 of the Code and any ap^lcation for setting aside the order pass^d ex-parte or for re®toration of suit m ^. ^ ^<i •^ dismissecJ, is mal|ntainable under Qrder 9 Ruto 9 of tti@ Code. Order XVII rpads as foll^ft®: ORDERXVII ADJOURNMENTS "1. Coi^rt may grant tiine anct adjoyrn hesartng:- {(1) The Court may,| if sufRcient csuse Is shown, at anyj$t^e of She suit, grant time ^o the parties w to any of them, arid ms^ from time to Sme a<4journ the heaitng of the sult for reasons to b@ recor^ed'fftWriting;, ... . :.,! .-.!.'... • ,:.: —....,;, Provicted that no such ad|oumtt»tt'it»s8h8rtb@ granted rnorefihanthreetimesMapartycluilhghearihglcf^su^ (2). Coste of adjoumroent- In ^wry sue^ oa^ Court shalj fix a day for the furfiier heaang of the sutt, and l^iall make such ordws as to costs o©Bas»onedby fiie jacljoumment or such higfter costs as the Court deer^fiQ^ [Providedthat- . ^), 1 whQnthehearingofthesuithascommenced, ft shatl be continued frorii^da^to day unttlalt tf»e wfriesses in attendance have been eii^mined, untess the Court finds that, for ttie exceptienat reasons to be r<»sorded by it, ttieadjoumment of the hearing beyond the folSowJng day Ss necessary, (b) noadjoummentshall begrantedatthe reqyestof a pariy, e)®eptwhere there circumstanc^ are beyond the confrol of that party, * (c) thefact thatthe pleader ofa party is engageel in &i|a<|Gtter Coyirt, ^shail nofe be a ground for jadjGumment,"'"i;^';;T'%l -: -' -: ' • •,"• ! • (d) where the Hlness of a pjeader or his Inabiiify to conduct the case for any reason, other tfian his being engag^l in anotfier Court, is putfoward as a ground for acljoummenf. the GeuNrt shaU not grant the adjournment untess % is satlsRed tfiat th@ party applying for adjoumment cou!d not have engaged another pteader in time, (©) where a witness ?s present in Court but a party or his pl^ider is not pr^ent or the parfy or his pteader, though present in Court, is net rea^y to examjne or cross-examine the witness^e C©prt may, if it thinks fit, reeorcl the statemenrt ©fthe Wflfriess and poss siwh ordiers as X ftrin^s fit j ctispensing witti the examination-in-ehtef or cross- examination of the wlness, as tihe case m<ay be, by the parfy or hjs pleader not present or not i|eacty as aforesaid.] 2. Procedure if parties ferfl to appear @n day fixed.- Where, on any day to which the hearir^ of th® suit is ^ ^•- •^ 4 4 adljoume^, the parties or ar»yof them feH tojappear, the Court may proc^edtodisposeofthesult sn on©ofth©modescSlrected in that bet|»aifby Order IX or makesuch ©therordsrasJtttiiriks m. |: ' , , / •! ••.".' i {Exjaianatjon.- Where @ evidence or 11 substanfiial por^ion of the ewclence of any party has alp&ady Nwen Fed)rtled and such party fays to appear ori;any day|to whi^h the hearing of the suit is adjoumed, the Court ma^, in its discretion, proceed witfi the case as if such party were present] \ . . ^ • •• . . • - 3. Court may proceed notwithstanding either party fails to produce evidence, etc." Where any par^ t<? asultto wfem time has been granted fails to produce hte evidenGe, w io cause the attendance of hjs ^ng^es, ^r te j^^^^a^ act necessaryto the furfher progress of flhe suit, forwhich time has been allowed, [the Court may, notwith^sincljng such ctefault,- ,|:;; '.,,'..,;,.,..,.,,;!,:;,;',:',,,,,, '.,,,:.:,,,i,,,,.:,,.'";,/ (a) | if the iMirties are preswt, proceed to decide tfie suitfbrthwjthor, (b) if the parties are, or any of ihem is, abserrt, proceed under rule 23." 6. Orcter dated 01-08-2001 reveals that on the date of passing of the order i.e. 24-11-2000, responderrts No. 1 & 2 who were plaintifis were not present beforethe Court and adjoummentwas soughtfor by the eounsel of the non-applicants No. 1 & 2 which was ctenied foy ttt@ Court of Flret Instance and the sult was dismlssed; This is notthe case in which the applicant has admttted the claim or any part ofthe ptaintiffe. Therefore, no decree was possffole in fwms of Explanation t6 Rule 2 of Rute 17 of Vhe Code and In absence of party, onty the option teft to the Courtwas to djsmiss thesu'rtfor ncm-proseeutton. 7. Remedy against the said order to th©ptainttff was availabte under Order 9 Rule 9 of ttie Cocte for seffing aside ttie order passed. PlajntSff/non-apptJcants No. 1 & 2 have availed the remedy available to them but the same was dflsmissed by the Court of First histarwe te not maintainable. After consjctering the legal aspect, the appellate Court has set aside the order passed foy Court of flret inslance and has restored the suit. 8. As learned appellate Court has not commttted any illegatity in the prder impugped, 1 do not find any iltegatity in th©order jmpugned, ttijs revision is Itebleto b©dtsmissed. No order as tocosts. Kvr Sd/- T.P.Sharma Judge ^ ^ ^' •^ l.^