APPEAL FROM ORIGINAL DECREE NO. 994 OF 1977 ********** ================================================== Against the Judgment and Decree dated 19.9.1977 passed by the 3rd Additional Sub-Judge, Purnea, in Money Suit No. 17 of 1976 / 15 of 1977. ================================================== *********** State Bank of India, a Bank constituted under the State Bank of India Act, 1955 having its Central Head Office at Bombay and Local Head Office at Patna and Branches all over India including one at Forbesganj…. .......... Plaintiff…Appellant Versus 1. Tapnarain Singh son of late Deonath Singh, resident of Chuwapatti Chouk, within Forbesganj Municipality, P.S. Forbesganj, District- Purnea, 2. Shankar Lal Chokhani Proprietor, Shankar Stores, Sadar Road, Forbesganj… ....Defendants… Respondents **************** For the Appellant : Mr. Kauslendra Kr. Sinha, Mr. Sunil Kumar Singh, Advocates For the Respondents : None PRESENT THE HON‟BLE MR. JUSTICE DR. RAVI RANJAN Dr. Ravi Ranjan, J. The plaintiff-appellant has preferred the present appeal against the judgment and decree dated 19.9.1977 passed by the 3rd Additional Sub-Judge, Purnea in Money Suit No. 17 of 1976 / 15 of 1977. 2. The plaintiff has filed the suit for a decree of Rs.13062.05/- against the defendants and also for interest on that amount till its realization. A relief for 2 attachment of hypothecated property has also been sought. 3. Plaintiff‟s case in brief is that the father of defendant no.1 was carrying on the business of plying taxi on permit till his death and defendant no.2 is the sole proprietor of his firm carrying out business in the name and style of „Shankar Stores‟ in Forbesganj Town. Further case of the plaintiff is that father of defendant no.1 had applied for a loan advance to the plaintiff which had sanctioned an advance limit of Rs.16394.35/- in instalment credit loan to the father of defendant no.1 on the security of hypothecation of the taxi of the father of defendant no.1. The father of defendant no.1 had executed the agreement and defendant no.2 had guaranteed the repayment. On 28.11.1970, the father of defendant no.1 withdrew the aforesaid amount of Rs.16394.35/-. He paid Rs.4095/- upto 11.1.1972 as instalment at the rate of Rs.455/- and thereafter failed to pay the agreed instalments. In the meantime, he died leaving behind his son, the defendant no.1, as his only heir. On demand by the plaintiff, the amount was not returned back by the defendants. Plaintiff‟s case is that 3 the liability of the guarantor (defendant no.2) is of equal footing and co-extensive with that of defendant no.1, who is also liable to pay the entire claim. 4. Defendant no. 1 did not appear in the suit despite service of notice. However, defendant no.2, the guarantor, had appeared and filed written statement taking a stand that after the death of the original loanee, leaving behind defendant no.1 as the sole heir, he is no way liable for payment of the claim of the plaintiff. 5. Upon pleading of the parties, following issues were framed by the trial court. (i) Whether the Suit as framed maintainable? (ii) Whether the plaintiff has cause of action or right to sue? (iii) Whether the plaintiff is entitled to a decree as claimed for? (iv) To what other relief or reliefs if any the plaintiff is entitled? 6. The trial court has dismissed the suit on the ground that plaintiff has failed to file any document or examine any material witness in support of his case as P.Ws. 1, 2, 3 and 4 were formal witnesses and have 4 not said even a word on merit of the case. The relevant finding of the trial court is quoted as under : “8. The plaintiff has neither filed and proved any document nor has examined any witnesses to support his case. P.W. 1,2,3 and 4 are formal witnesses and have not said even a word on merit of the case. Thus plaintiff has totally failed to prove his case. Hence all the above issues are decided against the plaintiff.” 7. I have heard the appellant. No one had appeared on behalf of the respondents at the time of hearing of the case. 8. The sole question raised by the appellant in this appeal is as to whether in view of the fact that only formal witnesses have been examined as no material witnesses could be examined by the plaintiff and on the date fixed further witnesses could not be produced for examination, whether the trial court should have proceeded to decide the suit under Order XVII Rule 3 of the Code of Civil Procedure (hereinafter refereed to as the “Code”) or it should have proceeded under Order XVII Rule 2 of the Code. 9. Learned counsel for the plaintiff – appellant submitted that it is apparent from the record 5 that when the case was called out on 19.09.1977, an application was pressed by learned counsel for the plaintiff for adjournment. However, the same was rejected and the plaintiff was directed to proceed further for hearing of the case. The plaintiff could not do that. Thus, the plaintiff‟s case was closed and defendant was directed to produce evidence. Learned counsel for the defendants submitted that there was no need of producing any evidence on their part. Then both the parties were directed to make their final submissions. However, learned counsel for the plaintiff could not place his arguments. Thereafter, the suit was dismissed under Order XVII Rule 3 of the Code after recording finding that no substantial evidence could be produced by the plaintiff in support of his case. In the facts and circumstances of the case, learned counsel submitted that the Sub-Judge, Purnea has committed apparent error of jurisdiction by passing order dated 19.09.1977 in closing the case of the plaintiff and directing the defendants to proceed with the case on the failure of the plaintiff to take any step on that date. It is contended that the court below should have dismissed the suit for non- 6 prosecution by taking recourse to the provision laid down under Order XVII Rule 2 of the Code in as much as the evidence adduced so far by the plaintiff was admittedly formal in nature. It has been contended that recourse to Rule 3 of the aforesaid Order should not have been taken, which is penal in nature. Learned counsel has placed reliance upon a decision of this Court in Bhupendra Prasad and others Vrs. Moosamat Tabizun Nissa and others, 1979 B.B.C.J. 513, in support of his aforesaid submission. It is urged that in the aforesaid identical issue, this Court has held that in view of the evidence produced by the plaintiff being of formal nature, the court below should have taken the recourse of the Order XVII Rule 2 of the Code and should have dismissed the case for non-prosecution under Order IX of the Code. The relevant paragraphs of the aforesaid case are quoted as under: “6. In my opinion, the argument has got substance and must be accepted. My reasons for the above view are as follows: It is no doubt true that Order 17 Rule 1 of the Code vests in courts a discretion to grant time to a party at any stage of the suit. Rule 2 lays down that where, on a day fixed for hearing of the suit, “the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that 7 behalf by Order IX or make such other order as it thinks fit‟. The words “such other Order “having been differently interpreted by different High Courts, the Parliament by Act 104 of 1976 inserted explanation to this rule to make the position clear by empowering the court to proceed with the case even in absence of a party where evidence or substantial portion of the evidence of such party has already been recorded. The explanation reads as follows: “Explanation – Where the 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 which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.” The consensus of the various High Courts in India with respect to the expression “such other order as it thinks fit” even before the addition of the explanation by the 1976 Act, has been that these words empowered the court to grant an adjournment and not to decide the case on merits only. The power of the court to give a decision on merits has been recognized only in certain circumstances. None the less the rule vested, even in part heard case, in the court a discretion either to proceed under Order IX or to give a decision on the merits. It has been further observed that in cases where the plaintiff had adduced all his evidence or had made out in prima facie case, but was absent at the adjourned hearing the court should proceed to give a decision on the merits and not to dismiss the suit. In this connection the provisions of rule 3 also need be noticed. According to this rule, where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been 8 allowed, the Court may, not withstanding such default, :- “(a) If the parties are present, proceed to decide the suit forth, with or (b) if the parties are, or any of them is, absent proceed under Rule 2.” There has been an amendment in Rule 3 by the 1976 Act. Prior to the amendment the Rule authorized the court in case of the above default, to “proceed to decide the suit forth- with”. Although by virtue of the explanation added to Rule 2, the defaulting person will be deemed to be present at the adjourned hearing, though physically absent and there by virtue of clause (a) of Rule 3, the Court may proceed to decide the suit forthwith, as perhaps was done by the learned Subordinate Judge, the argument is that the explanation would apply only in a case where the whole of the evidence or, in any event, “a substantial portion of the evidence” by any party has been recorded and not otherwise, and in as much as the evidence of the three witnesses was not on the merits of the plaintiffs‟ suit but was entirely formal just for the purpose of satisfying the insistence of the trial court for taking up the case, Rule 3 could not be applied.” “7. As far back as in the year 1922 a Bench of this Court in the case of Sashibhushan Kumar and others V. Dwarka Prasad Marwari and others observed that where the plaintiff had adduced no evidence, the court ought not to take defendant‟s evidence so as to give it jurisdiction to act under Rule 3. The court should proceed under Rule 3 only when there are materials on the record on which court can decide the case. The same view has been expressed by a learned single Judge in the case of Chamak Lal Mandal V. Mauji Mandal. In the case of Tekchand Manumal V. Kalu Sing Manu Singh and another it was observed by Bench of that Court that powers under Rule 3 should be used only in exceptional cases and that ordinarily power under this rule should not be 9 exercised unless case of both sides is on the record. Then again, in the case of L. Mahadev V. A. K. Anantha Krishna a Bench of the Mysore High Court observed that the provisions of Rule 3 were almost penal in construction and must be construed strictly and whenever there was a doubt as to whether the order comes under Rule 3 or Rule 2, the party must be given the benefit of Rule 2.” 10. In above view of the matter, I also do not find any reason to take a different view and as such, in the facts and circumstances of the case, I hold that Additional Sub-Judge, Purnea should have taken recourse to the provisions of Order XVII Rule 2 in place of Order XVII Rule 3 of the Code. 11. Accordingly, I allow this appeal and set aside the judgment and decree dated 19.9.1977 passed by the 3rd Additional Sub-Judge, Purnea in Money Suit No.17 of 1976 / 15 of 1977. The effect of setting aside the judgment and decree amounts to restoration of status quo ante, i.e., the stage in the suit prior to the date of passing of the judgment and decree dated 19.9.1977. The trial court would proceed with the suit from that stage and dispose of the same in accordance with law. The matter being old one, it is expected that the court below would take steps for its expeditious disposal. 10 However, it is made clear that since none has appeared on behalf of the respondents at the time of hearing of this appeal the trial court would issue notice/summons to the parties after fixing a date. 12. In the circumstance of the case, there would be no order as to costs. Patna High Court, Patna. Date the 19th of October, 2011. Sanjay Kumar/N.A.F.R. ( Dr. Ravi Ranjan, J.)