^ss'^. :iiWS/^ A£& HieH COURT OF CHMATTES^RH AT BI14SPUR Cwil fte.vjsion No.31 of 2008 Apoljccsnts . 1.. Padma, W/o. &Dverdhan, oged about 60 •Piaintjffs years, Caste-Kotiya (fatkiya Sao), ft/o. Viilage r^akbar, P.H.N.No.32, R.I. Circle fensabel,. Tohs?! Bo^icha, bIstrJct Jashpur (C,&) 2. Mciheshwar, S/o. 6overdhan,a§edaboyt 20 years, Caste-Kotiya (Katktya Sao), R/o. Viifage Nakbar,P.H.N.32. R.Z. Circte j<ansabel, ' T^hsil Baaicha, Disfrict Jashpur (<;.6.) Resssondents befend.ants Ver-sys 1. Bainsi Ram,, S/o. Ishwar.aged about40 years, Caste-MGhkyJ, R/o. ViJJage Nakbar, JangGJtoii; P.H.N.-32, R.I. Circle IScmsabel, Tahst! ^gicha, DJstrlct Jashpur (C,6«) . ; 2, • . ^ahesh Ram ©'BhYuneshwar1, S/o< Ishwar, aged abgout 38 years/Caste- MahkuJ, R/o* Viilage Nakbar, Jan^iltoli, P.H.N.-32, R.I. Circle Kcmsc'bet, Tahsll ^ Bamcha, District Jashpyr (C.&) 3< Amar Ram, S/o- Lcrte Rterpeshwar !^,m, ageci about 18 years,CaslBmMQhkyl, R/o* Viiia9eNakbar,Jan9aJtoii,P.H.N.32,R.L Ci.rcle Kans^be.1 Tahsil Bagicha, Distrjct Jashpur(C.a) 4,' BhoRtoram, S/o. Xshwar, aged about 33 years, ^ Cas-te-Mah kui, R/o. ViSSage Nakbar, Jangdtoii, P.W.N. 32, R.I. Circie Kansabe!, Tahsi! ^Bagicha, .Distrlct Jashpur (C.^.) 5, The ^tate of ChhQtt-is^arh/.. Throygh;' the Coijector, Jashpyr, District Jashpyr (c.a) (CI^L REVISHON U/S 115 OF THE CODE Of CTVIL PftOCEDUftE) Ir -^- (SB; Hon'bte Mr T.P. Shermcs, J.) Mr. A«K<Pra^xd,counsel for the appeiiants. None cppears for respondents No.l to 4 though served. Mr- P*RPatankar,Pan®Iiawyer for the responclent No*5/State. ORAL ORDER (^Qssed on 27th Februeiry, 2009) TheappHcdnts have .filed the Instant reyislon agalnst the order dated 5,1<20Q8 passed by - 1+i.e Dbtrict Jydge, Jashpyr, jn unregjstered mjsce!taneou.s appeal wher^.by the learned District Jud.ge hasdismissed •ri^e appeal fiied against the order of dlsmbsal of the'application flted .under ftule 9 'of Order 9 of the Code of Civi! Procedure, 1908- (heremafter r'eferred to as'Code') on the. ground that ifie order passed by the Court betow was under Kute 3(a) of Orde.r 17 of the Code an.d •not under Ruje- 3(b) ofQrder 17 of the Code. 2. I.haye hedrd learned counsei for the <xpp!jcants and learne.d'Pane-1 lawyer for State/respondent No.5 and perused the order Jmpygncd and o1+i.er documents filed on behalf of the appjlcants, 3- Learned coun.seJ for -the o.ppiicants frankly admJts l+^at 1+ie o^plscants were re.quired t@ fiie applicatSon under Sectjon .S of the Limltation Act, 1963 before 1fse trlai Court or were reqyired to exptatn the de{ay in filing. an application beyond th-c pe.riod of Hmitation but bonafideJy and under bonaflde wlJling, they have not fjled sudl. appljcatjon and have notelaborate!y mentsoned the fact'jn the applicatlon fiied under Rute 9 of Order 9 of the Code but preclseSy mentioned "rire, fact that after passing the order dated 14.2.2006 th^y have appifed for a copy of 1+ie order and after obtdlning a copy of. the order they have fjted an appljcatlon wlthm 30 dla^^s.:from the date 'of receipt of a copy. of the'- order, Learned coynse! vehemBntly argues that o'n the date of 1+ic order dated 14.2.2006 passed by the Civil Judge Ctess-I, Jashpur, bo-Hi th® partles were not present ond ar? appiication. for adjoumment •yncier Ry,!e 1 ;^4^^ -5- of Order 17 of the Code was fjledon behalf of the applicants/pbJntlffs and the same was cfismtssed. Lcarned'coynse! furl+ier sub.-mits that at th'e time of order of.dismissat, the appllcants/plaintiffs were no't pre^nt and theref.ore, the Court of fjrst snstance'i^as hot competent to proceed or to decide the suit in accordance wlth ctause (a) of RuJe 3 of Order 17 of the Code, but the Court was competent to proceed under Rybl7of Order 2 i..e..jn accordance wilfi Order 9 of the Code, byt the c^pellate Coyrt has ^rongly dlsmss^d the appeat on the ground that ifie applscatjon filed under ftuie 9 of Order 9 of the Code was not-'tenable before the -tria! Court on 1+se asajmption that the trla! Court has proceeded and passed the order under Rule 3(a) of 'Order 17 of the Cocie. 4. On the other. hand, order Jmpygned is suppo'rted on behdf of the respondent No.S/State. S. Order dated 14.2.2006 passed by the Civit Judge Ctes-I, -Jashpur .shows 1^af on thedate of hecsring, both the partjes M^ere not pre^nt and an applicatlon for adjoyrnmcnt was filed on behalf tff coynset for the appticants/piajntjffs., In the absence. of the parties, the Court was not competent to pass.any order in-terms of clause (a) of Ru!e 3 of Order t7 of the Code. The Court'was oniy competent to proceed under-ftyle 2 of Order 17 En accordance with Order 9 of the Code and the Gourt of first Instance has dismlssed the sult under the provlsions of ftuie 2 of Order 17 m accordance wlth Order-..9 of the CPC. 6, ' Order 17 of t^.e Code •reads as under^ 1, Court may grant tlme and .o.djourn hearing^Kl) The Court may; if suffscsent caj^ is shown, at any stage of the suit/grant time to the parties or to any of them, and ^.ay from time to tsme adjourn the hearmg of the suit for reasons to be recorded m writing; Proyided that no such adjournment shaSI be granted mor'e than It^ree times to a party dursn9 harsng of 1+iie syits.1 (2) Costs of adjoumme.nt.-In every sy.ch case ttie Court shail fixa day for the further hearsng of 1+ie suit/and -^- ^' ^- ^' [shalj make such. orders as to costs occasioned. by the adjournment or such higher costs as 1+ie Court deems fitj: Provided 1+^at,- • (a) when the hearing of the suit.has commBnced, It shali be continued from doy-to-cfay yntit all the witnes^s ins attendarsce have .been examined, yntess the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearang beyond-the following day-is necessory, (b) no acijourrsment shaJ! be granted at 1+ie request of a party, except where the circymstances are beyond the contro! of that par'ty,. (c) the fact that the.pleader of a party ,is engaged in another Court, shail not be a ground for adjoyrnment, (d) where the illness of a pleader or his inabslsty to .conduct 1+Ke aase for any reason, other than his being enga^ed in another Court/is put forvyard as a ground for adioyrnment/the Court shall no-t gront the adjournment uniess it is ^xtisfied that the party" qppiying for -adjoumment could rsot have engaged another pleader1 in time, (e) where'-a .witness is pre^^nt in Court but a party or his pieader ss not present or me party or hjs pieader/though present in Coyrt, is not ready to examine or cross-examme.the witness, 1+ie Court may, if it thinks fit, record the statement of the wtness and pass sych orders as it thinks fit djspensing wsth the examinatson-in-chief or cross- examination of the witness, as the case may be, by the party or hi^ pieader not present or not ready as aforesald,] 2. Procedyre if parties fdl to appear on day fsxed<- Where, on any day to which the hearing of 1fie sust is adjourned, ttie parties or any of them fajl to appear, the Coyrt may proceed to dispose of the syst In one of the modes directed in 1+iat behalf by Order IX or make such other- or-derfltS it thinks fit. [Exptanation--Where the evidence or a sybstanti.ai portion of the evidence of any party has aJready been recorded and such party' falls to o^pear on.any day to .^^^^^ :——-'——.3n lltPNI ! L.^ [/.. -T^~ which: -tfie hearing of the; suit Is adjournad, the Court moy, ?n its discrefion, proceed with 1+ie ca^. as if such party were preserst. . 3. Court'rpay.proceed no.twithstandjng either party fails to produce evidence, etc.-Where any :party to a. suit to whom time has been'Qrantcd fails ta prodyce hls evidence, or to- cayse the att^^dcsnca of hls witnesses^ or . to perform any other - act necessary to the further progress'of the' ^uit, for which time has been allowed, [the Court may.notwjthstandi.ng such defaytt,- ^x) if the parties are present, proceed to decicte 1+iesyitforthwjlfi,or ^ • (b) If the parties are, or any of thcm is, absent, proceed under mie 2]. 7. • For proceedlng under ctause fo) of Ryle 3 .of^Order 17 of lf$e Code, presence of parties Js ^^ quanon. Pre^nce of advocate ft? represent the porties and to fi!e. an applicatJon for adjoum-ment does not constityte the prese.nce of. parties. In the prese.nt case, on .the date ofheanng be.fore •rt^e triaj Court,.part?€S'werenot present. Coun^Bl for 1+?e ^plicwits has sought adjournment. The Court beiow was not corppBterst to proceed or t^ pass any order under cbuse Ta)'of ftute 3 of Order 17 of thc Code, The order passed by the trial Cour-t may be ynder Rule 2 of Ordler 17 le.. In accordance with the provisions of Order 9 of th.e Code«The order possed ynder clayse .(a) of Ryje 3 of Order 17 of the Code Is. appeabble- or revisable jn accordance i^lth Section 96 or 11S of the Code/but the order passed under Rule 2 of Order 17 l.e< in ac.cord.arsce with.Order 9 of the Code Is appeaSable as we.li as party mc^ appiy for Its settlng aside or restoratlon In accordancewith the provisions ^f Order 9 of t^B Code. The bwer oppellate Court has dismJssed the csppea! onJy on the sole ground that no remedy for scttinQ aside the order was avastebSe to.the ^p^tieants ynder Order 9'of the Code. The lower cppellate Court has committed il!ega!jty in arrsvjn9 at a flndin9-that in the absence of itse- partles on 1+ie date hearing, 'ttie Court below was only competent to proceed dnd pass the order under cbu.se (a) of Rute 3 of'order 17 of the Code and was not B/- ^ r ^ competent to pass ciny order in accordance with Rutc 2 of Order 17 j.e. In accordance with Order 9 of the Code. 8. For Itie foregolng reasons^ the revSsJon. Is atbwed. The. order dated 5.1,.2008 passed by ^e District Jud3e-,.Jashpurishereby-set aside. The case Is rerpithsd back to the Hrst Appeilcrte Coyrt for hearing the-case and passlng the ordcr afresh. ftegsstry 1s directed to send th.e records forthwith to the Court bebw. No order as to costs. Sd/- T.P. Sharma Judge