iBiB^^i^'ilffiiijIIBBSiBilBBrrmwi^ IN THE HIGH_CQURT OF _CHHATTISGARH .Ar.-BILASPUR^C.G. M.A., No.^"6° /2003 I A^PEL^ANT ^EATMSNT" Madeena wi,fe_of Liyakat AIi^ aged about _ 50 years / occupation bangle seller^R/o village Datima-, police statiOB Jainagar^ Tahsil Surajpur^ Distt^Surguja (C.G.) VERSUS RESPONDENTS NON-APPLICANTS /' S-. 2) Daroga Singh,@ Darogi Singh^ S/o Jagbaran Si.ngh^ aged atooat 25 years < _ R/o yillage Karampur, police station Bishrampur^ Tahsil Surajpur^ DiAtt»Surguja(CG) • (OWNER) --- United India Insurance Co^ Ltd, through Branch Maaager, Branch office near Ram Mandir, Ambikapur^ Distt^ Surguja (C^Go) (INSURER) MISC . _APPEAL_UNDER _QRDER _43 :.8©LE _ _ 1 (C). _OF C .P.( READ WITH _SECTION _ ,173 _OF MQTOR - VEHICLE ACT —k. ^ ^^' HIGH COURT OF CHHATTIS<SARH AT BILASPUR MISC APPEAL No. 760 OF 2003 APPELLANT RESPONDENtS Madeena Versias Daroga Siagh @ Darogi Snigh and miother ^J' ^ SINGLE BENCH:- Hon. Shri N.K. Agarwal, J PRE^BNT :- Shri Ashok Kumar Shukla, Advocate, for the appellaiit. Smt. Meena Shashtri, Advocate, for the respondent No. 1. Shri Dashrath Gupta, Adv. for the respondent No. 2. O R D ER (4-2-2010) 1. Instant appeal is directed against the order dated 18-7- 2003 passed by Additional Motor Accident Claims Tribunal (FTC), Surajpur in Misc.M.A.C.C. No. 3/2002 whereby aiid whereunder the application preferred by the appellant under Order 9 Rule 9 of C.P.C. has been dismissed holding it as not maiiitalnable. 2. Facts of the case in brief are that the appellant prefen'ed a claim application against the respondents claiming Rs. 5 lacs as compensation for the injuries sustained by her. ^p-The case was fixed for appeUant's evidence on 7-8-2001 by the Tribunal. On that date, the claimant as weU as her witnesses was absent. The claimant's counsel filed an application under Order 17 Rule 1 of C.P.C. for adjournment of the proceedings. Learned Tribunal dismissed the said appUcation and also dismissed tlie claim case due to absence of claimant as well as her witnesses. There-against, the application under Order 9 Rule 9 of C.P.C. has been prefen'ed by the appellant for restoration of claim ease No. 137/2000. Vide impugned order the said application has been dismissed by the Tribmial holdmg that leamed Tribunal has passed the order under Order 17 Rule 3 of C.P.C. agatast which the .^ss:^. ^ restoratiou application is not maiutataable, 3. Leamed comisel for the appellant would submit that leaiTied Tribi.mal has Itxed the case on 7-8-2001 for recording evidence of the parties. On 7-8-2001, neither tlie claimant nor her witnesses were present nor the witnesses of non-applicants were present. Therefore, leamed Tribiuial has dismissed the claim petition under Order 17 Rule 2 of C.P.C. and the said order is not appeUable. Against ttiat, only remedy available to fhe claimaat was to file application for restoration of fhe claim case under Order 9 Rule 9 of C.P.C. and the same has been filed by the appellant which is maintainable and the Tribunal has erred in dismissing the application on the grouud of non-maiutainability of the application. 4. Per contra, leamed counsel for fhe respondents would submit that the order was passed under Order 17 Rule 3 of C.P.C. against which only appeal Mes and learned Tribunal has rightly rejected the application as not maintainable. 5. I have heard learned counsel for the parties and perused the order impugned and the record ofthe Tribunal. 6. The scope and ambit offhe Order 17 Riile 2 and 3 falls for determination in fhis appeal. Order 17 Rules 2 and 3 of C.P.C. read thus:- <r2. Procedure if parties fail to appear on day fbced.- Where, on any day to which the hearing of the suit is adjoumed, the parties or any of them fail to appear, the Court may proceed to dispcse ofthe suit in one ofthe modes directed in that behalfby Order D( or make such other order as it thinksfit Explcmation-Wl^ere the ewdence or a substcsntial portion of the evidence of any party has already been recorded and such party fafls to appear on any day to iuhich the hearing of the suit is adjoumed, the Court mai^ in its discretion, proceed with the case as if such party werepresent .-•...^-^"^' : '^, ~'S^SES:^ ^ <^ ^ 3. Court may proceed notwltkstwtding either party fcdls to produce evidence, etc. - V/here any party to a suit to whom time has been granted faUs to produce his evidence, or to cause the attendance ofhis zvitnesses, or to peiform any other act nec^ssary to the further progress of the suit, for which time has, been allowed, the Court Tnay, notivithstandmg such default,- (a) if the parties are present, proaeed to dedde the suitforthwith, or (b) if the parties are^ or any of thcm is^ absent^ proceed under rule 2. 7. Order 17 Rule 2 of C.P.C. permits the Court to adopt any mode provided ia Order 9 or to inake such order as he thinks fit when on any day to which the hearing of the suit is adjourned, fhe parties or aay of fhem fail to appear* The explanation is ia the nature of an exceptiou to the general power given under the rule, confeiring discretion on the Court to act under fhe specifled circumstance i.e. where evidence or a substantial portion of tiie evidence of any party has already been recorded mid such party fails to appear on aiiy day to which the hearmg of the suit is adjoumed. If such is the factual situation, the Coiirt may, iii its discretion deem fhat such porty was present. llnder 9 of Rule 8 of C.P.C. tf defendant appears and the plaintiff does not appear, when the suit is caUed on for headng, the Court shaU niake an order fhat fhe suit be dismissed unless the defendant admits the claim or part thereof, m which case, the Coiirt shall pass a decree against the defendant upon such admission and, where onty 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 fitw, as an alternative to adoptmg one of the modes direcfed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the Court is to proceed under Ri.de 2, when a party is absent. If Order 17 Rule 3(b) is read with explanation to Order 17 Rule 2, it would 4 be clear that the explanation gives discretion to the Court to proceed with the case under rule 3, even if a party is absent. But such a course can be adopted oiily when the absentee part5'r has already led evidence or a substantial part thereof. tf the positioa is not so, the Court has no option but to proceed as provided under Rule 2. Rules 2 aiid 3 operate in different and distinct sets of circumstaiices. Rule 2 applies when aa adjoui-nment has been generally gi-anted and not for any special purpose. On the other hand, Rule 3 operates where the adjoLimment has been given for one of fhe purposes mentioned in tlie rule. Wtdle Rule 2 speaks of disposal of the suit in one of tiie specified modes, Rule 3 empowers the Court to decide fhe suit forthwith. The basic disthictiou beteveeu fhe two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter, the party tiiough present has committed any one or more of the enumerated defaults. The combined elfect of the explanation to Riile 2 aiid Rule 3 is that a discretion has been conlerred on fhe Court. The explanation to RLile 2 is in the natm'e of a deeming provlsion when under given circumstances, fhe absentee party is deemed to be present. It obviously means that the evidence on record is si.ifficient to substantiate the absentee party's stand and for disposal of fhe suit The absentee party is deemed to be present for fhis obvious purpose. The Court whfle acting under fhe explanation, may proceed with the case if that pnma facie is fhe position. Therefore, a conjoint reading of expression "m;ake such order as it thinks fit?!l, and the explaiiation to Rule 2 would mean tlie CoLirt may proceed to clispose of the suit ifevidence on record is sufficient to substantiate the absentee party' stand aiid for disposal of the smt, otherwise the Court has to dismissed the suit under Order9ofC.P.C. IIi 1> ,.^TSS%,. /y^ \ \^^// vs%^^^v v^ ^ 8. Almost identical facts fell for consideration of fhe Supreme Court in case of Mohaiadas aud others -v- Ghisia Bai aad others reported iii AIR 2002 SC 2436 in which on the date when tlie case was fixed for evidence, the counsel for plamtiff/appellant iiioved an application for a short adjoi-irmnent which was rejected, fhen again, counsel for flie plamtiff moved an application under Order 17 Rule 1 of C.P.C. on the gi-ound that the plaintiff is seriously ill and, therefore, the case may be adjourned, the sald application was also rejected, thereafter the trial Court dismissed the suit under Order 17 Rule 3 of C.P.C., there-against, an appeal was preferred, and fhe case was remanded back by the Supreme Couil holding that tihe order passed was not under Order 17 Rule 3 but. was under Order 17 Rule 2 of C.P.C. The Supreme Court in para 3 of its judgment has observed as under:- <€In the present ccise what we find is neither the plaintiff-appelkmt nor his witnesses were present on 7th May, 1994. Therefore, the case has to be dismissed under Order XVII, Rule 2. Even Rule 3 itsetf provides that if the parties or an-y of them absent, the Court shcdl proceed to decide the suit under Order XVII, Rule 2. In view of the said legal position, we are of the view that the view taken by the Court below was erroneous and deserves to be set aside. We, therefore, set aside the judgment under appeal and sent the case back to the trial Court to decide the matter in accordance with law. 9. In view of the fact that fhe claunant and her witnesses were absent on the date ofhearmg, I have no hesitation to hold that leamed Tribunal has erred in dismissiiig tlie application preferred by the appellant under Order 9 Rule 9 of C.P.C. masmuch as the said dismissed was under Order 17 Rule 2 ofC.P.C. and not under Order 17 Rule 3(a)ofC.P.C. 10. In view of the aforesaid discussion, in the considered opinion of fhis Court, fhe appeal deserves to be allowed and is hereby allowed. The application preferred by tlie appeUant iinder Order 9 Rule 9 of C.P.C. is held to be x-.'..,. ^ l^^i J "%J3^^ 6 maintainable. The impugned order passed by the Court below is set aside and the matter is remitted back to the Tribunal to decide the appUcation under Order 9 Rule 9 of C.P.C. afresh on its own merit in accordance with law. 11. Since the matter is very old, it is directed to decide the said application as early as possible preferably within a period of 3 monfhs from the date of receipt of a copy of this order. 12. The observations, if any, made heremabove, shall not be construed as my opinion on merit. 13. The record of the Tribunal be sent back forthwith. Sd/- N. K.Agarwal Judge /-. .) 13