RSA No.3014 of 2010 (O&M) - 1 - ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3014 of 2010 (O&M) Date of decision:09.08.2010. Nirmal Singh ...Appellant Versus Gram Panchayat village Safera ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Sukhdeep Parmar, Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J. The plaintiff is in second appeal against the judgment and decree of both the Courts below by which his suit for permanent injunction has been dismissed in terms of Order 17 Rule 3 of the Code of Civil Procedure, 1908 (for short “CPC”). The plaintiff filed a suit for permanent injunction in order to restrain the defendants from interfering in his peaceful possession over the land measuring 23 Bighas 4 Biswas on the ground that it has been leased out to him on 12.05.2006 for a period of one year against payment of lease money vide receipt No.51 dated 12.05.2006. In the written statement, it was alleged by the defendant that the plaintiff was not in possession of the land as detailed in head note of the plaint, but he is in possession of 3 Bighas 5 Biswas of land only which was leased out to him for one year against a deposit of Rs.900/-. It was also alleged that the RSA No.3014 of 2010 (O&M) - 2 - ****** defendant had never threatened to dispossess the plaintiff who himself is required to vacate the land measuring 3 Bighas 5 Biswas after expiry of the lease period. On the pleadings of the parties, issues were framed on 25.10.2006. The plaintiff did not lead any evidence in support of his case despite availing several opportunities. Therefore, his evidence was ordered to be closed by the Trial Court and in terms of Order 17 Rule 3 CPC his suit was dismissed vide its judgment and decree dated 30.05.2008. The first appeal filed by the plaintiff/appellant also met with the same fate. In this second appeal, learned counsel for the appellant has submitted that in the absence of evidence, learned Trial Court should have dismissed the suit under Order 17 Rule 2 CPC instead of deciding it under Order 17 Rule 3 CPC. I have heard learned counsel for the appellant and perused the record with his able assistance. Before adverting to the submissions made by learned counsel for the appellant, it would be relevant to refer to the provisions of Order 17 Rule 2 and Order 17 Rule 3 of the CPC, which are as under: - “2. procedure if parties fail to appear on day fixed. -- Where, on any day to which the hearing of the suit is adjourned, 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 behalf by Order IX or make such other order as it thinks fit. [Explanation. -- Where the evidence or a RSA No.3014 of 2010 (O&M) - 3 - ****** 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.] 3. Court may proceed notwithstanding either party fails to produce evidence, etc. -- 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 allowed, [the Court may, notwithstanding such default, -- (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under rule 2.]” A bare perusal of Order 17 Rule 2 CPC provides that it could be invoked by the Trial Court where during the 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 behalf by Order IX and if there is substantial evidence on the record and the plaintiff fails to appear on any day to which the hearing of the case is adjourned, the Court has got jurisdiction to proceed with the case as if such party were present, RSA No.3014 of 2010 (O&M) - 4 - ****** meaning thereby it could decide the suit even on merits in his absence. Insofar as Order 17 Rule 3 CPC is concerned, it could be invoked in the case where any party to a suit fails to produce his evidence, the Court may, even if the parties are present, proceed to decide the suit forthwith and if the parties are not present, proceed to decide the suit in terms of Order 17 Rule 2 CPC. In the present case, the counsel for the plaintiff was present, but there was no evidence, either oral or documentary, lead by the plaintiff, therefore, there was no alternative with the Court but to proceed in terms of Order 17 Rule 3(a) CPC and decide the suit forthwith. In a case where counsel for the plaintiff is not present, the Court could proceed in terms of Order 17 Rule 3(b) of the CPC. Thus, I do not find any substance in the argument raised by learned counsel for the appellant that the Trial Court should have proceeded under Order 17 Rule 2 CPC instead of Order 17 Rule 3 CPC because in the present case there is neither oral nor documentary evidence lead by the plaintiff. Therefore, while counsel for the plaintiff is present, the Court below has rightly proceeded under Order 17 Rule 3(a) of the CPC. No other argument has been raised. In view of the aforesaid discussion, I do not find any merit in this appeal and the same is hereby dismissed. No costs. August 09, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE