> c^ 6Y- IN_THE_H1GH CQURT OF CHHATTISGARH ^S BILASPUR M_.A^_No•_^s/2003 •^H ^te l^ ^, AE>P-ELLANCS_ "CLAIMANTS ^ ^ ^ '^yy ^ ^-^•^^ ^^ ^' s 1) Preml^l s/o Heeralal, aged about 30 years^ occupation agriculture* 2) ,Hardeo Prasad^ S/o Premlal ^ ~ aged about § years^ Minor thrpugh natyral guardian (fathe r) Premlal, S/o Heeralal, aged abgut 30 years- R/o yx1lage Datima ^ po1ice station Jainagar, Tahsil Surajpur, Distt. Surguja(CG). VERSUS RESPONDENTS NON-APPLICANTS 1) Smt.,Jasinta Tigga^ W/o Pataras Tigga, aged aabout 40 years, occygation business^ R/o riew HineSf pplice,^chowki/Bhatgaon^ police station PrQtappur, Tafesil Surajpur, Distt.Surg-uja (C.G.) ^ ^. ,) The _ Oriental^ Insurance Co. Ltd *_ through Manager, the Oriental Insurance Co. Ltd, sadar Road, near State Bank of India, - - Anbikapur, Distt.Surguja CC»G»)• / '^1 MISC. ^PPEAL UNDER ORDER "47 RULE1 OP C.P.C. R/W SECTION- 173 GF MOTOR VEHICLE ACT COURT OF CHHATTISGARH AT BIIASPVR APPELLANl^ MISC APPEAL No. 757 OF 2003 Premlal and another HESPONDENTS Versus Smt. Jasinta Tigga and anotlier BEHCHs- Hon. Shri N.K. Agai-ival, J c PHESEHT:- ^ ^l- Shri Ataiiu Ghosh^ Advocate^ for the appellant. Shri Sun'rakant Misl-ira, Advocate, for fhe respondent No. 2. ORAL ORDEH (10-2-2010) 1. Instant appeal is directed agauist tiie order dated 26-6- 2003 passed by II Additional Motor Accident Claims Tribunal (FTC), Surajpur in M.J.C. No. 16/2002 whereby and whereunder the application prefeiTed by the appellant under Order 9 Rule 9 of C.P.C. has been dismissed holding it as not maintainabie. 2. Facts ofthe case m brief are that the appellaiits preferred a claim application against tlie respondents claimtng Rs. 10 lacs as compensation for the injuries sustained by them. The case was llxed for appellant?s evidence on 22-6- 2001 by the Tribunal. On that date, the claimants as weU as their witnesses were absent and their counsel pleaded no instruction. Leamed Tribunal dismissed the claim case due to absence of clainiants as well as fheir wituesses. There-against, the application under Order 9 Rule 9 of C.P.C. has been prefen-ed by the appeUants for restoration ofclaim case No. 200/2001. Vide impugned order the said application has been dismissed by the Tribi.mal holdmg tliat learned Tribunal has passed the order under Order 17 Rule 3 of C.P.C. against which the restoration appUcation is not maintainable. 3. Leaiiied counsel for the appellants would subniit fhat leanied Ti-ibunal has fixed the co.se on 22-6-2001 for ^ ^. ^. recording evidence of the parties. On tliat date, neither the clamiants uor her witnesses were present nor the witiiesses of non-appMcants were present. Therefore, leanied Tribiinal has dismissed the claim petition under Order 17 Rule 2 of C.P.C. and the said order is not appellable, Agaiast that, ouly.-reniedy available to the claimarit was to llle application for restoratiou of the claim. case under Order 9 Rule 9 of C.P.C. and ttie saaie has been filed by the appellantcwliich is matntainable and the Tribunal has erred in dismisstng fhe application on the ground of non-niaintainability of the application. 4.. Per contra, leamed couiisel for Uie respondents would submit tliat the order was passed under Order 17 Rule 3 of C.P.C. against which only appeal lies and learned Tribunal has rightiy rejected tiie application as not maintatnable. 5. I have heard learnecl comisel for the parties and perused the order impugned and the record of fhe Tribunal. 6. The scope and ambit ofthe Order 17 Rule 2 arid 3 fslls for determination in tl-ds appeal. Order 17 Rules 2 and 3 of C.P.C. read tlius:- S2. Procedvre if parttes fail to ssppear on doy fixedL- Where, on any day to tvhich the hearing of the suit is adjoumed, the pai'ties or any pf them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behcdf by Order JX or niake suchother order as it thinksfit Bxplanation-Where the ewdence or a svbstctiitial portion of the evidence of any party has czlready been recorded and such pai-ty fails to appear on any day to which the hearing of the suit is adjoumed, the Court m.ay, in its discretwn, proceed with the case as ifsuch party were present 3. Court fnay proceed notwithstanding ctth&r party fcdls to produce evidencey etc. - WUere any party to a suit to whom time has been grantedfails to produce his evidence, or to ccmse the attendance of his witnesses, or to perfoiTn any other act necessary to the jurther progress of the suit, for ivhich time has been allowed, the Court ma-y, notwithstanding such default,- issssiiafc^i ^ ^'^^% 3 ^\ ^ (a) if the parties are present, proceed to decide the suitforthiuith, or (b) if the parties are, or any of them is, absent, proceed under nde 2, 7. Order 17 Rule 2 of C.P.C. pennits tlie Court to adopt any mode provided in Order 9 or to make such order as he thinks fit when on any day to which the headng of the sLiit is adjom'ned, fhe parties or any of them fail to appear. The explanation is in the nature of an exception to tlie general power given uuder fhe rule, conferrmg discretion on the Court to act under the specified circumstance i.e. where evidence or a substantial portiou of fhe evidence of any party has ah-eady been recorded and such party fails to appear on any day to which the heaiing of the suit is adjoumed. If such is the factual situation, the Court may, in its discretion deem that such party was present. Under 9 of Rule 8 of C.P.C. if defendant appears aiid the plaintilf does not appear, when the suit is called on for hearing, Uie Court shall make an order fhat the suit be dismissed unless the defendant admits the claim or part thereof, in which case, the Court shall pass a decree agaiiist tiie defendant upon such admission and, where only part of tlie clatca has been admitted, shall dismiss the suit so far as it relates to tfae remainder. In Rule 2, expression used is "make such order as it thiiiks fit", as an alternative to adopting one of tlie modes directed m that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the Court is to proceed under Rule 2, when a party is absent. If Order 17 Rule 3(b) is read with explanation to Order 17 Rule 2, it would be clear that the explanation gives discretion to the CoLirt to proceed witli the case under nile 3, even if a party is • absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part tiiereof. If the position is not so, tfae Court. has no ^ 4 option but to proceed as provided under Rule 2. Rules 2 and 3 operate in different and distiiict sets of circumstaiices. Rule 2 applies when an adjoumment has been generally gi^nted aiid not for any special purpose. On the other hand, Rule 3 operates where the adjouriiiuent has been given for one of fhe purposes mentioned in the rule. WhUe Rule 2 speaks of disposal of fhe suit in one of the specffied modes, Ri-ile 3 empowers the Court to decide the^ smt fortfawith. The basic distmction betvyeen the two rules, however, is that in the former, any party has failed to appear at fhe heariiig, while in the latter, the party though present has committed any one or more of the enumerated defaults. The combined eifect of the explanation to Rule 2 and Rule 3 is fhat a discretion has been conferred on the Court. The explanation to Rule 2 is in the nature of a deeming provision when under given circumstances, the absentee party is deemed to be present. It obviously meaas that the evidence on record is sufficient to substaiitiate the absentee party's stand and for disposal of fhe suit. The absentee party is deemed to be present for this obvious purpose. The Court while acting under the explanation, may proceed wifh the case if that prima facie is the position. Therefore, a conjoint reading of expression "make such order as it thinks fif, and the explanation to Rule 2 would mean the Court may proceed to dispose of the suit if evidence ou record is sufficient to substantiate the absentee party' stand and for disposal of the suit, ofhenyise the Court has to dismissed the suit Lmder Order9ofC.P.C. 8. Almost identical facts feU for consideration of the Supreme Court in case of Mohandas aad others -v- Ghisia Bai and others reported in AIR 2002 SC 2436 in which on the date when the case was fixed for evidence, the counsel for plaintiff/appeUant moved an application for a short adjournment which was rejected, then agam, ^ ^^>^ ^''^ ^ -^ counsel for the plaintiff moved an application under Order 17 Rule 1 of C.P.C. on the ground that the plaintiff is seriously Ul and, fherefore, fhe case may be adjourned, the said application was also rejected, thereafter the trial Court dismissed the suit under Order 17 Rule 3 of C.P.C., there-agatnst, an appeal was preferred, and fhe case was remanded back by the Supreme Courf holding tfaat the order passed was not under Order 17 Rule 3 but was under Order 17 Rule 2 of C.P.C. The Supreme Coiirt in para 3 of its judgment has observed as under:- UIn the present case ivhat we find is neither the plaintiff-appeUant nor his witnesses were present on 7th May, 1994. Therefore, the case fws to be dismissed under Order XVS, Rule 2. Even Rzile 3 itself provides that if the parties or any of them absent, the Court shall 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 ivcis 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 ivith law. 9. In view of the fact that fhe clainiants and fheir witnesses were absent on the date of hearing, I have no hesitation to hold ti-iat leamed, Tribunal has erred in dismissing the application preferred by the appellant tinder Order 9 Rule 9 of C.P.C. inasmuch as fhe said disinissal was under Order 17 Rule 2 of C.P.C. and not under Order 17 Rule 3(a)ofC.P.C. 10. In view of ftie aforesaid discussion, m the considered opinion of this Court, fhe appeal deserves to be allowed and is hereby allowed. The application preferred by the appeUant under Order 9 Rule 9 of C.P.C. is held to be maintaiaable. The inipugned order passed by fhe Court below is set aside and fhe matter is remitted back to the Tribunal to decide the application under Order 9 Rule 9 of C.P.C. afreshon its own merit in accordance wifh law. 11. Since fhe matter is very old, it is directed to decide the said application as early as possible preferably withiii a r'- ^•^•^ ^•^..'"'^ [te'l) ^// ^ period of 3 months from fhe date of receipt of a copy of this order. 12. The obsenrations, if any, made hereinabove, shall not be construed as niy opinion on inerit. 13. The record of the Tribunal be sent back forthwith. ^ ^ Sd/- N. K.Agarwal Judge