Decided on December 17,1968



- (1.) The plaintiff is the revision petitioner. The suit was for recovery of possession with damages for use and occupation. Two suits were filed by the plaintiff for the same relief and they were O.S. Nos. 27 and 32 of 1957. The title deeds relied on by the plaintiff are the same in both the suits and they were filed in O.S. 32/57. Both the suits were stayed under Act 1/57 and the stay was vacated only after the coming into force of Act 1/64. The nature of the suit being the same, the plaintiff applied for joint trial; but the defendants objected and the objection was upheld and O.S. 27/57 was posted for production of document to 29 6 1964. As the prayer for joint trial was not granted the plaintiff had to obtain attested copies of the documents from the other suit and produce them in O.S. 27 of 1957. Certified copies could not be obtained in time and so, on 29-6-1964 the plaintiff moved for an adjournment. That application was allowed and the case was posted to 9-7-1964. On that date also he was not able to get the attested copies of documents and so he was compelled to apply for another adjournment; but that application was rejected. Immediately, the counsel stated that he had no instructions and the suit was accordingly dismissed. On 25-7-1964 the plaintiff applied to set aside the order of dismissal and restore the suit to file. By that time copies of documents were also available. The learned Munsiff has held that the dismissal of the suit is one falling under O.17 R.3 CPC. and so the remedy of the aggrieved party is by way of an appeal only, and accordingly the petition was dismissed. The order has been confirmed in C.M. Appeal by the Subordinate Judge of Kasargode.
(2.) The only question, therefore, that arises for consideration is whether the disposal of the suit on 9-7-1964 is a disposal coming under O.17 R.2 or R.3 CPC. O.17 R. 3 CPC. reads:- "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, proceed to decide the suit forthwith." In the present case, no doubt, the suit was adjourned at the instance of the plaintiff so as to enable him to produce in court the documents of title on which he had relied and which were necessary for a satisfactory decision of the suit, and he was not in a position to produce the documents on 9-7-1964, to which date the suit had stood posted for the purpose It was, therefore, open to the court to decide the suit, notwithstanding the default on the part of the plaintiff. Two phases are contemplated under O.17 R.3. The first is default on the part of the plaintiff to perform the act necessary for the further progress of the suit; and the second is, the court proceeding with the suit, notwithstanding the default. In the present case the first of these two contingencies, viz, the default is alone present. The court is not seen to have entered the second stage and decided the suit, notwithstanding the default. It is incumbent on the part of the court to decide the suit with the materials available before it, rather than dismissing it by a one word judgment. The suit should be disposed of on the merits with the materials available. On this matter a Single Bench of the Jammu and Kashmir High Court in Sonaullah v. Sultan Jan (AIR 1952 J.&K. 21) has held:- "The words "the court may, notwithstanding such default, proceed to decide the suit forthwith" in O.17 R.3 suggest that the case must be one where in spite of the default of a party it must have been possible for the court to come to a decision of the Sait. The words "decide the suit" cannot be taken as tantamount to dismissing the suit for default. It can only mean "decide the suit on merits on the material available before the court". What O.17 R 3 contemplates is not dismissal for default for the latches of one party or the other but a decision on merits of the case pending before it on the material available to the court".
(3.) In the present case, the dismissal was for default and that is patent from the order of the lower court itself. The learned Munsiff observed:- 'In the present case, it cannot be said that plaintiff was not present in court on 9-7-1964. The judgment shows that plaintiff was present in court but was not prepared to proceed with the case. As O.17 R.2 applies only in cases in which the parties fail to appear, it is not applicable to the present case." This position is not correct. "Where the plaintiff, though physically present in court refuses to take part in the proceedings after the dismissal of his application for adjournment, as represented by his counsel, he cannot be said to have been present there as plaintiff partaking in the proceedings. His physical presence in the court cannot be taken cognizance of, and the only conclusion that one can come to is that he did not appear at the hearing. The case, therefore, comes under R.2 and not R.3 of O.17." (Vide Natesa Thevar v. Vairavan Servai AIR 1955 Mad. 258 ). On 9-7-1964 when the application for adjournment moved by the plaintiff was dismissed, the plaintiff's counsel represented to the court that he has no instructions. He thus withdrew from the case. When a pleader refuses to take part in the trial on the ground that he has no instructions and then withdraws from the case either after or without making an application for adjournment, all further proceedings against the defendant become ex parte. This is the view taken by a Division Bench of the Madras High Court in Kaliappa Mudaliar v. Kumarasami Mudali ( AIR 1926 Mad. 971 ). The learned Judges observed in that case:- "When a party's pleader reports no instructions the dismissal of the suit amounts to a decree ex parte for default of appearance under O.17 R.2, although the party is personally present in court. The appearance contemplated by the code must be, not as a man, but as a party and with the intention of acting as such party in that suit and therefore the mere fact that the party was present in court when his pleader reported no instructions would not amount to an appearance." On the above authority it must be held that the plaintiff though was physically present in court was not in fact, present as a party in the suit intending to participate in the proceedings. The dismissal of the suit can fall only under O.17 R.2 and in that case the application for restoration filed by the plaintiff was quite in order.;

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