Decided on December 06,1967

SAGAR BAI Appellant
BHAI RATILAL Respondents


- (1.) THIS revision under section 115 of the Civil Procedure Code is directed against an order under Order IX, rule 9 of the Code, dated 27th March 1967, passed by the 5th Civil Judge, Class II, Raipur, and involves a question of frequent occurrence.
(2.) THE undisputed facts are: THE suit was initially fixed for evidence on 25th April 1966, but as the Court was proceeding on leave, the hearing was adjourned to 6th July 1966. On 6th July 1966, neither the plaintiff nor his witnesses were present. THE Court, accordingly, passed the following order- "I, therefore, proceed to decide the suit forthwith and dismiss the suit of the plaintiff with costs under Order XVII, rule 3 of the Civil Procedure Code. Defendants are awarded costs of the suit. Decree be drawn up accordingly." THEreafter, a decree was drawn up stating that the suit had been dismissed "for want of prosecution". On 23rd July 1966, the plaintiff applied for restoration of the suit under Order IX, rule 9 of the Code, alleging that there was sufficient cause for his non-appearance. THE application was contested amongst others, on the ground that the application was not maintainable THE Court held that it had really proceeded under Order XVII, rule 2 and, therefore, restored the suit to file under Order IX, rule 9. The contention of the applicants-defendants that the Court having proceeded rightly or wrongly, under Order XVII, rule 3, the remedy of the non-applicant-plaintiff was by way of appeal against the decree and not under Order IX, rule 9, cannot be accepted on the short ground that the Court never really proceeded under Order XVII, rule 3. The requirements of Order XVII, rule 3, are clear. The correct legal position is stated in Mulla's Code of Civil Procedure 13th Edn., Vol. I, p. 897, thus: "Rule 2 applies to cases where the hearing is adjourned, no matter for what purpose, and the parties or any of them fail to appear at the adjourned hearing. The present rule is directed to a case where the hearing is adjourned at the instance of a party for some one or other of the purposes specified in the rule, and the party fails to perform the specified act or acts for which the adjournment was granted within the time allowed by the Court. In such a case, the rule says, "the Court may, notwithstanding such default, proceed to decide the suit forthwith." These words do not mean that the Court may dismiss the suit if the plaintiff is in default, or pass a decree against the defendant if the defendant is in default. What they mean is that the Court may further adjourn the hearing, or it may, without granting any further adjournment, proceed to try the suit and take such evidence as may be tendered by the parties and decide the suit on the merits." The law is-if there are no sufficient materials on record, the Court should proceed under rule 2, but, if there are sufficient materials, it should proceed to decide the suit on merits under rule 3. The balance of authority supports this view but learned counsel for the applicants tells me that the law is different, and invites my attention to Govardhan Badrilal v. Ganesh Balkrishna (1962 MPLJ 325) and Maruti Damaji Asthinkar v. Gangadhar Rao (1964 MPLJ 919 at p. 920).
(3.) THESE authorities, instead of supporting the learned counsel are really against him. In Govardhan Badrilal v. Ganesh Balkrishna, Naik J emphasised the distinction between a case where the Court proceeds under Order XVII, rule 3 and decide the case on merits followed by a decree and, another, where there is neither a decision on merits nor a decree passed in fact. His Lordship was dealing with a case where the Court had proceeded to decide the suit on merits, and, therefore, the observations at p. 328: "But, even so, the fact remains that, rightly or wrongly, the trial Court chose to exercise its jurisdiction under rule 3 of Order XVII of the Code of Civil Procedure, and the rights of the parties shall have to be regulated by what it actually did than by what it ought to have done." should be read in that context as otherwise the concluding part of the judgment at p. 329 would be unmeaning. Dixit C.J., in Maruti Damaji Ashtinkar v. Gangadharrao observed, "It is well settled that Order 17, rule 3 applies only if time is granted to a party for producing his evidence, or for causing the attendance of his witnesses, or for performing any other act necessary to the further progress of the suit and he fails to do at the adjourned hearing the act for which time was granted to him, and the Court can proceed to decide the suit forthwith. Rule 3 presupposes the appearance of the party at whose instance the case was adjourned but who is unable to give proper explanation for his omission to perform the specific act or acts for which the adjournment was granted at his instance. The expression "the Court may, notwithstanding such default, proceed to decide the suit forthwith" used in rule 3 implies that there must be material on record to enable the Court to exercise its proper discretion by deciding the case on merits, and an order merely "dismissing the suit" because of the default of the party in performing the specific act or acts for which he had obtained time is not any decision disposing of the suit on merits." and after stating the law, my Lord the Chief Justice proceeded to indicate that in such a case the proper course to follow would be to substitute and order dismissing the suit under Order IX, rule 8, read with Order XVII, rule 2, for the erroneous order of the Court under Order XVII, rule 3 (see at page 922) Maruti's case, and further directed the original Court to entertain any application under Order IX, rule 9, if necessary, after condonation of delay in making of the application, by applying section 5 of the Limitation Act. Applying these principles to the facts of the present case, it is manifest that the Court never really proceeded under Order XVII, rule 3 because it never decided the suit on merits. There is no judgment on record dismissing the suit on merits. On the contrary, the decree states that the suit was dismissed "for want of prosecution". It follows, as a necessary corollary, that the Court had power to "rectify" the mistake it had previously committed in mentioning Order XVII, rule 3, while dismissing the suit and it also had the necessary jurisdiction to entertain and decide the application made under Order IX, rule 9 of the Code.;

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