Decided on July 04,1960

DEVI SINGH Respondents


- (1.)THIS is an appeal against the order of the learned Commissioner Udaipur dated 1. 9. 59 whereby he, accepting an appeal in a case under sec. 183 of the Rajasthan Tenancy Act against the order of the Assistant Collector Rajsamand dated 31. 12. 57,ordered the case to be remanded for letting the opposite party have an opportunity of producing his evidence.
(2.)WE have heard the learned counsel for the parties and examined the record also. The facts of the case are not at all material for the decision of the present appeal and so they are not reproduced here. Suffice it would be to say that on the closing of the evidence of the plaintiff-appellant on 6. 12. 57, the case was adjourned in due course and according to the procedure prescribed for the recording of the evidence of the defendant-respondents to 21. 12. 57. On 21. 12. 57 the counsel for the parties were present. But the learned counsel for the defendant respondents pleaded no instructions and so the learned Assistant Collector ordered the closure of their evidence and adjourned the case for hearing the arguments to 31. 12. 57. On 31. 12. 57, he decreed the suit under O. 17 R. 3 C. P. C. An appeal was preferred against the order to the learned Commissioner Udaipur, wherein it was specifically pleaded that the learned Assistant Collector was not justified in decreeing the suit under O. 17 R. 3 CPC. The learned Commissioner, without deciding whether the decree bad been rightly passed under O. 17 R. 3 CPC. or not, allowed the appeal and remanded the case for letting the defendant respondents have a further opportunity of producing their evidence. The observations of the learned Commissioner are that it was clear from the order dated 6. 12. 57 that the defendant-respondents had been directed by the court to produce their evidence on that date; and that it was possible that there had been some mis-under-standing and the defendant-respondents, had therefore, failed to produce their evidence. It was further observed that in any case the learned trial court should have, for the sake of justice allowed the defendant-respondents another opportunity to produce their evidence, and should not have closed the evidence all of a sudden on 21. 12. 57. No costs were allowed to the plaintiff-appellant.
We have got no hesitation in observing that the learned Commissioner Udaipur has completely failed to appreciate the difference between the provisions of O. 17 R. 2 and O. 17 R. 3 CPC, and has decided to remand the appeal preferred before him without deciding this point specifically raised by the appellant (defendant-respondents) before him. In this connection we would like to observe that under O. 15 R. 3 (ii)CPC. the court is bound to grant time to the parties to produce their evidence. Such grant of time is a normal procedure prescribed for the trial of suits and it has got nothing to do with the grant of time contemplated by O. 17 Rule 3 C. P. C. The grant of time that is made under R. 3 of O. 17 is always on the application of the parties, whether oral or written, and it is only when a party to whom time has been grated as envisaged by this Rule fails to produce his evidence that the court can proceed to decide the suit forthwith under the provisions of this Rule notwithstanding such default having been made by the party. Unless a time has been granted to a party in the manner envisaged by R. 3, a suit cannot be decided forthwith as has been done by the learned Assistant Collector notwithstanding such default. In cases of normal adjournment envisaged by Order 15 R. 3 (2), the order can be passed only under Order 17 R. 2 disposing of the suit in one of the modes directed in that behalf by Order 9 or making such other orders as the court may think fit. In this connection we may refer to Indian Law Reports 1953 HI (Rajasthan Series) 1038, Moolraj vs. Narsingh Das, where it has been held that after the framing of the issues the court is bound to give time under Order 15 R. 3 (2) to the parties to produce their evidence; and that such grant of time under Order 15 R. 3 (2) was not contemplated under Order 17 R. 3. In the present case, it is quite clear from the record that uptil 6. 12. 57 the evidence of the appellant herself was going on and it was only after that that the respondents were to produce their evidence. This was in the normal course as envisaged by Order 15 R. 3 (2 ). Clearly, therefore, only order that could be passed by the learned trial court in the case when the defendant-respondents had failed to produce their evidence could be under Order 17 R. 2 and not R. 3, thereof. The decree passed by the learned trial court deserved, therefore, to be set aside and the case to be remanded back. Of course, the appellant should have been allowed costs which the learned Commissioner has not allowed. We, therefore, accept this appeal only to the extent that the appellant would be allowed a cost of Rs. 15/- before letting the respondents have an opportunity of producing their evidence and confirm the rest of the orders passed by the learned Commissioner although for reasons different as discussed above. .


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