RAMKARAN Vs. RADHAMOHAN
LAWS(RAJ)-1952-7-10
HIGH COURT OF RAJASTHAN
Decided on July 27,1952

RAMKARAN Appellant
VERSUS
RADHAMOHAN Respondents


Referred Judgements :-

MATHURAPRASAD VS. RAMCHARANLAL [REFERRED TO]
SADARAM MARAR VS. DULAR [REFERRED TO]
BHAYANKARAM PICHAMMA VS. KAMISETTI SREERAMULU [REFERRED TO]
HARGOPAL VS. HARISH CHANDER [REFERRED TO]
UPPALAPATI VENKATARATNAM VS. UPPALAPATI APPARAO [REFERRED TO]
KAMMELA SOMASUNDARAMMA VS. KAMMELA SESHAGIRRAO ALIAS PROF. GIRI RAO [REFERRED TO]
RAMRATAN VS. SUGHAD SINGH [REFERRED TO]
RAFIQ AHMAD VS. MOHAMMAD SHAFI [REFERRED TO]
BROJENDRA NATH GANGULY VS. PROMATHA BHUSAN DEV [REFERRED TO]
BASALINGAPPA KUSHAPPA KUMBHAR VS. SHIDRAMAPPA IRAPPA SHIVANAGI [REFERRED TO]


JUDGEMENT

BAPNA, J. - (1.)THIS is a revision against the decision of the learned Additional District Judge, dated the 17th January, 1952.
(2.)THE petitioners filed a suit for declaration of title to certain movable property in the court of Civil Judge, Jaipur, and suit was fixed for hearing before the Additional Civil Judge on 14th March, 1951, on which date the plaintiffs were to lead their evidence. On that date the plaintiffs wanted an adjournment in order to enable them to produce their evidence and 18th April, 1951, was fixed for the purpose. On this date neither the witnesses for the plaintiffs appeared nor the plaintiffs themselves and the following order was recorded by the learned Additional Judge: - "the plaintiff and his Vakil are absent. THE defendant with his lawyer present. THE case was called several times and the court waited till 9-30 A. M. but the plaintiff has remained absent, nor has the plaintiff brought his witnesses or summoned them. He and his lawyer are absent. It is therefore ordered that the suit be dismissed with costs on account of the default of the plaintiff under Order 17, Rule 2 of the Civil Procedure Code. "
The plaintiffs filed an application for restoration of the suit on the 17th of May, 1951, and later on also preferred an appeal against the order of 18th April, 1951, to the District Judge. The learned Additional Civil Judge dismissed the application for restoration on the ground that the order of the 18th April, 1951, purported to be under Order 17, rule 3 of the Civil Procedure Code as mentioned in the Order. He also observed that as an appeal had already been filed and therefore the application for restoration was incompetent.

The plaintiffs filed an appeal against the order dismissing the application for restoration and the Additional District Judge rejected the appeal on the ground that he was not competent to reopen the question, as in the meanwhile the appeal preferred by the plaintiffs against the order of 18th April, 1951, had been decided by his predecessor on 15th October, 1951, by which the order of 18th April, 1951, was confirmed. He was opinion that in case the plaintiff felt aggrieved against that order his remedy was to approach the High Court against that order. The plaintiffs have filed this revision against the order dismissing their appeal in proceedings for restoration.

It was argued by learned counsel for the petitioners that the order of 18th April, 1951, should be deemed to have been passed under Order 17, rule 2 of the Code in spite of the fact that the learned Additional Civil Judge had given reference to Order 17, rule 3 of the Code in support of his order. It was urged that Order 17, rule 3 C. P. C. could only be applicable in case the party was present or if the non-compliance mentioned in the Rule is coupled with the absence of the party. The order passed by the court is not on merits. There is some difference of opinion as to whether O. 17, rule. 2 or Order 17, rule 3 was applicable in case of default of a party combined with non-performance of any act necessary for the progress of the suit for which time had been allowed by the court. The Madras view expressed in Prativadi Bhayankaram Pichamma vs. Kamisetti Sreeramulu and others (1) (A. I. R. 1918 Mad. 143 (2), F. B. ). seems to be that if the party makes default in appearance the order passed would be under Order 17, rule 2, irrespective of the fact that there was a further default by non-compliance of the act mentioned in rule 3 of Order 17 of the Code. There is, however a consensus of opinion among the High Courts in India that if there is a default in appearance of a party coupled with the default in compliance of the act referred to in the Rule the court will be justified in applying Order 17, rule 3 C. P. C. if there are materials on record on which to decide the suit forthwith. In case, there are no such materials the only order that could be passed would be under Order 17, rule 2 of the Code. 1. Basalingappa Kushappa Kumbhar & others vs. Shidramappa Irappa Shivanagi & another (2) (A. I. R. 1943 Bom. 321, FB. ). 2. Rafiq Ahmad & another vs. Mohammad Shafi & others (3) (A. I. R. 1949 All 423), 3. Brojendranath Ganguly vs. Promatha Bhusan Deo & others (4) (A. I. R. 1933 Cal. 412), 4. Hargopal vs. Harish Chander & antother (5) (A. I. R. 1919 Lahore, 419.) and 5. Ramratan vs. Sughad Singh (6) (A. I. R. 1952 M. B. 46 ).

In the present case, the order passed by the court on 18th April, 1951, has already been mentioned and it is clear that the court did not proceed to decide the suit on the merits. Reference need only be made to Order 20, rule 4 C. P. C. where it is provided that a judgment should contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. In the absence of compliance with the provisions of Order 20, rule 4 C. P. C. it can only be said that the court did not purport to decide the case on merits, although it is mentioned that it was proceeding under Order 17, rule 3 C. P. C. It may also be mentioned that in the present case no witness for the plaintiff had been examined and none for the defendant. There may be cases in which there may be material on record although oral evidence may not have been produced but in the present case the court has not referred to any evidence in its order of 18th April, 1951. We have no hesitation, therefore, in holding that although the court purported to take support for its order from the provisions of Order 17, rule 3 C. P. C. the order which it passed could only be deemed to have been passed under Order 17, Rule 2 of the Code. In view of the above finding, it is obvious that the only remedy which could be available to the plaintiffs was by an application for restoration under Order 9, rule 9 of the Code and an appeal by the plaintiffs was incompetent.

Learned counsel for the respondent drew our attention to the observation of the Madras High Court in -Uppalapati Venkataratnam vs. Uppalapati Apparao (7) (A. I. R. 1948 Mad. 80.) in which it is held in circumstances like the present the plaintiff has two remedies : (1) to appeal against the decree purported to have been passed under O. 17, Rule 3 C. P. C. and/or (2) to proceed under Order 9, Rule 9 C. P. C.

The observations in the cases are obiter as their Lordships were dealing with a revision against an order of the Sub-Judge dismissing an appeal against an order rejecting an application for restoration. Their Lordships relied on Kammela Somasundaramma vs. Kammela Seshagirrao alias Professor Giri Rao and others (8) (A. I. R. 1947 Mad. 378. ). That case no doubt was of an appeal against an order purported to have been passed under Order 17, Rule 3 C. P. C. when the plaintiff had made a default in appearance. The decision sought to be challenged purported to be a decision on merits and according to the views of the Bombay. Allahabad, Calcutta, Lahore and Madhya Bharat such a decision would be one under Order 17, rule 3 of the Code, and it is difficult to follow the reasoning of the Madras High Court that the order could be both under Order 17, rule 2 and Order 17, rule 3 of the Code of Civil Procedure. If a plaintiff's suit is dismissed under Order 17, rule 2 C. P. C. this would be a dismissal from which no appeal lies under the Code. The order cannot, therefore, be deemed to be both under Order 17, rule 2 and Order 17, rule 3 of the Code. With great respect, therefore, we are unable to follow the Madras view that in such cases both remedies would be available to a plaintiff.

Learned counsel for the respondent contended that when the trial court's order dated the 18th April, 1951, got merged in the appellate court order of 15th October, 1951, the plaintiffs were not entitled to reopen the order of 18th April, 1951, by a petition Order 9, rule 9 of the Code. Reliance was placed on Mathuraprasad vs. Ramcharanlal (1) (A. I. R. 1915 All) and Sadaram Marar vs. Dular Marar (2) (A. I. R. 1917 Nag. 26. ). Both these cases are however of ex parte decrees against defendants and the defendants had a remedy of an appeal as also of an application for setting aside an ex parte decision against them. These cases, therefore, are of no authority in a case like the present where the dismissal of a suit on default of appearance by a plaintiff can be remedied in only one way and that is by way of an application for restoration of the suit,

(3.)ACCORDING to the view taken by us, the order of the Additional Civil Judge would be deemed to have been passed under Order, 17 rule 2 C. P. C. and an appeal was not competent. As the appeal was incompetent, any order passed in appeal would be without jurisdiction and a nullity.
We, therefore, allow this revision, set aside the order of the Additional District Judge dated the 17th January, 1952, as also of the Additional Civil Judge dated the 15th September, 1951, and send the petition for restoration to the trial court for decision on merits. No order as to costs of this court as also of the court of the Additional District Judge in these proceedings.



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