PLJ 1990 Lahore 497 (DB)
Present: gul zarin kiani and KHALiD paul khawaja, JJ Mst. ARIFA AMJAD and 2 others-Appellants
versus
ABBAS TAYYAB DAR and another-Respondents
R.F.A. No. 167 of 1989, accepted on 5.6.1990
(i) Civil Procedure Code, 1908 (V of 1908)--
—O. XVII Rr. 2&3~Partition—Suit for—Absence of plaintiffs evidence and" their counsel on adjourned date of hearing—Dismissal of suit—Challenge to—In case of mere dismissal in default of appearance, remedy lies for restoration through an application to trial court—Necessary conditions for applicability of Rule 3 were clearly wanting—Case fell for disposal under Rule 2 of Order XVII of CPC-Impugned order closing evidence and dismissing suit for want of proof in absence of plaintiffs could not be made-Held: There is no bar in law to treat impugned order to have been made under Rufe 2 of Order XVII and it is a case of dismissal in default though trial court proceeded dffierentry-- Suit ordered to be restored. " [PpJ04,505,50'7]C&D
PLD 1981 SC 474 re/,
(ii) Civil Procedure Code, 1908 (V of 1908)-
—O. XVII Rr. 2&3-Partition~Suit for-Absence of Plaintiffs evidence and their counsel on adjourned dale—Dismissal of suit—Challenge to—Whether impugned order is covered by Rule 3 or 2 of Order XVII CPC—Question of- For application of Rule 3, it is necessary that defaulting party must be present or deemed to be present before court, that adjournment must have been granted to party at his request, that party defaulted in doing act for which he took time, and that there must be some material on record for decision of case-Held: Mere default in appearance at adjourned date of hearing fell
within ambit of Order XVII Rule 2 of CPC. [Pp.500&504]A&B
AIR 1924 Lahore 545 (DB). AIR 1964 Rajesthan 147. AIR 1976 Madhya Pradesh 21 (FB), PLD 1963 (WP) Karachi 356, PLD 1967 Dacca 633. PLD 1970 Quella 79. PLD 1975 Lahore 385, AIR 1976 Allahabad 290 and AIR 1977
Madhya Pradesh 222 ref.
Mi: Jariullah Ktuin, Advocate for Appellants. Mian Iqbal Hussoin, Advocate for Respondents. Dates of hearing: 4 & 5.6.1990.
judgment
Gul Zarin Kiani, J.—This is a first appeal by the plaintiffs, against an order of the trial Court dated 7.11.1989, closing their evidence, and, dismissing the partition suit brought by them for want of proof.
Briefly stated, the factual matrix giving rise to this appeal are that, on 4.7.1988, the plaintiffs instituted a civil suit against defendants for separate possession through partition of their share of property jointly held between them. It was stated in the plaint that a moiety in the property known as 33-B Model Town, Lahore belonged to late Sher Mohammad Dar. He expired on 24.6.1980. He had three sons, namely, Abbas Tayyab Dar, Zafar Iqbal Dar, and, Mohammad Idrees Dar. First two are defendants 1 and 2 to the partition suit, whereas the third, namely, Mohammad Idrees Dar pre-dcceased his father and was survived by three daughters who arc his true legal representatives and plaintiffs in the partition suit. They claimed I/3rd share in the joint property, which their father, if alive at the time of the demise of his father, would have inherited from him. Defendants resisted lac suit; denied the joint character of the property as also the correctness of the shares claimed in it by the plaintiffs. Proceedings taken for appointment of a local commission and issue of temporary injunction aside, necessary issues requiring determination were settled by the trial Court on 3.9.1988 and the dale fixed for plaintiffs evidence on 22.1.1.1988. 22.11.1988 was a closed day. Consequently, suit came up before the trial Court on succeeding day i.e. 23.11.1988 and was adjourned to 26.1.1989, 30.1.1989 and 1.3.1989 for sorting out certain ancillary matters. On 1.3.1989, trial Court fixed the case for the plaintiffs' evidence on 30.4.1989. Meanwhile, suit was transferred to the file of another Judge by administrative order of the District Judge and parties were directed to appear before the transferee Court on the date already fixed in the case. On 30.4.1989, the transferee Court recorded in the order sheet that suit be registered; parties were not present and then adjourned the suit to 24.6.1989 for plaintiffs' evidence. Obviously, the date for evidence of the plaintiffs was given in absence of the parties. On the adjourned date, neither the plaintiffs nor their counsel entered appearance. The Clerk to the plaintiffs' counsel whose presence %vas marked in the order sheet had informed the trial Court that plaintiff No.l was in family way and except for her statement, no other evidence shall be produced. On the same date, counsel for the defendants who was present in Court, complained of jaundice and requested for adjournment. Thus, say, upon the joint request of the clerk to the counsel for the plaintiffs and the defendants' Advocate, suit was adjourned to 10.9.1989 for recording of statement of plaintiff No.l. Rest of the evidence was closed by the trial Court. On 10.9.1989, as the trial Judge was on leave, suit was adjourned to 7.11.1989 for the purpose already noted in the order of the previous date. On the adjourned date, neither the plaintiffs nor their counsel representing them entered appearance in Court. Defendants were represented by their Advocate. At 12.40 p.m, on 7.11.1989, the suit was dismissed , by the trial Court for want of proof by the plaintiffs. It is worthy of note that no rule of procedure was cited in the order which empowered the Court to make this order. As the order passed by the trial Court was an appealable decree, plaintiffs, preferred an appeal. It was admitted to hearing on 25.11.1989.
On behalf of the appellants, it is argued that upon the facts and circumstances existing on 7.11.1989, neither rule 3 in Order XVII nor rule 1 as amended by Lahore High Court could have applied and upon the correct reading of the record and the impugned order, it squarely fell within the ambit of rule 2 of Order XVII read with order IX Civil P.C; that the order sheet dated 7.11.1989 was not correctly prepared by the trial Court, inasmuch as plaintiff No.l and the witnesses summoned by her through Court were present outside the Court room and wailed for call which was never made and it was erroneously recorded in the order sheet that on calls made, neither the plaintiffs nor their counsel had appeared; that the plaintiffs had submitted a complaint in writing against the conduct of the trial Judge to Hon'ble, the Chief Justice of Lahore High Court and their counsel Mian Minat Ullah Advocate who represented them in the trial Court swore an affidavit to support their allegation; that on the adjourned date, a large body of cases were fixed before the trial Court, some for miscellaneous purposes, some for taking evidence and others for hearing arguments etc. It was winter time and the Court timings were from 9 a.m. to 4 p.m. Therefore, the trial Court was obliged to wait till the time for its rising; that the order closing the evidence was punitive in character and extremely harsh. By it, the plaintiffs were made to lose valuable property for not much of their fault.
In reply, respondents' learned counsel submitted that the impugned order was correctly made and upon the default committed by the plaintiffs in failing to appear and producing the evidence, the trial Court had no option but to dismiss the suit for want of merits as the plaintiffs themselves gave no evidence to establish their case. However, learned counsel for the respondents frankly conceded that to a case of double default viz non-appearance in Court and failing to produce evidence or performing any other act necessary for further progress of the suit, rule 3, in Order XVII Civil P.C. could not have been applied.
First question that we shall consider is as to which rule in Order XVII, Civil P.C. shall apply and govern the impugned order; whether it shall be covered by rule 3 or upon its close analysis ought to fall within the purview of rule 2 of Order XVII Civil P.C. In case it fell under rule 2 of Order XVII, what were the remedies for the aggrieved plaintiffs for setting aside of that order. To answer the first question; we shall have to advert to the Scheme of Order XVII Civil P.C. That order is headed "adjournments". As originally enacted, it consisted of three rules only. Two more rules were added to Order XVII by Ordinance XII of 1972. Only first three rules are relevant for our present purpose. Rule I gave power to the Court to adjourn the hearing of the suit if sufficient cause was shown for it to its satisfaction. There is no doubt that adjournment is in the discretion of the Court. Succeeding two rules applied to adjourned date of hearing of the suit. To this extent, there is similarity between them. Order IX -Civil P.C. provided for consequences arising out of non-appearance of all or any of the ] arties to the suit on the first date of hearing. To the adjourned dates of hearing, undisputedly, Order XVII was attracted. Rule 2 stated that where on ihc adjourned date of hearing, parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf in Order IX or make such other order as it thinks fit. Then follows rule 3. It deals with an altogether different situation. It is headed "the Court may proceed notwithstanding either party fails to produce evidence etc." It 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".
Having're-produced the relevant provisions of Order XVII Civil P.C, above, we shall advert to rules 2 and 3 to discover about their application. Distinction in the phraseology employed in rules 2 and 3 appears to be marked. It has been subject matter of discussion in numerous judgments of the superior Courts found in law reports. However, judicial consensus leans in favour of the view that necessary conditions for the applicability of rule 3 are:- (i) time must have been granted to the party at his instance; (ii) the time must have been granted to the party to do one or other of the three things mentioned in the rule viz to produce evidence or to cause .^tendance of witnesses or to perform any other act necessary for the progress of the suit; (iii) default must have been committed by the party in doing the act for which the time and adjournment had been granted to it, and, (iv) the Court must decide the suit forthwith which means a decision within a reasonable time under the circumstances. Additionally, some decisions that provisions in rule 3 being stringent and penal in character shodtt not be applied unless the facts do not admit application of any other rule of the Code and also that for its proper application, sufficient material must be jvail-iMe on record for giving a proper decision on merits which do not include a nummary decision. There is no doubt that provisions in Order XVII, rule 3 are permissive and not mandatory. However, there is some dispute between the Courts on the application of rule 3 in case of a double default viz non-appearance in Court and failing to take necessary steps for which the adjournment was granted by the Court. In Jhanda Singh and others versus Sadiq Mohammad and others — A.I.R 1924 Lahore 545 (D.B.), Gopi Kisan versus Ramu and another — A.I.R. 1964 Rajasthan 147 and Smt. Shantabai versus Chokhelal— A.I.R, 1976 Madhya Pradesh 21 (F.B.), it was held that it is open to the Court to proceed under Order XVII, rule 3 even in absence of a party where the conditions laid down in the said rule are fulfilled and it appears just and proper to do so. In the above three decisions, order XVII, rule 3 was applied to the case of double default viz default in appearance and failing to perform the necessary conditions for which the adjournment was allowed by the'Court. In the first case cited from the Lahore High Court which dealt with double default for application of Order XVII, rule 3, entire evidence in the case had been recorded and parties had closed their respective cases and a date for hearing of arguments had been fixed on which one of the party defaulted in appearance and in those circumstances it was held that Order XVII. rule 3 could be applied for giving a decision on merits of the case. In the other two cases from the Post Indian jurisdiction, it was expressly found that rule 3 of order XVII was applicable to a case of double default even if there was no material available on record for giving a decision on merits. In Abdul Shakoor versus Abdul Rasool reporled in P.L~.D. 1963 (W.P.) Karachi 356, a different view on this point was expressed. It was held that for application of the procedure laid , down in rule 3 to a case, there must be the presence of both the elements, namely, (1) the adjournment must have been at the instance of a party, and, (2); there must be material on the record for the Court to proceed to decide the suit. It was further held that the presence ofene without the other does not justify application of rule, 3. It was also observed that even in the case where a special adjournment is granted by the Court and party fails to appear in person and his pleader reports no instruction, it would be a cas<j of double default in so far as there is default of appearance and the case woulithen fall under Order XVII, rule 2 of the Code of Civil Procedure. In the above-case, Order XVII rule 3 was not applied, apart from other things, to a case of double default. In Muhammad Manikuddin versus Samiran Bibi and others- P.LllX 1967 Dacca 633 (at 638) after referring to rules 2 and 3 of Order XVII, the Court qbserved:-
"As is clear. Rule 3 is, applicable only to cases where a party to whom time has been granted on his own application to do some specified act necessary lor hire to take if he is to prosecute his case fails to take that step. In all other cases ©f adjournment, for whatever purpose that may be, the provision of Rule 2 $hall apply. Rule 3 is really in the nature of an exception to the general provision embodied in the next preceding Rule, i.e. Rule 2, and authorises the Court to proceed to a decision on merits in spite of default if there are on record materials to warrant such a decision. As Rankin, .C.J. in the case of Krishta Kishore Bose v. Pancharam Maity (1) rujj observed:-
"It is quite true that in the order as recorded it appears that the adjournment was made on the application of both parties. It is quite true that there is that notice that parties would get no further adjournment in the words "parties must come ready on that day". Still I do not think that that is what is contemplated by the terms of Rule 3. Rule 2 begins by "Where, on any day to which the hearing of the suit is adjourned", (it does not say at whose instance it is adjourned) "the parties or any of them fail to appear." Rule 3 says "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". It seems to me that default of appearance in a case of general adjournment before hearing is within Rule 2 and that rule 3 (sic) is directed to a case where a party is definitely given time in order that he may take a certain step which it is necessary for him to take if he is to prosecute his case, and fails to take that step."
It will thus appear that Rule 3 is clearly inapplicable to the instant case in that there was no adjournment at the instance of either party to enable it to take any step necessary for the purpose of prosecuting its case. In my opinion, it cannot be said to come within the ambit of Rule 2 either inasmuch as there was really no adjournment of the hearing of the suit at all. It is true that in the order dated 31.12.58, already cited above, the learned Munsif used the word "adjournment" but that appears to have' been done rather loosely instead of the proper word "fixed" in that by the order dated 22.12.58 the suit had in express terms been set down on 30.12.58 for "fixing" the dale of pre-emplory hearing. Again even assuming that there was adjournment of hearing though, in my opinion, it was not a case of such adjournment at all, that can only be regarded as a general adjournment coming within the purview of Order XVII, rule 2, and in that case also, it is the provision of rule 3 of Order IX that would be applicable in the circumstances of the instant case. It follows that in any view of the matter the suit could not be proceeded with under the provision of Order XVII, rule 3, even if there were legal materials on record to enable the Court to make a decision on merit. It could not be dealt with under Order IX, rule 6 either, in that the most essential condition postulated therein, i.e. appearance of the plaintiff, was wanting. The only provision that could therefore, apply was rule 3 or Order IX and as such the appropriate order to make was one of dismissal for default."
In Wadera Dalel Khan and 7 others versus Province of West Pakistan and 6 others— P.L.D. 1970 Quetta 79, it was observed:-
"Admittedly none of the plaintiffs was present when the suit, was ft dismissed by the trial judge and there was no material on the record for ' him to give a decision on merits. The evidence was yet to be produced by the plaintiffs. The Court could only proceed under Order XVII, rule 2, C.P.C. in such circumstances. Either the suit could bg adjourned or action could be taken under Order IX, C.P.C. The Court could dismiss the suit on merits only if some evidence of the plaintiffs had been recorded and in his view that evidence was not sufficient enough to sohstauUatc their claim. But stringent action under Order XVII, rule 3, GP-C^ without there being any documentary or oral evidence on record, wa& not available to the Court under the law. Distinction has been drawn between the two rules by a Full Bench of Bombay High Court reported as Basalingappa Kitshappa Kumbhar and others v. Shudranappa Irappa Shivanagf and another (1) and our above view is in accord with the decision of the Full Bench. •
6. As we find thai the order passed by the trial Court is not on merits, mere mentioning by the Court that the suit is dismissed under Order XVII, rule 3, C.P.C. would not bring the order under that rule. It was so held in Raja Singh v. Manna Singh and others (1)."
In the later part of the Judgment, the cour) observed:—
"It is desirable that litigants should get decision on merits in their cause. If the plaintiffs fail to comply with the order of the Court repeatedly then an action can be taken against them under the relevant provision of law. We should make it clear that extreme measures should only be taken if the Court comes to the conclusion that the plaintiffs by their conduct had made it impossible for the Court to proceed with the trial of the suit and the continuation of the proceedings was only intended to cause harassment to the defendants."
From the above extracts, it is evident that Order XVII, rule 3 was applied and suit dismissed by the trial Court but the view by the trial Court was not upheld by the High Court. Somewhat similar views were expressed by the High Court on the necessary conditions for the application of rule 3 of Order XVII in Lai versus Ghulam Muhammad and another — P.L.D 1975 Lahore 385. On the question whether rule 3 presupposes actual or deemed presence of the parties before the Court, a Full Bench of the Allahabad High Court in M.S. Klialsa versus Chiranji Lai and others —A.I.R 1976 Allahabad 290 observed lhat rule 3 applies when a party is present or is deemed to be present and has defaulted in doing the acts mentioned in rule 3. Similarly, in Rama Rao and others versus Shantibal and others- A.I.R 1977 Madhya Pradesh 222, a Full Bench of Madhya Pradesh High Court of five Judges by 4:1 (S.M.R. Raina, J., disagreeing) overruling the earlier Full Bench decision of their Court in the case of Mst. Shantabai, after survey of conspectus of the authorities of various High Courts, in para 9 of the judgment observed thus:-
"The plain and unambiguous, language of the two provisions; the deliberate departure made in the phraseology of the two Rules, the undisputed need to construe R.3 strictly; the consequences which necessarily follow as a result of the construction made and the heading of the two Rules, are factors which lead us without any hesitation to the conclusion that R.2 applies to all cases of default in appearance of all or any of the parties with the result that R.3 does not apply to any of those cases. This conclusion also enables the defaulting party to have the order made under O.9, C.P.C. set aside in the manner provided for that purpose in the Code by showing that there was valid reason for default in appearance on the date fixed. This is done in the manner prescribed by the Code. We also think that the expression "such other order as it thinks fit" used in R.2 permits disposal of the suit and not a decision thereof on merits contemplated by R.3, in a mode other than that provided in O.9, e.g., by an order of adjournment. A contrary conclusion would resufa. in several needless difficulties. In the first place, that would permit an order of the type contemplated by R.3 even iit the case of a default in appearance of any of the parties which is a construction not acceptable to us'for the reasons already given. That apart, it would permit the making of an order contemplated by R.3 withft* the ambit of R.2 itself so that such a construction would render R.3 superfluous. It is settled that unless it is unavoidable, a construction which renders a provision superfluous must be rejected. All these reasons impel us lo take the view that the expression "or make such other order as it thinks fit" used in R.2 docs not include within its ambit a decision falling within the ambit of R3. As for R.3, it follows that this Rule presupposes the presence of all parties and then the failure of the party at whose instance and for whose benefit the hearing was adjourned on the previous date to perform the act necessary to the further progress of the suit. It is only to this class of cases that R.3 applies and it has no application to cases falling within the ambit of R.2. In our opinion, whenever such a question arises, it has first to be seen whether R.2 applies to the facts of a case since on R.2 being attracted, the operation of R.3 would be automatically excluded. It is only when there is no default in appearance of all or any of the parties that the question of applying R.3 would arise to the facts of a case, provided the requirements laid down in R.3 are fulfilled."
Therefore, in addition to the conditions already mentioned above for the application of rule 3 of Order XVII, it is necessary that the defaulting party must be present or deemed to be present before the Court. In our view, the views expressed by the Full Bench of Madhya Pradesh in the case ofRgma Rao (Supra) correctly summed up the law and enunciated it correctly- with which we whole heartedly agreed and observe that for the application of rule 3, the conditions given below must co-exist; (i) adjournment must have been granted to the party at his request; (ii) it must have been granted to it for the purposes mentioned in the rule; (iii) the party who has taken the time defaulted in doing the act for which he took the time from the Court; (iv) the party must be present or deemed to be present before the Court; (v) that there must be some material on record for decision of the case on merits and lastly, that the Court must decide the suit forthwith that is within a reasonable time. In our view, mere default in appearance without more at the adjourned hearing fell within the ambit of rule 2 of Order XVII, Rule 3 catered for an altogether different situation. As said above, it presupposed the presence of the parties and failing to perform the necessary acts mentioned in the rule by a defaulting party. Not only the above two rules attract to different sets of situations but the remedies provided against the orders passed under these rules are also different. In case of a mere dismissal in default of appearance, there is a remedy for restoration in" an application for this purpose addressed to the trial Court. Conversely, if an order has been passed under Order XVII, rule 3 Civil Procedure Code, an appeal }$es against it to the higher Court. When we look at the records, keeping in view the distinction in rules 2 and 3, we feel no hesitation to say that necessary conditions for the applicability of rule 3 in the case before us were clearly wanting. Adjournment in the suit was not at the request of the defaulting party but was by the order of the Court itself. Therefore, the very first condition for the applicability of rule 3 was conspicuous by its absence. Furthermore, according to the trial Judge, the plaintiffs had defaulted to appear and failed to produce evidence. Therefore, the second important condition for the applicability of rule 3 that the parties must be present or deemed to be present was also non-existent. Similarly, there was no material on record to assist decision on merits by the trial Court. In absence of the plaintiffs, drastic provisions in rule 3 could not have been invoked against them to order an outright dismissal of a partition suit which involved rights to valuable property. It may be of some advantage to observe here that even learned counsel for the respondents failed to support the impugned order on the score that it could not have been passed under rule 3 of Order XVII. In his view and we share this view, the case fell for disposal under rule 2 of Order XVII read with Order IX Civil. P.C. Either the suit could be dismissed in default of appearance under Order IX rule 8 or the Court could make such other order as it thought fit which also included an order for further adjournment of the case. It had the discretion to act both ways and was not bound to' order dismissal in default of appearance Therefore, there is no doubt that upon proper reading of record and application of correct legal principles, impugned order closing evidence and dismissing the suit for want of proof in absence of the plaintiffs could not be made. Only proper and legal order which the trial Court could make was dismissal of the suit in accordance with the modes prescribed in Order IX Civil P.C. If this be so and we think it is so, only rule 2 applied which gave power to the Court to dismiss the suit in default in case plaintiff or their counsel did not appear when the suit was called on for hearing and the defendants were present before the Court. As we have already said, both the learned counsel agreed that the proper order in the case would have been the dismissal of the suit in default of appearance and not its dismissal on merits for want of proof. There is no bar for us in law to treat the impugned order to have been made under rule 2 of order XVII and hold it as a case of dismissal for default in appearance, though the trial Court had proceeded differently. Next question confronting us is about the remedy and the relief that could be granted to the plaintiffs. There is also a related question, whether the restoration should be ordered by the High Court in appeal or the matter should be left to the trial Court to be dealt with on an application under Order IX rule 8, Civil P.C. Raina, j.. in his dissenting opinion in the Full Bench case of Rama Rao, dealt with this point as stated below:-
"Beforc I conclude the consideration of this question, I may refer to another point on which some stress has been laid by my learned brother Verma, J. for coming to the conclusion that the Court has no jurisdiction to proceed under R.3 of Order XVII in the absence of the defaulting party. It has been said that if R.3 of Order XVII is to be construed so as to include within its ambit cases of default in appearance, the defaulting party would have to be given an opportunity, for the first time, by the Appellate Court to show that his default can be condoned for valid reasons and this would be stretching the powers of the Appellate Court requiring it to adopt a procedure for which there is no sanction in the Code of Civil Procedure. To my mind no question of stretching the powers of the Appellate Court at all arises because it is always open to the Court to rectify errors of the trial Court in the exercise of its ordinary appellate jurisdiction. If, in appeal, the appellant is able to show prima facie on affidavit or otherwise that there was good cause for his absence and that, if he had appeared, he would have, produced his evidence or performed other acts for which he had secured the adjournment, the Appellate Court can convert the order under R.3 into an order under r.2 of Order XVII and leave it to the party to have the decision against him set aside by an application in the trial Court under O.IX. Such a course was adopted by this Court in a number of cases. In Mamti v. Gangadhar Rao 1964 Jab LJ 559 Dixit, C.J. held that where the trial Court erroneously dismissed a suit under R.3 of OXVQ when it should have dismissed it under R.2, the proper order to pass in an appeal is to substitute the order of the trial Court by an order dismissing the suit under R.2 of Order XVII. A similar view was taken by a Division Bench in Madanlal v. Jai Narayan (AIR 1972 Madh Pra 8) and also by the Full Bench in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) (supra). To say that such a course is not appropriate or not permissible would lead to grave injustice. Where the Court expressly proceeds under R.3 of Order XVII, the" party aggrieved would ordinarily file an appeal and in such a case it would be proper exercise of jurisdiction by the 'Appellate Court to give suitable relief to the appellant by substituting the order under R.3 by an order under R.2 of Order XVII if it finds that the trial Court had wrongly proceeded under R.3."
It is true that when a suit is dismissed in default of appearance by the trial Court, remedy for the aggrieved party is to apply for its restoration by an application under Order IX Civil P.C. That is the ordinary rule. But, in the existing circumstances, the plaintiffs could not take re-course to the above legal remedy and run the risk of dismissal of their application for restoration. From the impugned order, it did not look to be a simple case of dismissal of the suit for default in appearance by the plaintiffs but it appeared practically to be a dismissal of the suit on merits for want of proof by the plaintiffs and remedy against such an order lay in an appeal to the higher forum. It is well settled that the law relating to remedies must not only be certain and unambiguous but clear also to the litigants. Otherwise, they are put to great hardship and suffer injustice. In the case before us, if the plaintiffs had gone to the trial Court for restoration of the suit under order IX, they could have been met with an objection that as the decision was recorded under rule 3 of Order XVII, their remedy was by way of an appeal only. We think such an objection could have been held valid and had the support from the judgment of the Supreme Court in Shahid Hussain versus Lahore Municipal Corporation—P.L.D 1981 S.C 474. Therefore, the only remedy which the plaintiffs could avail of was to file an appeal against the "decree" which the decision of the trial Court undoubtedly amounted to. Power of the High Court as also its jurisdiction to set aside the impugned order in appeal treating it to have been made under Order XVII rule 2 were not questioned by the respondents and we think rightly because Section 107 read with the relevant provisions in the Schedule 1 of the Civil Procedure Code clearly provided that generally the appellate Court has all the powers and duties of the trial Court. Plaintiffs had questioned the correctness of the Court diary. They stated that on the date of hearing, not only the plaintiff No.l but the witnessses summoned by her to give evidence in her favour allo sat outside the Court room to wait for the call of the case which according to them the trial Court never made. Mian Minat Ullah Advocate who represented the plaintiffs before the trial Court and a witness summoned to give evidence on that date gave affidavits to support plaintiffs' version. As the complaint filed by the plaintiffs against the conduct of the trial Judge is under enquiry on the administrative side of the High Court, we decline to offer our comments on this aspect of the controversy to avoid prejudice to the pending departmental enquiry but upon the materials placed before us, we are of the firm view that sufficient cause was made out to explain plaintiffs' actual non-appearance in Court when the suit was called on for hearing and this circumstance permits us to set aside the impugned order to direct decision on merits. The course adopted by us would certainly curtail further delay in decision of the case which, if we had taken the other course suggested to us by learned counsel for the respondents and also available in the dissenting opinion of Rama, J., in Full Bench case noted above, further delay would have been inevitable. Similarly, the above course shall avoid unnecessary hazards and further rounds of litigation which in case the plaintiffs were pushed to apply to the trial Court for restoration of the suit were bound to occur. It is for these and other reasons that we ourselves have opted to set aside the impugned order on the cause shown for non-appearance in Court and taking it to be a sufficient cause to explain the default, direct restoration of the suit for its decision on merits after affording reasonable opportunity to the plaintiffs to produce evidence on issues requiring proof by them. We would, accordingly, accept the appeal, set aside the impugned order and direct decision of the suit on merits as indicated above. As to the cost in this Court, we shall make no order.
Records be returned to the Court below. Parties have been directed to appear before it on 14.7.1990.
(MBC) Appeal accepted
Present: gul zarin kiani and KHALiD paul khawaja, JJ Mst. ARIFA AMJAD and 2 others-Appellants
versus
ABBAS TAYYAB DAR and another-Respondents
R.F.A. No. 167 of 1989, accepted on 5.6.1990
(i) Civil Procedure Code, 1908 (V of 1908)--
—O. XVII Rr. 2&3~Partition—Suit for—Absence of plaintiffs evidence and" their counsel on adjourned date of hearing—Dismissal of suit—Challenge to—In case of mere dismissal in default of appearance, remedy lies for restoration through an application to trial court—Necessary conditions for applicability of Rule 3 were clearly wanting—Case fell for disposal under Rule 2 of Order XVII of CPC-Impugned order closing evidence and dismissing suit for want of proof in absence of plaintiffs could not be made-Held: There is no bar in law to treat impugned order to have been made under Rufe 2 of Order XVII and it is a case of dismissal in default though trial court proceeded dffierentry-- Suit ordered to be restored. " [PpJ04,505,50'7]C&D
PLD 1981 SC 474 re/,
(ii) Civil Procedure Code, 1908 (V of 1908)-
—O. XVII Rr. 2&3-Partition~Suit for-Absence of Plaintiffs evidence and their counsel on adjourned dale—Dismissal of suit—Challenge to—Whether impugned order is covered by Rule 3 or 2 of Order XVII CPC—Question of- For application of Rule 3, it is necessary that defaulting party must be present or deemed to be present before court, that adjournment must have been granted to party at his request, that party defaulted in doing act for which he took time, and that there must be some material on record for decision of case-Held: Mere default in appearance at adjourned date of hearing fell
within ambit of Order XVII Rule 2 of CPC. [Pp.500&504]A&B
AIR 1924 Lahore 545 (DB). AIR 1964 Rajesthan 147. AIR 1976 Madhya Pradesh 21 (FB), PLD 1963 (WP) Karachi 356, PLD 1967 Dacca 633. PLD 1970 Quella 79. PLD 1975 Lahore 385, AIR 1976 Allahabad 290 and AIR 1977
Madhya Pradesh 222 ref.
Mi: Jariullah Ktuin, Advocate for Appellants. Mian Iqbal Hussoin, Advocate for Respondents. Dates of hearing: 4 & 5.6.1990.
judgment
Gul Zarin Kiani, J.—This is a first appeal by the plaintiffs, against an order of the trial Court dated 7.11.1989, closing their evidence, and, dismissing the partition suit brought by them for want of proof.
Briefly stated, the factual matrix giving rise to this appeal are that, on 4.7.1988, the plaintiffs instituted a civil suit against defendants for separate possession through partition of their share of property jointly held between them. It was stated in the plaint that a moiety in the property known as 33-B Model Town, Lahore belonged to late Sher Mohammad Dar. He expired on 24.6.1980. He had three sons, namely, Abbas Tayyab Dar, Zafar Iqbal Dar, and, Mohammad Idrees Dar. First two are defendants 1 and 2 to the partition suit, whereas the third, namely, Mohammad Idrees Dar pre-dcceased his father and was survived by three daughters who arc his true legal representatives and plaintiffs in the partition suit. They claimed I/3rd share in the joint property, which their father, if alive at the time of the demise of his father, would have inherited from him. Defendants resisted lac suit; denied the joint character of the property as also the correctness of the shares claimed in it by the plaintiffs. Proceedings taken for appointment of a local commission and issue of temporary injunction aside, necessary issues requiring determination were settled by the trial Court on 3.9.1988 and the dale fixed for plaintiffs evidence on 22.1.1.1988. 22.11.1988 was a closed day. Consequently, suit came up before the trial Court on succeeding day i.e. 23.11.1988 and was adjourned to 26.1.1989, 30.1.1989 and 1.3.1989 for sorting out certain ancillary matters. On 1.3.1989, trial Court fixed the case for the plaintiffs' evidence on 30.4.1989. Meanwhile, suit was transferred to the file of another Judge by administrative order of the District Judge and parties were directed to appear before the transferee Court on the date already fixed in the case. On 30.4.1989, the transferee Court recorded in the order sheet that suit be registered; parties were not present and then adjourned the suit to 24.6.1989 for plaintiffs' evidence. Obviously, the date for evidence of the plaintiffs was given in absence of the parties. On the adjourned date, neither the plaintiffs nor their counsel entered appearance. The Clerk to the plaintiffs' counsel whose presence %vas marked in the order sheet had informed the trial Court that plaintiff No.l was in family way and except for her statement, no other evidence shall be produced. On the same date, counsel for the defendants who was present in Court, complained of jaundice and requested for adjournment. Thus, say, upon the joint request of the clerk to the counsel for the plaintiffs and the defendants' Advocate, suit was adjourned to 10.9.1989 for recording of statement of plaintiff No.l. Rest of the evidence was closed by the trial Court. On 10.9.1989, as the trial Judge was on leave, suit was adjourned to 7.11.1989 for the purpose already noted in the order of the previous date. On the adjourned date, neither the plaintiffs nor their counsel representing them entered appearance in Court. Defendants were represented by their Advocate. At 12.40 p.m, on 7.11.1989, the suit was dismissed , by the trial Court for want of proof by the plaintiffs. It is worthy of note that no rule of procedure was cited in the order which empowered the Court to make this order. As the order passed by the trial Court was an appealable decree, plaintiffs, preferred an appeal. It was admitted to hearing on 25.11.1989.
On behalf of the appellants, it is argued that upon the facts and circumstances existing on 7.11.1989, neither rule 3 in Order XVII nor rule 1 as amended by Lahore High Court could have applied and upon the correct reading of the record and the impugned order, it squarely fell within the ambit of rule 2 of Order XVII read with order IX Civil P.C; that the order sheet dated 7.11.1989 was not correctly prepared by the trial Court, inasmuch as plaintiff No.l and the witnesses summoned by her through Court were present outside the Court room and wailed for call which was never made and it was erroneously recorded in the order sheet that on calls made, neither the plaintiffs nor their counsel had appeared; that the plaintiffs had submitted a complaint in writing against the conduct of the trial Judge to Hon'ble, the Chief Justice of Lahore High Court and their counsel Mian Minat Ullah Advocate who represented them in the trial Court swore an affidavit to support their allegation; that on the adjourned date, a large body of cases were fixed before the trial Court, some for miscellaneous purposes, some for taking evidence and others for hearing arguments etc. It was winter time and the Court timings were from 9 a.m. to 4 p.m. Therefore, the trial Court was obliged to wait till the time for its rising; that the order closing the evidence was punitive in character and extremely harsh. By it, the plaintiffs were made to lose valuable property for not much of their fault.
In reply, respondents' learned counsel submitted that the impugned order was correctly made and upon the default committed by the plaintiffs in failing to appear and producing the evidence, the trial Court had no option but to dismiss the suit for want of merits as the plaintiffs themselves gave no evidence to establish their case. However, learned counsel for the respondents frankly conceded that to a case of double default viz non-appearance in Court and failing to produce evidence or performing any other act necessary for further progress of the suit, rule 3, in Order XVII Civil P.C. could not have been applied.
First question that we shall consider is as to which rule in Order XVII, Civil P.C. shall apply and govern the impugned order; whether it shall be covered by rule 3 or upon its close analysis ought to fall within the purview of rule 2 of Order XVII Civil P.C. In case it fell under rule 2 of Order XVII, what were the remedies for the aggrieved plaintiffs for setting aside of that order. To answer the first question; we shall have to advert to the Scheme of Order XVII Civil P.C. That order is headed "adjournments". As originally enacted, it consisted of three rules only. Two more rules were added to Order XVII by Ordinance XII of 1972. Only first three rules are relevant for our present purpose. Rule I gave power to the Court to adjourn the hearing of the suit if sufficient cause was shown for it to its satisfaction. There is no doubt that adjournment is in the discretion of the Court. Succeeding two rules applied to adjourned date of hearing of the suit. To this extent, there is similarity between them. Order IX -Civil P.C. provided for consequences arising out of non-appearance of all or any of the ] arties to the suit on the first date of hearing. To the adjourned dates of hearing, undisputedly, Order XVII was attracted. Rule 2 stated that where on ihc adjourned date of hearing, parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf in Order IX or make such other order as it thinks fit. Then follows rule 3. It deals with an altogether different situation. It is headed "the Court may proceed notwithstanding either party fails to produce evidence etc." It 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".
Having're-produced the relevant provisions of Order XVII Civil P.C, above, we shall advert to rules 2 and 3 to discover about their application. Distinction in the phraseology employed in rules 2 and 3 appears to be marked. It has been subject matter of discussion in numerous judgments of the superior Courts found in law reports. However, judicial consensus leans in favour of the view that necessary conditions for the applicability of rule 3 are:- (i) time must have been granted to the party at his instance; (ii) the time must have been granted to the party to do one or other of the three things mentioned in the rule viz to produce evidence or to cause .^tendance of witnesses or to perform any other act necessary for the progress of the suit; (iii) default must have been committed by the party in doing the act for which the time and adjournment had been granted to it, and, (iv) the Court must decide the suit forthwith which means a decision within a reasonable time under the circumstances. Additionally, some decisions that provisions in rule 3 being stringent and penal in character shodtt not be applied unless the facts do not admit application of any other rule of the Code and also that for its proper application, sufficient material must be jvail-iMe on record for giving a proper decision on merits which do not include a nummary decision. There is no doubt that provisions in Order XVII, rule 3 are permissive and not mandatory. However, there is some dispute between the Courts on the application of rule 3 in case of a double default viz non-appearance in Court and failing to take necessary steps for which the adjournment was granted by the Court. In Jhanda Singh and others versus Sadiq Mohammad and others — A.I.R 1924 Lahore 545 (D.B.), Gopi Kisan versus Ramu and another — A.I.R. 1964 Rajasthan 147 and Smt. Shantabai versus Chokhelal— A.I.R, 1976 Madhya Pradesh 21 (F.B.), it was held that it is open to the Court to proceed under Order XVII, rule 3 even in absence of a party where the conditions laid down in the said rule are fulfilled and it appears just and proper to do so. In the above three decisions, order XVII, rule 3 was applied to the case of double default viz default in appearance and failing to perform the necessary conditions for which the adjournment was allowed by the'Court. In the first case cited from the Lahore High Court which dealt with double default for application of Order XVII, rule 3, entire evidence in the case had been recorded and parties had closed their respective cases and a date for hearing of arguments had been fixed on which one of the party defaulted in appearance and in those circumstances it was held that Order XVII. rule 3 could be applied for giving a decision on merits of the case. In the other two cases from the Post Indian jurisdiction, it was expressly found that rule 3 of order XVII was applicable to a case of double default even if there was no material available on record for giving a decision on merits. In Abdul Shakoor versus Abdul Rasool reporled in P.L~.D. 1963 (W.P.) Karachi 356, a different view on this point was expressed. It was held that for application of the procedure laid , down in rule 3 to a case, there must be the presence of both the elements, namely, (1) the adjournment must have been at the instance of a party, and, (2); there must be material on the record for the Court to proceed to decide the suit. It was further held that the presence ofene without the other does not justify application of rule, 3. It was also observed that even in the case where a special adjournment is granted by the Court and party fails to appear in person and his pleader reports no instruction, it would be a cas<j of double default in so far as there is default of appearance and the case woulithen fall under Order XVII, rule 2 of the Code of Civil Procedure. In the above-case, Order XVII rule 3 was not applied, apart from other things, to a case of double default. In Muhammad Manikuddin versus Samiran Bibi and others- P.LllX 1967 Dacca 633 (at 638) after referring to rules 2 and 3 of Order XVII, the Court qbserved:-
"As is clear. Rule 3 is, applicable only to cases where a party to whom time has been granted on his own application to do some specified act necessary lor hire to take if he is to prosecute his case fails to take that step. In all other cases ©f adjournment, for whatever purpose that may be, the provision of Rule 2 $hall apply. Rule 3 is really in the nature of an exception to the general provision embodied in the next preceding Rule, i.e. Rule 2, and authorises the Court to proceed to a decision on merits in spite of default if there are on record materials to warrant such a decision. As Rankin, .C.J. in the case of Krishta Kishore Bose v. Pancharam Maity (1) rujj observed:-
"It is quite true that in the order as recorded it appears that the adjournment was made on the application of both parties. It is quite true that there is that notice that parties would get no further adjournment in the words "parties must come ready on that day". Still I do not think that that is what is contemplated by the terms of Rule 3. Rule 2 begins by "Where, on any day to which the hearing of the suit is adjourned", (it does not say at whose instance it is adjourned) "the parties or any of them fail to appear." Rule 3 says "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". It seems to me that default of appearance in a case of general adjournment before hearing is within Rule 2 and that rule 3 (sic) is directed to a case where a party is definitely given time in order that he may take a certain step which it is necessary for him to take if he is to prosecute his case, and fails to take that step."
It will thus appear that Rule 3 is clearly inapplicable to the instant case in that there was no adjournment at the instance of either party to enable it to take any step necessary for the purpose of prosecuting its case. In my opinion, it cannot be said to come within the ambit of Rule 2 either inasmuch as there was really no adjournment of the hearing of the suit at all. It is true that in the order dated 31.12.58, already cited above, the learned Munsif used the word "adjournment" but that appears to have' been done rather loosely instead of the proper word "fixed" in that by the order dated 22.12.58 the suit had in express terms been set down on 30.12.58 for "fixing" the dale of pre-emplory hearing. Again even assuming that there was adjournment of hearing though, in my opinion, it was not a case of such adjournment at all, that can only be regarded as a general adjournment coming within the purview of Order XVII, rule 2, and in that case also, it is the provision of rule 3 of Order IX that would be applicable in the circumstances of the instant case. It follows that in any view of the matter the suit could not be proceeded with under the provision of Order XVII, rule 3, even if there were legal materials on record to enable the Court to make a decision on merit. It could not be dealt with under Order IX, rule 6 either, in that the most essential condition postulated therein, i.e. appearance of the plaintiff, was wanting. The only provision that could therefore, apply was rule 3 or Order IX and as such the appropriate order to make was one of dismissal for default."
In Wadera Dalel Khan and 7 others versus Province of West Pakistan and 6 others— P.L.D. 1970 Quetta 79, it was observed:-
"Admittedly none of the plaintiffs was present when the suit, was ft dismissed by the trial judge and there was no material on the record for ' him to give a decision on merits. The evidence was yet to be produced by the plaintiffs. The Court could only proceed under Order XVII, rule 2, C.P.C. in such circumstances. Either the suit could bg adjourned or action could be taken under Order IX, C.P.C. The Court could dismiss the suit on merits only if some evidence of the plaintiffs had been recorded and in his view that evidence was not sufficient enough to sohstauUatc their claim. But stringent action under Order XVII, rule 3, GP-C^ without there being any documentary or oral evidence on record, wa& not available to the Court under the law. Distinction has been drawn between the two rules by a Full Bench of Bombay High Court reported as Basalingappa Kitshappa Kumbhar and others v. Shudranappa Irappa Shivanagf and another (1) and our above view is in accord with the decision of the Full Bench. •
6. As we find thai the order passed by the trial Court is not on merits, mere mentioning by the Court that the suit is dismissed under Order XVII, rule 3, C.P.C. would not bring the order under that rule. It was so held in Raja Singh v. Manna Singh and others (1)."
In the later part of the Judgment, the cour) observed:—
"It is desirable that litigants should get decision on merits in their cause. If the plaintiffs fail to comply with the order of the Court repeatedly then an action can be taken against them under the relevant provision of law. We should make it clear that extreme measures should only be taken if the Court comes to the conclusion that the plaintiffs by their conduct had made it impossible for the Court to proceed with the trial of the suit and the continuation of the proceedings was only intended to cause harassment to the defendants."
From the above extracts, it is evident that Order XVII, rule 3 was applied and suit dismissed by the trial Court but the view by the trial Court was not upheld by the High Court. Somewhat similar views were expressed by the High Court on the necessary conditions for the application of rule 3 of Order XVII in Lai versus Ghulam Muhammad and another — P.L.D 1975 Lahore 385. On the question whether rule 3 presupposes actual or deemed presence of the parties before the Court, a Full Bench of the Allahabad High Court in M.S. Klialsa versus Chiranji Lai and others —A.I.R 1976 Allahabad 290 observed lhat rule 3 applies when a party is present or is deemed to be present and has defaulted in doing the acts mentioned in rule 3. Similarly, in Rama Rao and others versus Shantibal and others- A.I.R 1977 Madhya Pradesh 222, a Full Bench of Madhya Pradesh High Court of five Judges by 4:1 (S.M.R. Raina, J., disagreeing) overruling the earlier Full Bench decision of their Court in the case of Mst. Shantabai, after survey of conspectus of the authorities of various High Courts, in para 9 of the judgment observed thus:-
"The plain and unambiguous, language of the two provisions; the deliberate departure made in the phraseology of the two Rules, the undisputed need to construe R.3 strictly; the consequences which necessarily follow as a result of the construction made and the heading of the two Rules, are factors which lead us without any hesitation to the conclusion that R.2 applies to all cases of default in appearance of all or any of the parties with the result that R.3 does not apply to any of those cases. This conclusion also enables the defaulting party to have the order made under O.9, C.P.C. set aside in the manner provided for that purpose in the Code by showing that there was valid reason for default in appearance on the date fixed. This is done in the manner prescribed by the Code. We also think that the expression "such other order as it thinks fit" used in R.2 permits disposal of the suit and not a decision thereof on merits contemplated by R.3, in a mode other than that provided in O.9, e.g., by an order of adjournment. A contrary conclusion would resufa. in several needless difficulties. In the first place, that would permit an order of the type contemplated by R.3 even iit the case of a default in appearance of any of the parties which is a construction not acceptable to us'for the reasons already given. That apart, it would permit the making of an order contemplated by R.3 withft* the ambit of R.2 itself so that such a construction would render R.3 superfluous. It is settled that unless it is unavoidable, a construction which renders a provision superfluous must be rejected. All these reasons impel us lo take the view that the expression "or make such other order as it thinks fit" used in R.2 docs not include within its ambit a decision falling within the ambit of R3. As for R.3, it follows that this Rule presupposes the presence of all parties and then the failure of the party at whose instance and for whose benefit the hearing was adjourned on the previous date to perform the act necessary to the further progress of the suit. It is only to this class of cases that R.3 applies and it has no application to cases falling within the ambit of R.2. In our opinion, whenever such a question arises, it has first to be seen whether R.2 applies to the facts of a case since on R.2 being attracted, the operation of R.3 would be automatically excluded. It is only when there is no default in appearance of all or any of the parties that the question of applying R.3 would arise to the facts of a case, provided the requirements laid down in R.3 are fulfilled."
Therefore, in addition to the conditions already mentioned above for the application of rule 3 of Order XVII, it is necessary that the defaulting party must be present or deemed to be present before the Court. In our view, the views expressed by the Full Bench of Madhya Pradesh in the case ofRgma Rao (Supra) correctly summed up the law and enunciated it correctly- with which we whole heartedly agreed and observe that for the application of rule 3, the conditions given below must co-exist; (i) adjournment must have been granted to the party at his request; (ii) it must have been granted to it for the purposes mentioned in the rule; (iii) the party who has taken the time defaulted in doing the act for which he took the time from the Court; (iv) the party must be present or deemed to be present before the Court; (v) that there must be some material on record for decision of the case on merits and lastly, that the Court must decide the suit forthwith that is within a reasonable time. In our view, mere default in appearance without more at the adjourned hearing fell within the ambit of rule 2 of Order XVII, Rule 3 catered for an altogether different situation. As said above, it presupposed the presence of the parties and failing to perform the necessary acts mentioned in the rule by a defaulting party. Not only the above two rules attract to different sets of situations but the remedies provided against the orders passed under these rules are also different. In case of a mere dismissal in default of appearance, there is a remedy for restoration in" an application for this purpose addressed to the trial Court. Conversely, if an order has been passed under Order XVII, rule 3 Civil Procedure Code, an appeal }$es against it to the higher Court. When we look at the records, keeping in view the distinction in rules 2 and 3, we feel no hesitation to say that necessary conditions for the applicability of rule 3 in the case before us were clearly wanting. Adjournment in the suit was not at the request of the defaulting party but was by the order of the Court itself. Therefore, the very first condition for the applicability of rule 3 was conspicuous by its absence. Furthermore, according to the trial Judge, the plaintiffs had defaulted to appear and failed to produce evidence. Therefore, the second important condition for the applicability of rule 3 that the parties must be present or deemed to be present was also non-existent. Similarly, there was no material on record to assist decision on merits by the trial Court. In absence of the plaintiffs, drastic provisions in rule 3 could not have been invoked against them to order an outright dismissal of a partition suit which involved rights to valuable property. It may be of some advantage to observe here that even learned counsel for the respondents failed to support the impugned order on the score that it could not have been passed under rule 3 of Order XVII. In his view and we share this view, the case fell for disposal under rule 2 of Order XVII read with Order IX Civil. P.C. Either the suit could be dismissed in default of appearance under Order IX rule 8 or the Court could make such other order as it thought fit which also included an order for further adjournment of the case. It had the discretion to act both ways and was not bound to' order dismissal in default of appearance Therefore, there is no doubt that upon proper reading of record and application of correct legal principles, impugned order closing evidence and dismissing the suit for want of proof in absence of the plaintiffs could not be made. Only proper and legal order which the trial Court could make was dismissal of the suit in accordance with the modes prescribed in Order IX Civil P.C. If this be so and we think it is so, only rule 2 applied which gave power to the Court to dismiss the suit in default in case plaintiff or their counsel did not appear when the suit was called on for hearing and the defendants were present before the Court. As we have already said, both the learned counsel agreed that the proper order in the case would have been the dismissal of the suit in default of appearance and not its dismissal on merits for want of proof. There is no bar for us in law to treat the impugned order to have been made under rule 2 of order XVII and hold it as a case of dismissal for default in appearance, though the trial Court had proceeded differently. Next question confronting us is about the remedy and the relief that could be granted to the plaintiffs. There is also a related question, whether the restoration should be ordered by the High Court in appeal or the matter should be left to the trial Court to be dealt with on an application under Order IX rule 8, Civil P.C. Raina, j.. in his dissenting opinion in the Full Bench case of Rama Rao, dealt with this point as stated below:-
"Beforc I conclude the consideration of this question, I may refer to another point on which some stress has been laid by my learned brother Verma, J. for coming to the conclusion that the Court has no jurisdiction to proceed under R.3 of Order XVII in the absence of the defaulting party. It has been said that if R.3 of Order XVII is to be construed so as to include within its ambit cases of default in appearance, the defaulting party would have to be given an opportunity, for the first time, by the Appellate Court to show that his default can be condoned for valid reasons and this would be stretching the powers of the Appellate Court requiring it to adopt a procedure for which there is no sanction in the Code of Civil Procedure. To my mind no question of stretching the powers of the Appellate Court at all arises because it is always open to the Court to rectify errors of the trial Court in the exercise of its ordinary appellate jurisdiction. If, in appeal, the appellant is able to show prima facie on affidavit or otherwise that there was good cause for his absence and that, if he had appeared, he would have, produced his evidence or performed other acts for which he had secured the adjournment, the Appellate Court can convert the order under R.3 into an order under r.2 of Order XVII and leave it to the party to have the decision against him set aside by an application in the trial Court under O.IX. Such a course was adopted by this Court in a number of cases. In Mamti v. Gangadhar Rao 1964 Jab LJ 559 Dixit, C.J. held that where the trial Court erroneously dismissed a suit under R.3 of OXVQ when it should have dismissed it under R.2, the proper order to pass in an appeal is to substitute the order of the trial Court by an order dismissing the suit under R.2 of Order XVII. A similar view was taken by a Division Bench in Madanlal v. Jai Narayan (AIR 1972 Madh Pra 8) and also by the Full Bench in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) (supra). To say that such a course is not appropriate or not permissible would lead to grave injustice. Where the Court expressly proceeds under R.3 of Order XVII, the" party aggrieved would ordinarily file an appeal and in such a case it would be proper exercise of jurisdiction by the 'Appellate Court to give suitable relief to the appellant by substituting the order under R.3 by an order under R.2 of Order XVII if it finds that the trial Court had wrongly proceeded under R.3."
It is true that when a suit is dismissed in default of appearance by the trial Court, remedy for the aggrieved party is to apply for its restoration by an application under Order IX Civil P.C. That is the ordinary rule. But, in the existing circumstances, the plaintiffs could not take re-course to the above legal remedy and run the risk of dismissal of their application for restoration. From the impugned order, it did not look to be a simple case of dismissal of the suit for default in appearance by the plaintiffs but it appeared practically to be a dismissal of the suit on merits for want of proof by the plaintiffs and remedy against such an order lay in an appeal to the higher forum. It is well settled that the law relating to remedies must not only be certain and unambiguous but clear also to the litigants. Otherwise, they are put to great hardship and suffer injustice. In the case before us, if the plaintiffs had gone to the trial Court for restoration of the suit under order IX, they could have been met with an objection that as the decision was recorded under rule 3 of Order XVII, their remedy was by way of an appeal only. We think such an objection could have been held valid and had the support from the judgment of the Supreme Court in Shahid Hussain versus Lahore Municipal Corporation—P.L.D 1981 S.C 474. Therefore, the only remedy which the plaintiffs could avail of was to file an appeal against the "decree" which the decision of the trial Court undoubtedly amounted to. Power of the High Court as also its jurisdiction to set aside the impugned order in appeal treating it to have been made under Order XVII rule 2 were not questioned by the respondents and we think rightly because Section 107 read with the relevant provisions in the Schedule 1 of the Civil Procedure Code clearly provided that generally the appellate Court has all the powers and duties of the trial Court. Plaintiffs had questioned the correctness of the Court diary. They stated that on the date of hearing, not only the plaintiff No.l but the witnessses summoned by her to give evidence in her favour allo sat outside the Court room to wait for the call of the case which according to them the trial Court never made. Mian Minat Ullah Advocate who represented the plaintiffs before the trial Court and a witness summoned to give evidence on that date gave affidavits to support plaintiffs' version. As the complaint filed by the plaintiffs against the conduct of the trial Judge is under enquiry on the administrative side of the High Court, we decline to offer our comments on this aspect of the controversy to avoid prejudice to the pending departmental enquiry but upon the materials placed before us, we are of the firm view that sufficient cause was made out to explain plaintiffs' actual non-appearance in Court when the suit was called on for hearing and this circumstance permits us to set aside the impugned order to direct decision on merits. The course adopted by us would certainly curtail further delay in decision of the case which, if we had taken the other course suggested to us by learned counsel for the respondents and also available in the dissenting opinion of Rama, J., in Full Bench case noted above, further delay would have been inevitable. Similarly, the above course shall avoid unnecessary hazards and further rounds of litigation which in case the plaintiffs were pushed to apply to the trial Court for restoration of the suit were bound to occur. It is for these and other reasons that we ourselves have opted to set aside the impugned order on the cause shown for non-appearance in Court and taking it to be a sufficient cause to explain the default, direct restoration of the suit for its decision on merits after affording reasonable opportunity to the plaintiffs to produce evidence on issues requiring proof by them. We would, accordingly, accept the appeal, set aside the impugned order and direct decision of the suit on merits as indicated above. As to the cost in this Court, we shall make no order.
Records be returned to the Court below. Parties have been directed to appear before it on 14.7.1990.
(MBC) Appeal accepted
No comments:
Post a Comment