Durga Dass & ors. vs Prabhu Devi

(1) This civil revision is against the order dated 15111977 of the Munsiff Samba ordering the restoration of the suit.

(2) In a suit for dissolution of partnership and rendition of accounts the plaintiff was ordered to produce her evidence, but despite repeated

opportunities granted to her in this behalf, she failed to produce her evidence. The case was, thereafter, posted on 2141977, when on that date the plaintiff failed to appear and also did not produce any evidence. The court consequently dismissed the suit An application for restoration was made by the plaintiff before the trial court. An objection was taken on behalf of the defendantrespondent that no application under Order 9 would lie inasmuch as the order of the trial court fell within order 17 rule 3 C. P. C which was applicable. The learned Judge, however; did not agree with the contention of the defendantrespondent. He held that the order was purported to have been made under rule 2 of Order 17 and not under rule 3

of the said order and, therefore, the application was maintainable. He accordingly restored the application on payment of Rs. 30/ as costs to the

other side.

Against this order of the trial Judge, the defendantrespondent has come up in revision before this court.

(3) Mr. Joginder Singh appearing for the petitioner has submitted that the trial court has taken an erroneous view of the law as the order dated

2141977 clearly fell within rule 3 and not under rule 2 of Or, 17 C. P. C. It is submitted that time was given to the plaintiff to produce her

evidence. She failed to produce her evidence and also failed to do something for the further progress, of the case with the result that on the day when the impugned order was made, she remained absent and the trial court dismissed the suit not for default. It would be assumed that the order of dismissal has proceeded on merits of the case in this connection the learned counsel has relied upon. AIR 1764 Rajasthan 147.

(4) I have given my thoughtful consideration to the submission made by the learned counsel for the petitioner. I am of a view that the argument is

devoid of merit inasmuch as what rule 3 lays down is that the court can decide the suit forthwith if the party to whom time has been granted fails to produce the evidence or to cause the attendance of the witnesses But in order to attract rule 3 what is essential is that the court must decide the case on merits Where the plaintiff remains absent inspite of the fact he has been given opportunity to produce evidence and the court does not decide the case on merits for the lapse on the part of the plaintiff, then it is not rule 3 that applies but it is Rule 2 that is attracted to the case.

(5) Under rule 2 the court has been given discretion to dispose of the suit in one of modes directed by order 9 or to make such order as it thinks fit

where the party or any of them fails to appear on the date fixed in the case. As the trial court did not decide the case on merits, but simply observed that the plaintiff had remained absent and had failed to produce evidence and, therefore dismissed the suit, that in my opinion would not bring the case within the four corners of rule 3. Therefore, the view taken by the learned Judge cannot be questioned as being unsound.

(6) The result is that I see no force in this petition which is dismissed with costs.

(7) The parties are directed to appear before the Munsiff Samba on 8th of December, 1979.