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Judgment
S.S. Shinde, J.—In pursuance to the notice issued for final disposal, this matter is taken up for final hearing.
Rule. Rule is made returnable forthwith and by consent of the parties, taken up for hearing.
In this civil revision application, the judgment and order dated 28.10.2009passed by the Joint C.J.S.D., Osmanabad in Special Civil Suit No. 117 of 1999 is under challenge.
The learned Counsel appearing for the applicant submits that if at all the Court wanted to dismiss the suit for non presence of the Plaintiff or his pleader, the suit ought to have been dismissed in default as contemplated under the provisions of Order IX, Rule 3 r/w Rule 10 of the Code of Civil Procedure. The learned Counsel for applicant invited my attention to the impugned judgment and submitted that it was also open for the trial Court to dispose of the suit on merits. However, from perusal of the reasons recorded by the trial Court, it does not appear that the trial Court has appreciated the documentary evidence placed on record. Therefore, according to the learned Counsel for the applicant, this revision application deserves to be allowed.
On the other hand, the learned Counsel appearing for the Respondents submits that if the parties failed to appear on the date fixed for hearing, the trial Court has an option to proceed with the matter under Order XVII, Rule 3 of the Code of Civil Procedure.
I have given due consideration to the rival submissions of the parties. In my opinion, if at all the trial Court wanted to dispose of the suit, the said option was open but, only after appreciation of the documentary evidence which was produced on record. I find considerable force in the argument of the learned Counsel for the applicant that in case the Plaintiff or pleader fails to appear on the date on which the matter was fixed for hearing, in that case, the only option which is available and the procedure required to be followed by the Court is under the provisions of Order IX, Rules 3 and 10 of the Code.
In that view of the matter, the impugned judgment and order cannot be sustained and the same is quashed and set aside. The Special Civil Suit No. 117 of 1999 is restored to its original file. The parties will be at liberty to adduce evidence, if any. The trial Court to decide the said suit afresh by giving reasonable opportunity of hearing to the parties. The trial Court to decide the suit, as expeditiously as possible and preferably within one year from today. The learned Counsel appearing for the parties assures this Court that that No. unnecessary adjournments will be sought unless there is extraordinary circumstance for asking adjournment.
Civil Revision Application is allowed in the above terms. Rule is made absolute, accordingly with No. order as to costs.