Bookmark
PDF
Share
CaseIQ

Hashmat Rai v. Lalchand And Another, Non-Applicants

Madhya Pradesh High Court

Oct 23, 1951

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Factual and Procedural Background

This revision petition arises from an order dated 23-6-1951 of the Subordinate Judge, Bhopal, which restored a plaintiff's suit that had been dismissed under Order 17, Rule 3, Civil Procedure Code (CPC) on 7-5-1951. The suit was originally fixed for the plaintiff's evidence on 21-4-1951 but was adjourned to 7-5-1951 on condition of payment of Rs. 25 as costs. On the adjourned date, the plaintiff was absent, his counsel stated he had no instructions, and the cost was unpaid. Consequently, the suit was dismissed under O. 17, R. 3, CPC.

Subsequently, on 29-5-1951, the plaintiff applied for restoration of the suit on grounds of illness and absence from the city, contending that the dismissal should have been under O. 17, R. 2, CPC, not R. 3, and thus the application was tenable. The Subordinate Judge accepted this view and restored the suit relying on the plaintiff's affidavits without calling for evidence. The defendant challenged this restoration by filing the present revision petition.

Legal Issues Presented

Whether the dismissal order dated 7-5-1951 should have been passed under Order 17, Rule 2 or Rule 3 of the Civil Procedure Code.
Whether the Court can correct its own order by treating an order passed under Rule 3 as one under Rule 2 and entertain an application for restoration of the suit.
Whether the restoration application was tenable without giving the defendant an opportunity to adduce rebuttal evidence.
Whether the plaintiff's grounds for non-appearance were proper and sufficient for restoration.
Whether the defendant is estopped from challenging the restoration order because of receipt of costs.

Arguments of the Parties

Applicant's Arguments

The dismissal on 7-5-1951 was properly under Order 17, Rule 3 CPC, thus no application for restoration was tenable.
The plaintiff should not benefit from non-appearance by applying for restoration, as if he had appeared, he could have produced witnesses or paid costs.
The grounds for non-appearance were improper and insufficient.
The restoration order was improper as no opportunity was given to the defendant to adduce rebuttal evidence, and affidavits filed by the plaintiff could not be relied upon without such opportunity.

Non-Applicant's Arguments

The order of dismissal should have been under Order 17, Rule 2 CPC, not Rule 3, making the restoration application tenable.
The Court can correct its own error by treating the order under Rule 3 as one under Rule 2 and entertain restoration.
The defendant cannot challenge the restoration order as he received the costs awarded by the Court, invoking estoppel principles.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Abdul Karim v. Ratilal Gujrati, AIR 1930 Nag 152	Rules 2 and 3 of Order 17 CPC are mutually exclusive; Rule 2 applies to absence of parties, Rule 3 to presence but failure to produce evidence.	Confirmed that absence of plaintiff necessitates dismissal under Rule 2, not Rule 3.
Ko Tha Lin Bwin v. Ko Hla Kye, AIR 1930 Rang 270	Acceptance of the exclusivity of Rules 2 and 3 of Order 17 CPC.	Supported the principle that Rule 2 applies to absence, Rule 3 to presence.
Madan Gopal v. Budhu, AIR 1932 Lah 477	Follows the principle regarding Rules 2 and 3 of Order 17 CPC.	Reinforced the exclusivity of the rules in dismissal procedures.
Rukmansa Rajansa v. Shankargouda Basangouda, AIR 1941 Bom 83	Dismissal under O. 17, R. 2 must be applied if plaintiff absent on adjourned date; Rule 3 not applicable in such absence.	Applied to hold that dismissal in absence must be under Rule 2, not Rule 3.
Basalingappa Kushappa v. Shidramappa Irappa, AIR 1943 Bom 321 (FB)	Approval of the principle that dismissal in absence is under Rule 2.	Supported the court’s reasoning on proper application of Order 17 Rules.
Basayya Ayappa v. Allayya Maharudrayya, AIR 1925 Bom 328	The trial court, not appellate court, can consider sufficient cause for non-appearance if dismissal is under Rule 3.	Examined but found insufficient to support correction of order by trial court.
Raja Singh v. Manna Singh, AIR 1940 All 217	Application to set aside ex parte order under Rule 3 read with Rule 13 of Order 9 CPC.	Found not helpful due to specific provisions involved.
Venkataratnam v. Apparao, AIR 1948 Mad 80	Where suit dismissed under Rule 3, plaintiff can appeal or proceed under Order 9, Rule 9 CPC.	Noted but distinguished due to absence of discussion on court’s power to review its own order.
Udai Ram Gopi Ram v. Raghuraj Singh Khubchand, AIR 1944 All 211	Once order passed under Rule 3, court has no jurisdiction to set it aside.	Supported the conclusion that the court cannot correct its own order by changing the rule under which it was passed.
Shib Sahai v. Tika, AIR 1942 Oudh 350	Affidavits can be accepted as evidence if opportunity given to counter-affidavit or cross-examination.	Distinguished because in the present case defendant was not given opportunity to rebut affidavits.
Mohammed Siddique v. Nandkishor, Civil Revision No. 12 of 1951	Estoppel principle applied where party received costs and cannot challenge order.	Rejected application of estoppel here as plaintiff did not fully comply with cost order.
Venkatarayudu v. Rama Krishnayya, AIR 1930 Mad 268	Principle of estoppel applied in relation to costs and challenging orders.	Referenced in rejecting estoppel argument due to non-compliance with cost order.

Court's Reasoning and Analysis

The Court first analyzed the applicability of Order 17, Rule 2 and Rule 3 CPC. Rule 2 applies when a party fails to appear on the adjourned date, allowing the Court to dispose of the suit accordingly, while Rule 3 applies when the party is present but fails to produce evidence or perform acts necessary for the suit's progress.

Since the plaintiff was absent on 7-5-1951, the Court held that the dismissal should have been under Rule 2, not Rule 3. The Court rejected the argument that the plaintiff should not benefit from non-appearance, emphasizing that had the plaintiff appeared, he could have explained or remedied the situation.

The Court then considered whether the Subordinate Judge could correct the original order by treating it as passed under Rule 2 instead of Rule 3 and entertain restoration. It concluded that once the Court had passed an order under Rule 3, it lacked jurisdiction to correct it by reclassifying it under Rule 2. The proper remedy was an appeal, not restoration.

Regarding the restoration application, the Court found it improper to decide the matter on affidavits alone without allowing the defendant to adduce rebuttal evidence, as the defendant had reserved the right to do so. However, since the application was held not tenable in law, the Court declined to remit the matter back to the lower Court.

The Court also rejected the estoppel argument raised by the defendant because the plaintiff had not fully complied with the order regarding payment of costs, and therefore could not prevent the defendant from challenging the restoration order.

Holding and Implications

The revision petition is allowed. The order of the Subordinate Judge dated 23-6-1951, which set aside the dismissal of the suit and restored it to file, is set aside. Costs are awarded against non-applicant 1, who shall bear his own costs. Counsel fees of Rs. 30 are fixed for each side in this Court.

The direct effect is the reinstatement of the dismissal of the suit under Order 17, Rule 3 CPC, as originally passed on 7-5-1951. No new precedent is established beyond the reaffirmation that a Court cannot correct its own order by reclassifying it under a different procedural rule; the proper remedy lies in appeal. The Court also emphasizes procedural fairness by noting the necessity of allowing parties to adduce rebuttal evidence before deciding restoration applications on affidavits.

Show all summary ...

Nihalani, for Applicant, Chugani, for Non-applicant No. 1.

Judgement

- This is a revision petition by defendant 1 against the order dated 23-6-51 of the Subordinate Judge, Bhopal, restoring the non-applicant no. 1 plaintiffs suit dismissed under O. 17, R. 3, Civil P. C, on 7-5-51 to file.

2. The suit was fixed for plaintiffs evidence on 21-4-51, but was adjourned, subject to payment of Rs. 25 as cost, to 7-5-51, as his witnesses were not summoned. On 7-5-51 the plaintiff was absent and his counsel stated that he had no instructions; the cost of Rs. 25 was also not paid and the Court therefore dismissed the suit under O. 17, R. 3, Civil P. C.

3. On 29-5-51 the plaintiff filed an application for restoration of the suit to file on the ground that he was taken ill and had gone to Bombay before 21-4-51 asking his counsel to seek an adjournment, that he was not informed of the order for cost or the date of the next hearing and hence could not give any instructions nor could he pay the cost; that the mention of O. 17, R. 3 in the order dated 7-5-51, was an accidental error for order O. 17, R. 2 and the application was thus tenable. Defendant 1 denied the allegations and contended that the application was not tenable and stated that the question be decided as a preliminary objection. The Subordinate Judge held that the dismissal should have been under O. 17, R. 2 and the application was, therefore, tenable, and without calling for evidence and merely relying on the affidavits filed on behalf of the plaintiff, restored the suit to file on 23-6-51. It is this order that is challenged.

4. The applicant contends that the order passed on 7-5-51 was properly under O.17, R. 3 and therefore, no application for restoration of the suit to file was tenable. The point for determination is whether the order should have been under O. 17, R. 2 or R. 3, Civil P. C. Rule 2 runs as below.

"Where, on any day to which the hearing of the suit is adjourned, the 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 by O. 9 or make such other order as it thinks fit."

It would thus appear that the first essential, which the Court has to look into while dealing with R. 2, is the appearance of the parties. If the parties or any of them are or is absent, the Court can proceed to dispose of the suit in the modes available under O. 9. The crux of the question, therefore, is whether the party or parties was or were present in Court. Rule 3 of the order runs as below :

"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."

It would thus appear that the provisions of this rule are to be followed in the presence of the parties or party to whom time has been allowed. If the party or parties, to whom time has been allowed is or are absent, it is not this rule that is to be followed, but it is the R. 2 that is to be looked to. The wording of these two rules makes it perfectly clear that the one is exclusive of the other. Rule 2 applies when the party is absent i.e. does not appear while R. 3 applies when the party is present. In the case of the plaintiff his non-appearance would lead to the application of R. 2 and not R. 3 and, therefore, the suit was liable to be dismissed under O. 17, R. 2, on 7-5-1951, when it was fixed for hearing.

5. It is contended that on 7-5-1951 if the plaintiff had appeared and his witnesses were absent and the cost had not been paid, then the order would have been under R. 3 of O. 17 and therefore, he should not be placed in a better position by his non-appearance on that date and therefore, should not be allowed to take advantage of an application for restoration. This contention loses sight of the fact that if the plaintiff had appeared, it would have been possible for him to produce his witnesses or to explain their absence and could have paid the cost as ordered at the previous hearing. The contention therefore, is not sound. In Abdul Karim v. Ratilal Gujrati, AIR 1930 Nag 152, it is held that :

"Rules 2 and 3 are mutually, exclusive. Rule 3 contemplates the presence of parties and only deals with a case where such party being present has failed to produce his evidence or to take any other steps laid down in the rule. Rule 2 applies in the case of the absence of a party or parties whether or not time has been granted to them to do any of the acts laid down in R. 3."

In Ko Tha Lin Bwin v. Ko Hla Kye, AIR 1930 Rang 270, the same principle is accepted. It may be pointed out that both these cases were of an application for setting aside an ex parte decree, but the principle as laid down in AIR 1930 Nag 152, holds good. The decision in Madan Gopal v. Budhu, AIR 1932 Lah 477, follows suit. In Rukmansa Rajansa v. Shankargouda Basan-gouda, AIR 1941 Bom 83, it is observed that :

"Where a case is adjourned under O. 15, R. 3 for the production of evidence and the plaintiff fails to appear on the adjourned date, the Court under O. 17, R. 2 is bound to dispose of the matter under O. 9, R. 8, Civil P. C., or else to grant an adjournment. It is not open to it to dispose the case on merits in the absence of evidence. Order 17, R. 3 has, however, no application to such a case."

This decision has been approved in Basalingappa Kushappa v. Shidramappa Irappa, AIR 1943 Bom 321 (FB). In the circumstances, in my opinion, the order that could be passed on 7-5-1951 in the absence of the plaintiff at the date of the adjourned hearing could be only under R. 2 of O. 17 and not R. 3 of the said order.

6. It was then contended that when the Court had passed an order under R. 3, it could not correct its own error and treat it as an order under R. 2 and entertain an application for restoration of the suit to file and that an appeal and not an application to restore the suit was tenable. On the opposite side, reference is made to Basayya Ayappa v. Allayya Maharudrayya, AIR 1925 Bom 328, where it is observed that :

"If a party fails to appear at an adjourned hearing, the proper order for the trial Court to pass is one under R. 2 and not under R. 3 but if it proceeds under R. 3 and dismisses the suit on merits, it is the trial Court and not the appellate Court which can consider if the plaintiff had sufficient cause for non-appearance."

I have perused this case and it appears that no consideration is made of the law that a Court could not review and correct its own order unless, it falls within the ambit of O. 47, R. 1, Civil P. C. The judgment is too short to admit of any discussion on the relevant question. The decision in Raja Singh v. Manna Singh, AIR 1940 All 217, refers to an order under R. 3 of O. 17, Civil P. C., read with R. 13 of O. 9. In that case, the Court had remarked that it was proceeding under O. 17, R. 3 in the absence of the defendant. It was held that an application, to set aside an ex parte order, was tenable under R. 13 of O. 9. In my opinion, this decision cannot help in view of the existence of the specific provision of R. 13 of O. 9. Reference is then made by the non-applicant to the decision in Venkataratnam v. Apparao, AIR 1948 Mad 80, where it is observed that :

"Where the Court has proceeded under O. 17, R. 3 and dismissed the suit on merits, the plaintiff can either appeal against that decision or proceed under O. 9, R. 9."

This again, as the case in AIR 1925 Bom 328, does not consider the question of the Court reviewing and correcting its own order. The judgment is too short and does not contain discussion or consideration of the incapacity of the Court to review and correct its own order. In Udai Ram Gopi Ram v. Raghuraj Singh Khubchand, AIR 1944 All 211, it is laid down that :

"No doubt it lies with the Court to decide the case on merits on the postponed date of hearing, but the absence of the party or his failure to produce evidence must be without reasonable excuse. Once the Judge has passed the order under R. 3 and not under R. 2, he has no jurisdiction to set it aside."

I have considered the whole question in the light of the contentions and in my opinion, the Court having once applied its mind to the circumstances of the case and rightly or wrongly decided it, it is not for that very Court to correct its own mistake as the learned Subordinate Judge seems to have done in the case on hand. It is, no doubt, true that the order should have been under R. 2 and not R. 3 of O. 17, but in my opinion, it was not for that Court to correct its own mistake and treat the order under a provision different from the one expressly mentioned by it in its own order. In the circumstances, in my opinion, the remedy of the plaintiff in the case was by an appeal and not by an application for restoration of the suit and the application, therefore, did not lie.

7. It was then contended that the order is improper as no opportunity was given to the defendant to adduce evidence in rebuttal and the affidavit filed by the plaintiff along with the application could not be relied upon. A perusal of the written statement filed by the defendant clearly shows that he challenged the tenability of the application as a preliminary ground and sought the Courts decision on that point, clearly indicating that on the decision of the preliminary objection he might adduce evidence to rebut the facts alleged by the applicant-plaintiff. It was, therefore, improper for the Court to proceed to decide the application on merits without hearing the evidence on both sides. It appears that some time till 23-6-1951 three additional affidavits were filed by the plaintiff on record. These three affidavits are by different persons sworn to facts in exactly similar expression. It was not the Court who had called for these affidavits. No affidavit was called from the defendant to counter the allegations. In the circumstances, the Court could not, either under O. 19, R. 1, or R. 2, act on these affidavits filed on record. In fact it is not known when the three affidavits, sworn in by different persons, were filed on record. The learned counsel for the non-applicant refers to the decision in Shib Sahai v. Tika, AIR 1942 Oudh 350, where it is observed that :

"It is open to a Court on sufficient grounds to allow proof of facts by means of affidavits. Therefore in an application by the plaintiff for setting aside a dismissal of his suit for default, the affidavit filed by him along with his application can be used as evidence on the facts alleged therein and it cannot be rejected merely because there had been a verbal denial by the defendant without any attempt to controvert it by a counter affidavit or without asking for the attendance of the plaintiff for the purpose of cross-examination.

It would, however, appear that in that case an opportunity was given to the defendant to counter the allegations in the affidavit of the plaintiff and he had not availed of it. In the case on hand, no such opportunity was given to the defendant and the case was adjourned from 11-6-1951 to 13-6-1951 only for arguments on the preliminary objection to the tenability of the application itself, particularly when the defendant had reserved his right to adduce his evidence in rebuttal of the affidavit filed by the plaintiff. The decision of the Oudh Court above referred to, therefore, is liable to be distinguished. In the case on hand the application for restoration of the suit could be sent back for reconsideration after affording an opportunity to the defendant to adduce evidence. As it has been, however, held that the application itself was not tenable in law, it is not proposed to send back the case to the lower Court.

8. The next contention of the applicant is that the grounds for non-appearance of the plaintiff were not proper and sufficient. This is a contention which could be decided only after the facts in the application were held proved after evidence, on both sides and as such it is not possible to decide this question.

9. On the other side the non-applicant contends that the defendant cannot challenge the order of the lower Court as he had received the cost for the restoration of the suit and reference is made to the decision in Mohammed Siddique v. Nandkishor, civil Rev. No. 12 of 1951, dated 1-10-1951 of the Judicial Commissioners Court. The decision is before me and it refers to the decision in Venkatarayudu v. Rama Krishnayya, AIR 1930 Mad 268, where the principle of estoppel was applied to the circumstances in the case then on hand. It would, however, appear that in the present case, the order of the lower Court was that the applicant shall pay not only a sum of Rs. 25 already awarded to the non-applicant but a further sum of Rs. 10 in addition, the Court observing that the application was allowed subject to the payment of the above cost. The plaintiff deposited not a sum of RS. 35 but only a sum of Rs. 30 on 12-7-1951 and the amount was withdrawn by the non-applicant on 19-7-1951. The plaintiff, therefore, had not himself complied with the order of the Court dated 23-6-1951 in the matter of the payment of cost awarded to the non-applicant. It was urged that in a previous order dated 17-2-1951 in the suit, he was awarded cost of Rs. 5 to be paid by the non-applicant and therefore, that amount not having been paid, was deducted from the sum of Rs. 35 and the balance was deposited on 12-7-1951. In my opinion, no such accounting could be made in order to get over the specific order for cost to be paid by the plaintiff to defendant 1. In the circumstances, the plaintiff himself not having complied with the order passed by the Court, could not seek to estop the defendant from challenging the order of the lower Court on the principle of estoppel as laid down in AIR 1930 Mad 268.

10. The result is that the application for restoration of the suit to file, was not tenable in law and the revision is thus allowed with costs against non-applicant 1 who shall bear his own costs. The order, setting aside the dismissal of the suit and restoring it to file, is, therefore, set aside. Counsels fees in this Court will be Rs. 30 for each side.

Revision allowed.