Andhra HC (Pre-Telangana)
Kalagara Hari Babu vs Edupuganti Krishna Rao (Died) And Anr. on 18 July, 1996
Equivalent citations: 1996(3)ALT731
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
JUDGMENT Ramesh Madhav Bapat, J.
1. The Appellant herein was the original plaintiff in O.S.No. 124 of 1985 on the file of the Subordinate Judge, Kovvur, West Godavari District. The plaintiff filed the said suit for compensation from the defendants-respondents herein for using defamatory words against the petitioner herein. The said suit was dismissed for default. Therefore, the appellant herein filed an application I.A.No. 1063 of 1994 in the same Court for restoring the suit to file under Order 9 Rule 9 C.P.C. after setting aside the default order dated 15-9-1994. It appears from the record that the said application was dismissed by the learned Subordinate Judge, Kovvur. Against the said order, the present appeal has been filed by the appellant herein.
2. It appears from the record that the suit was fixed for hearing after adjourning the same (on) two or three occasions and the appellant herein was directed to lead evidence, but the appellant herein refused to lead evidence and therefore the learned Judge dismissed I. A. No. 1063 of 1994 with the following observations:
"The suit is of the year 1985. The suit was being adjourned at the request of parties and also on petitions. On 15-6-1994 the suit was adjourned on petition. On 17-6-1994 the plaintiff was present but he did not proceed with the trial. Hence the suit was dismissed with costs. It shows that the plaintiff was not willing to proceed with the suit at that time. There are no grounds to set aside the dismissal order."
3. The learned counsel Mr. P. Girish Kumar appearing on behalf of the appellant herein submitted that the order passed by the learned Judge is an order under Order 17 Rule 2 C.P.C. and therefore the suit can be restored under Order 9 Rule 9 C.P.C. and the learned Judge ought to have restored the suit to file. While rebutting the aforesaid arguments, the learned counsel for the respondents herein submitted that the order passed by the learned Judge is not an order under Order 17 Rule 2 C.P.C. but it is an order under Order 17 Rule 3 C.P.C.
4. In order to appreciate the controversy between the parties, it is necessary to extract Order 17 Rules 2 and 3 C.P.C.
"Order 17 Rule 2 Procedure if parties fail to appear on day fixed:
2. 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 Order IX or make such other order as it thinks fit.
Explanation:- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceeded with the case as if such party were present Order 17 Rule 3: Court may proceed notwithstanding either party fails to produce evidence, etc.
3. 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-----
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under Rule 2."
5. The learned counsel appearing in behalf of the appellant herein invited my attention to Explanation to Order 17 Rule 2 C.P.C. which is Andhra Pradesh Amendment which reads as under:
"The mere presence in the Court of a party or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of the Rule."
6. The learned counsel with this Explanation to Rule 2 of Order 17 C.P.C. submitted that though the appellant herein refused to lead evidence, the order of dismissal amounts an order under Order 17 Rule 2 C.P.C. and not under Order 17 Rule 3 C.P.C.
7. In order to substantiate the contention, the learned counsel for the appellant herein invited my attention to the ruling reported in M. Agaiah v. Mohd. Abdul Kareem, (F.B). It has been laid down by the Full Bench of this Court as follows:
"Where a party who is granted time to perform some act not only fails to do it but is also absent on the date to which the hearing is adjourned it is Rule 2 and not Rule 3 that applies. Rule 3 comes into operation only where the parties are present and are prepared to proceed with the further hearing of the case but default of the kind mentioned in that rule is committed."
Their Lordships further held:
"When a suit is dismissed under Order 17 Rule 2, the appropriate remedy of the aggrieved party is an application for restoration of the suit and not for review."
8. The learned counsel for the appellant herein also relied upon a ruling reported in M. Gurunatha Rao v. B. Ramamurthy, . In para 5 of the Judgment, it is laid down by their Lordships as follows:
"In the present case, admittedly, on 19-7-1961 to which date the case was adjourned for arguments, neither the plaintiff nor his Advocate was present. So, on the authority of the Full Bench rulings, the Court should have proceeded to act under Rule 2 of Order 17 and should not have decided the case on the merits purporting to proceed under Rule 3 of Order 17. But so far as our State is concerned, it is no longer necessary to rely on the decided cases to determine whether Rule 2 or Rule 3 of Order 17 applies in a given case. Rule 3 of Order 17 has been amended and a proviso has been added with effect from 27-4-61 and it reads:
Provided that in a case where there is default under this Rule as well as default of appearance under Rule 2, the Court will proceed under Rule 2."
This Court holds that the rulings cited above have no application in the present set of facts. In the rulings cited above, the case had reached upto the stage of arguments. In the present case, the plaintiff had yet to open his side by giving evidence. At that stage itself the plaintiff refused to lead evidence. The order passed by the learned Subordinate Judge goes to show that since there was no evidence on behalf of the plaintiff, the case should not be dismissed for default under Rule 2 of Order 17 but it should be dismissed under Rule 3 of Order 17 C.P.C. holding that the plaintiff could not prove any averments made in the plaint.
9. The learned counsel for the appellant herein also relied upon a ruling reported in Marothu Surya Rao v. Paluri Peddiyya and Ors., . In the said ruling the facts were different. It has been observed by the learned Judge of this Court as follows:
"Order 17 Rule 3 C.P.C. does not apply to a case where a party appears merely for the purpose of seeking an adjournment, after the refusal of which, whether he goes out of although remains present does not participate in the hearing of the case, in either case he would be considered as not present. Any decree passed in these circumstances would not be deemed to have been passed under Order 17 Rule 3. It would be a contradiction in terms to hold that the person who absents or says that he does not appear, does in fact appear. The Courts below, therefore, have erroneously held that the present case falls within the ambit of Order 17 Rule 3 C.P.C. An application under Order 9 Rule 13 C.P.C. therefore is maintainable."
10. The facts relied in the above case are quite different as compared to the present facts. It is not disputed that the case was adjourned at the instance of the plaintiff on two prior occasions and the plaintiff was given to understand that on the next date of hearing he will have to lead evidence. In spite of giving this opportunity, the plaintiff refused to lead evidence on one pretext or the other. The reason put forward by the plaintiff did not convince the Subordinate Judge and therefore he proceeded to dismiss the suit Under these circumstances, it must be held that the order of dismissal by the learned Judge will fall within the ambit of Order 17 Rule 3 C.P.C. This Court has come to the aforesaid conclusion for the reason that the Court would not function at the mercy or the courtesy of the parties. The discipline in the Court has to be maintained and therefore the learned Judge passed the order of dismissal which has to be interpreted as an order under Order 17 Rule 3 C.P.C. and not under Order 17 Rule 2 C.P.C.
11. The learned Counsel for the appellant also relied upon four more rulings reported in Thummala Suryamma v. The Andhra Pradesh State Electricity Board and Ors., ; B. Seshagiri Rao v. Sri Ramalingeswara Swamivaru Devasthanam, Nadigampadu rep. by its Managing Trustee, 1987(1) ALT 80; Dena Bank, Bank Street, Hyderabad v. Industrial Times, A Registered Partnership Firm, rep. by its Managing Partner, P.D. Desai and Ors., and Pugal v. Kamala and Anr., . Those rulings are also considered by this Court and this Court is of the firm view that the order passed by the learned Judge is an order under Order 17 Rule 3 C.P.C In that event, the only remedy available to the appellant was to file a regular appeal in the Appellate Court at the first instance and not to move the same Court which dismissed the suit by filing an application under Order 9 Rule 3 (sic. 9) C.P.C
12. Considering the facts on record, this Court holds that there is no merit in the appeal and it is accordingly dismissed. No costs.