Madhya Pradesh High Court
Late Aruna Devi Bajaj Thr. Her Legal ... vs The State Of Madhya Pradesh on 29 June, 2017
-1- S.A.No.649/2016
HIGH COURT OF MADHYA PRADESH, JABALPUR
Second Appeal No.649/2016
APPELLANTS : Late Aruna Devi Bajaj,
through her legal representative
Motilal Bajaj,
S/o Late Shri Pannalal Bajaj,
aged about 42 years,
R/o Motibag, Mai Nadi Katni,
Tahsil and District Katni (M.P)
-Versus-
RESPONDENTS :1. State of Madhya Pradesh,
Through Collector Katni,
District Katni (M.P.)
2.
Mining Officer,
Mining Branch Katni
District Katni (M.P.)
_________________________________________________
Shri Sankalp Kochar, Advocate for the appellant.
Shri Divesh Jain, Government Advocate for the
respondents/State.
PRESENT : Hon'ble Shri Justice Anurag Shrivastava.
Whether approved for reporting: Yes/No.
JUDGMENT
(29.06.2017) The appellant/plaintiff has preferred this Second Appeal under Section 100 of C.P.C. being aggrieved of the judgment and decree dated 01.11.2013, passed by District Judge, Katni, in Civil Appeal No.31-A/2012 arising out of judgment and decree dated 03.08.2012, passed by First Civil Judge, -2- S.A.No.649/2016 Class-I, Katni in Civil Suit No.90-A/2011, whereby the appellate Court dismissed the First Appeal preferred by the plaintiff against the judgment and decree of trial Court dismissing the suit of plaintiff under Order XVII Rule 3 of C.P.C.
2. The case of appellant is that the original plaintiff namely Smt. Aruna Bajaj had filed the Civil Suit No.90- A/2011 before the trial Court for declaration that she is the holder of mining lease of disputed land bearing Khasra No.148 area 27.68 hect. situated at village Padvar Tahsil Bahoriband, District Katni (M.P.). This land is not a forest land. The order of government declaring aforesaid land as forest land is null and void and an injunction be issued against the defendants restraining them to interfere with possession of the plaintiff over disputed land.
3. It is further averred by the plaintiff that the above civil suit was fixed for plaintiff's evidence on 03.08.2012. The plaintiff could not appear and produce her witnesses on this date due to her personal illness, her counsel had moved an application for seeking adjournment under Order XVII Rule 1 of CPC. The trial Court had rejected the application and proceeded under Order XVII Rule 3 of CPC passed a judgment and decree and dismissed the suit of plaintiff. The original plaintiff being aggrieved by that order filed an appeal and stated that due to her illness she could not appear before the Court and prayed for quashment of the order dated 03.08.2012. The lower Appellate Court vide order -3- S.A.No.649/2016 dated 01.11.2013 has dismissed the said appeal. The original plaintiff Smt. Aruna Bajaj died on 05.07.2015, thereafter her son had filed present Second Appeal against the order of appellate Court.
4. It is submitted by the learned counsel for the appellant that original plaintiff Smt. Aruna Devi Bajaj was prosecuting the suit with utmost diligence. She had also filed the affidavits of the witnesses under Order XVIII Rule 4 of C.P.C. in order to lead her evidence. However, she suffered a cardiac attack on 06.09.2010 and thereafter epigastria hernia for which she underwent surgery. She had again suffered heart attack on 06.06.2015 and undergone bypass surgery thereafter. Therefore, since 2010 to 2015 she remained ill and unable to perform her daily routine. Due to her sickness she could not appear on 03.08.2012 and produce her witnesses. The trial Court had wrongly rejected the prayer for adjournment and proceeded against the plaintiff under Order XVII Rule 3 of C.P.C. and dismissed her suit. Learned Appellate Court has also committed illegality in dismissing the appeal preferred by the plaintiff, ignoring her illness and causes for seeking adjournment. In absence of plaintiff the Court cannot proceed under Order XVII Rule 3 of C.P.C. Therefore, impugned order and decree of Court below are liable to be set aside being contrary to law.
5. Learned counsel for the State has supported the findings of the Courts below and submitted that the appellant/plaintiff had been given more than 18 -4- S.A.No.649/2016 adjournments for producing her witnesses before the trial Court but she failed to adduce evidence without any sufficient cause, therefore, the trial Court had rightly dismissed her suit. There is no illegality in impugned order. The appeal is liable to be dismissed.
6. This Second Appeal is admitted on the following substantial question of law:-
"Whether both the Courts below have committed a grave error of law in non suiting the original plaintiff on hyper-technical ground by exercising power under Order XVII Rule 3 of C.P.C."
7. Considering the rival contention of the learned counsel for the parties and on perusal of the record, it appears that, on 29.06.2012 the trial Court had allowed the application of plaintiff moved under Order VII Rule 14 (3) of CPC for taking documents on record and fixed the case for plaintiff's evidence on 03.08.2012. On next date i.e 03.08.2012 neither the plaintiff nor her witnesses were present in the Court. The counsel for the plaintiff had moved an application under Order XVII Rule 1 of CPC seeking adjournment, which has been dismissed by the trial Court and proceeding under Order XVII Rule 3 of CPC the Court has passed the decree of dismissal of suit.
-5- S.A.No.649/20168. To appreciate the legality of proceedings adopted by the trial Court it would be proper to see the provision of Order XVII Rule 2 and 3, which reads as under:-
"2. Procedure if parties fail to appear on day fixed:- 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, proceed with the case as if such party were present.]
3. Court may proceed notwithstanding, either party fails to produce evidence, etc:-
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, of any of them is, absent, proceed under rule 2]."
9. For application of order XVII, Rule 3, it is necessary that (1) the time must have been granted upon the request of the defaulting party, (2) the adjournment granted must have been for any of the purposes mentioned to the rule, namely, to produce evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, (3) when a party is present or is -6- S.A.No.649/2016 deemed to be present, and (4) when the party has defaulted in doing the acts mentioned in Rule 3.
10. Order XVII relates to adjournments at the stage of hearing of suit. Rule 1 empowers the Court to adjourn the hearing of suit, if sufficient cause is shown to its satisfaction whereas Rules 2 and 3 both apply to an adjourned date of hearing of the suit. Rule 2 is attracted when the parties or any of them fails to appear on such a date, the Court may proceed to dispose of the suit in one of the modes given under Order IX or make such other order. Whereas Rule 3 is attracted when any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of witnesses or fails to perform the act necessary for the progress of the suit. Therefore, it is necessary to apply the provision of Rule 3 that time should have been granted to a party for any purposes mentioned in the rules and that party should have failed without reasonable excuse to take the steps for which time has been granted.
11. In the present suit, on earlier date i.e. 29.6.2012 the trial court had allowed the application of plaintiff under Order VII Rule 14 (3) of CPC and fixed the case for plaintiff's evidence on 3.8.2012. This date is not granted on the request of plaintiff. Therefore, the provision of Rule 3 of Order XVII cannot be applied.
12. Secondly, on 3.8.2012 neither the plaintiff nor his witnesses were present in the Court. In case law Rama Rao -7- S.A.No.649/2016 Vs. Shantibai and others, AIR 1977 MP 222 (Full Bench), this Court has observed in para 9 as under :-
"It follows that Rule 3 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 Rule 3 applies and it has no application to cases falling within the ambit of Rule 2. Whenever such a question arises, it has first to be seen whether Rule 2 applies to the facts of a case since on Rule 2 being attracted, the operation of Rule 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 Rule 3 would arise to the facts of a case, provided the requirements laid down in Rule 3 are fulfilled."
13. In case law Mohan Das and others Vs. Ghisiyabai, AIR 2002 SC 2436 the suit was fixed for plaintiff's evidence on 7.5.1994. On this date plaintiff and his witnesses remained absent. The counsel for the plaintiff moved an application for adjournment on the ground of illness of the plaintiff, which was rejected by the trial court and thereafter the trial court dismissed the suit under Order XVII Rule 3 of CPC. The plaintiff preferred first appeal before the appellate Court and second appeal before the High Court, both were dismissed. Thereafter, plaintiff filed appeal before Hon'ble the Apex Court, Hon'ble Court in para 3 observed as under:-
"In the present case what we find is neither the plaintiff-appellant nor his witnesses were present on 7th May, 1994. Therefore, the case has to be -8- S.A.No.649/2016 dismissed under Order XVII, Rule 2. Even Rule 3 itself provides that if the parties or any of them absent, the Court shall proceed to decide the suit under Order XVII, Rule 2."
14. In present case also, the trial court has proceeded under Order XVII Rule 3 of CPC in absence of plaintiff and his witnesses, whereas the court should have proceeded under Order XVII Rule 2 of CPC.
15. In view of aforesaid discussion, this Court is of considered view that the trial court has committed illegality by proceeding against the plaintiff under Order XVII Rule 3 of CPC in his absence. The date of hearing i.e. 3.8.2012 has not been granted on request of plaintiff.
16. The plaintiff is a lady suffering from heart disease since long time. Therefore, the grounds of non-appearance of plaintiff and her witnesses on 3.8.2012 appears to be bonafide and sufficient.
17. Thus, the appeal is allowed. The impugned judgment and decree passed by appellate court dated 1.11.2013 and the trial court dated 3.8.2012 are set aside and the suit of plaintiff is directed to be restored to its original number. The trial court is directed to decide the suit expeditiously by providing opportunity of adducing evidence to both parties.
(Anurag Shrivastava) Judge Vin**