Bombay High Court
Central Bank Of India vs Smt. Kamalabai And Others on 23 August, 1989
Equivalent citations: AIR1990BOM227, 1990(1)BOMCR246, AIR 1990 BOMBAY 227
ORDER
1. The applicant had filed the Civil Suit for recovery of certain sum against the non-applicants. The suit was fixed for evidence on 21-2-1984. However, on that day, the applicant's counsel asked for an adjournment and the case was accordingly adjourned to 11-4-1984. The representative of the applicant Bank was serving at Nagpur. He could not keep himself present in the Court at Saoner at 11.45 a.m. when the case was first called. According to the applicant, the representative had already left for Saoner, but he could not reach there because he did not get the bus. He could reach there only at about 1.30 p.m. However, on reaching the Court, he came to know that the suit was already dismissed in default. Hence this revision.
2. The impugned order is passed under S. 17, R. 3 of the Civil Procedure Code, Mr. Daga contended that as the suit was dismissed in default, the order could not be under O. 17, R. 3, C.P.C. Order 17, Rule3, C.P.C. refers to the decision of the case on merit. He has also relied on the two decisions of this Court in Namdeo v. Motilal, and an order in A. S. Mani v. Dattatraya Ambadaspant Markandey in Civil Revn. Appln. No. 154 of 1983 decided on 31-3-1983. Both these decisions full support the contention of Mr. Daga. Nobody appears on behalf of the non-applicants.
3. The provisions of O. 17, R. 2 read as under :
"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."
4. The relevant Rule with which we are concerned is R. 8 of O. 9 under which the trial Court could have proceeded. R. 8, O. 9 reads as under :
"Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
5. Mr. Daga has further contended that since the impugned order is passed under O. 17, R. 3, he has been deprived of the remedy under O. 9, R. 12 of appearing before the trial Court and showing cause for his absence. There is much substance in the contention of Mr. Daga. Moreover, it does not appear from the impugned order that the applicant was absent on earlier occasions. Having regard to these facts, the revision is allowed. The impugned order is quashed and set aside. The case shall be sent back to the trial Court for recording evidence. No order as to costs. It is needless to state that the suit be decided as expeditiously as possible.
6. Revision allowed.