1. This is an appeal by the plaintiff whose suit has been dismissed by the Court below under Order 17, Rule 3, Civil P.C. The suit was for possession of a temple, called the temple of Sri Gopalji Maharaj, situated in Brindaban, together, with the properties appertaining thereto and for the declaration that the plaintiff, was duly appointed mahant of the temple and that defendant 1 was not entitled to the office of mahant. The defendant, Madan Mohan, denied that there was any gaddi or that there was any mahant. He pleaded that one Salig Ram had dedicated his personal properties to an idol installed in that temple and that the only office connected with the temple was that of shebait or pujari. The plaintiff claimed by succession to one Gokul Das who died, according to para. 12 of the plaint, in the year 1926. The suit was filed on 2nd December 1935, more than 9 years after the accrual of the alleged right of the plaintiff. The case came up on 11th January 1937 and on an application made by the defendant the date for final hearing was altered to 8th February 1937. On 5th February 1937, an order was passed by the Court below stating that 8th February 1937 had been declared a holiday and that the case be fixed for 1st March 1937 for final hearing. On 16th February 1937 both the parties made a joint application which is as follows:
In the above-mentioned suit it is submitted that the Court had fixed 5th February 1937 for hearing in this suit but owing to the assembly elections the said date was declared as a holiday. Hence the parties did not get the witnesses summoned for that day. The Court has now fixed 1st March 1937 for hearing. The parties have to summon witnesses from out stations and they cannot be summoned to appear by the said date. It is therefore prayed that some other date after March 1937 may be fixed so that the parties may have sufficient time to summon and produce witnesses.
2. On this the Court passed an order on the same date in these words: 'Date altered to 15th March, at the request of parties.' The plaintiff did nothing for over a fort, night and it was only on 4th March 1937 that he made an application for summoning three witnesses. On 11th March 1937, only four days before the date fixed for the final hearing of the case and for the production of evidence for which time had been granted to both parties, the plaintiff filed another application for summoning fourteen witnesses. On 15th March 1937, a telegram despatched from Jaipur was received by the learned Additional Civil Judge who was seized of the case purporting to be from the plaintiff. It appears that the plaintiff had engaged two counsel, Pandit Kumar Krishna and Pandit Eadha Krishna Sharma, to appear, act and plead for him. When the case was called on for hearing, the counsel for the plaintiff stated that they had no instructions. They contented themselves merely with this statement and made no further application or statement. No reason was given for the failure to proceed with the case. It does not appear why the learned Counsel could not examine the witnesses that had been summoned and why it was necessary that the plain, tiff himself should be present. The Court below thereupon took up the case and recorded such evidence as was produced on behalf of the defendant. It also perused the documentary evidence filed by the defendant. The pairokar of the defendant filed an affidavit stating that he had seen the plaintiff, Narain Das, on the previous evening at Brindaban. The Court could not take any action on the telegram which had been received. There being no application for adjournment, nor any explanation as to why counsel stated that they had no instructions, the Court proceeded to consider the case on the merits and, believing the evidence produced by the defendant, it dismissed the suit, holding that Rule 3 of Order 17 of the Code was applicable to the case.
3. Learned Counsel appearing for the plaintiff-appellant has argued that the Court was wrong in proceeding under Order 17, Rule 3 of the Code and has urged that it should have proceeded under Rule 2 of that Order. His contention is that as the application of 16th February 1937 had been filed by both the parties and as time had been granted to both of them, Rule 3 was not applicable. He has relied on the cases in Alwar Ayyangar v. Seshammal (1887) 10 Mad. 270, Ma Chon v. Maung Myint (1927) 14 A.I.R. Rang 148 and Bhajan Singh v. Prem Narain : AIR1936All619 . Rule 3 of Order 17 has been amended by this Court, and the amended Rule reads as follows:
Where any party to a suit, to whom time has been granted, fails, without reasonable excuse, to produce his evidence, or to cause the attendance of his witnesses, or to comply with any previous order, or to perform any other act, necessary to the further progress of the suit, for which time has been allowed, the Court may, whether such party is present or not, proceed to decide the suit on the merits.
4. This amendment came into force in December 1926. In view of the language of this Rule, we find it difficult to accept the argument of the learned counsel. There can be no question that by the order dated 16th February 1937 on the application, which we have quoted above in extenso, time had been granted, to both parties to produce their evidence. The fact that time had been granted to both parties cannot, in our opinion, make the Rule inapplicable. If time is granted to two persons to enable them to take steps for the prosecution of their respective oases, it is also granted to each of them. The fact that instead of filing two separate applications, they file one joint application and save court-fee, and the fact that the Court passes one single order granting the requests of both, cannot alter the position. It seems to us therefore that time had been granted to the plaintiff to produce his evidence and to perform other acts necessary for the further progress of the suit. The plaintiff failed to produce his evidence. He also failed to perform other acts that were necessary for the further progress of the suit. Even if we assume that the telegram sent from Jaipur was sent by the plaintiff, there is no explanation why no telegram was sent to the counsel appearing for the plaintiff and why no proper instructions were given to them to proceed with the case. If the counsel had received such a telegram and had examined the witnesses who had been summoned and had then applied for an adjournment for the examination of the plaintiff, we have no doubt that the Court would have granted the application. But no such instructions were evidently given to the counsel.
5. It may also be pointed out that the bald statement made by the counsel that they had no instructions was not sufficient, and reference may be made to the observations made in Lachhmi Narain v. Shanker Lal : AIR1936All670 . The Madras and the Rangoon rulings cited by the learned Counsel are not applicable because the language of Rule 3 of Order 17 substituted by this Court differs materially from the language of the Rule as it originally stood. The new Rule makes it perfectly clear that in the circumstances of the case before us the Court has ample power to proceed to decide the suit on the merits whether the party who has failed to do that for which time had been granted to him is present or not. For the same reason, oases of type of Ram Adhin v. Ram Bharose : AIR1925All182 which was decided in 1924, are not applicable. In Bhajan Singh v. Prem Narain : AIR1936All619 the real point that arose for decision was whether the filing of a list of witnesses on behalf of the defendant before the case had been called on for hearing did or did not amount to an appearance of the defendant within the meaning of the Explanation to Order 17, Rule 2. The point now raised before us, namely, that as the application of 16th February 1937 had been filed by both the plaintiff and the defendant, Rule 3 of Order 17 was not applicable, was neither raised nor considered in that case. We are clearly of the opinion that the Court below was right in holding that Rule 3 was applicable and in proceeding to decide the suit on the merits. The Rule of course confers a discretion on the Court. The Court is not bound to proceed to decide the suit on the merits. If the discretion has not been properly exercised in accordance with sound judicial principles, it is undoubtedly open to this: Court to interfere. We are satisfied, however, that in the present case the Court properly exercised the discretion vested in it and that no grounds for interference exist. There may be cases in which the circumstances warrant the view that Rule 2 of Order 17 is the proper Rule to apply. No such circumstances exist in the case before us. For the reasons given above, we dist miss this appeal with costs.