Madan Mohan Punchhi, J.
1. Is the Court in a civil trial obliged under O. XVII, R. 3, Code of Civil Procedure, to condone the lapse of a litigant in case it cannot and justifiably will not decide the case there end then, the same day. is the precedent broiled question which requires to be settled in this petition.
2. It arises in this manner;
The dispute between the parties pertained to the estate of one Punjab Kaur. The respondents herein filed an application under Section 372. of the Indian Succession Act, before the Sub-Judge Ist Class, Bassi, who had the necessary powers to entertain it, The petitioner herein was arrayed as a respondent. It appears that the applicants-respondent. had concluded their evidence and the case was at the stage of the evidence of the petitioner. On the adjourned date on 11-8-19 3, the trial Court closed the evidence of the petitioner under O. XVII, R. 3, Civil Procedure code, and adjourned the case further to 22-B-1983 to rebuttal and arguments. Such order was passed on the view that the petitioner had availed six dates for evidence and had not concluded it as also that he was not even present in Court to make statement in support of hie case. From such conduct. the trial Court recorded the opinion that the petitioner had failed to take further steps for the progress of the case and thus ultimately it had to close his evidence. The said order is now under challenge.
3. The matter was placed at the motion stage before B. S: Yadav, J. The Hon'ble Judge finding the petitioner's counsel relying upon State of Punjab v. R:' a Kishan (1978) 80 Pun LR 454 and the respondents' counsel upon Ishwar Dutt v. Smt. Dilbhari (1979) 81 Pun LR 35 in which the correctness of the aforesaid case of Radha Kishan. was doubted, admitted the case to a Division Bench. And this is how the matter has been placed before us.
4. Learned counsel for the petitioner relied on the decision of R. S. Narula, J. in Smt. Dakhri v. Munshi, (1989) 69 Ptm LR 149. wherein Order l7. Rule 3. Civil Procedure Code. was interpreted in this manner:
The provisions of the above quoted Rule are penal in character, and unless the Court concerned decides to follow the same in an appropriate case, it cannot adopt a via-media........ In my opinion the learned Additional District Judge was correct in holding that once the Subordinate Judge did not proceed 'to decide the case forthwith, Order I7, Rule 3 of the Code had no application to the matter and that the Subordinate ' Judge having. adjourned the case, 'he should have allowed another opportunity to the plaintiffs to lead their evidence on the date of adjourned hearing.'
This view was followed by D. S. Tewatia, J. in Basaut Kxur v. Smt. Gurdyala (1975) 77 Pun LR 772 by observing that in the event of the case instead of being decided, is adjourned by the trial Judge, the defaulting party should be entitled to produce its witnesses on the adjourned date, This again was followed by Gurnam Singh, J. in Radha Kishen's case (1978-80 Pun LR 454) (supra) by taking the view that if else a rit is decided forthwith no fault can be found with the order but if the Court does not proceed to decide the case forthwith and adjourns it, it shall have to allow another opportunity to the defaulting party for its evidence on the adjourned date. In Dilbhari'c case 1979-81 Pun LR 35) (supra). M. R. Sharma, J., doubted the rule laid down in Smt. Dakhri's case (1%7-B9 Pun LR 149) (supra) and followed subsequently, by observing as follows:
'A plain reading of this rule shows that it vests the Court with the discretion to decide or not to decide the case forthwith It nowhere provides that where a party has been given a large number of adjournments to adduce proof in support of its case its evidence should not be closed and it the case cannot _ be finally decided for one reason or the other on that date the party concerned must of necessity be allowed to produce evidence on the adjourned date of hearing. In my considered opinion if this view is allowed to prevail it would tend to unnecessarily lengthen the procedure in trial of the cases. For that reason I was initially inclined to refer this case to a larger Bench but the facts disclosed by Mr, Sarin are somewhat different........,
5. We have heard the learned counsel for the parties at length and have pondered over the matter. What should be the correct interpretation of O. 17, R. 3, Civil procedure Code, can well be gathered from our judicial system relating to the trial of civil cases, the spirit of the Code of Civil Procedure, and the language of the provision in question.
6. As is well known, a civil trial in this country is an adversary proceeding and the Judge an independent arbiter. This is a concept basic to the system that 'sets the parties fighting', In essence, the Judge's task is umpiring of a competition which is found sometimes a grim game. During the trial, the Judge has to handle many problems which may arise. He is given, or practically he is expected to be in complete charge of court room procedure and as such possesses considerable residue of what in legal parlance is termed 'judicial discretion. That discretion demands an application of his intelligence and learning knowledge of law, courage, and other enlightened faculties in order to do what is just and proper in the circumstances of the case, The large mass of provisions, orders and rule embodied in the Civil Procedure Code though guiding him in that direction, leave at specific point considerable discretion to him to further justice. It has often been repeated that all ruled of procedure an nothing but hand-maids of justice. They cannot be construed in a manner which would hamper justice. In this back-drop it is to be been that O. XVII, in the Civil Procedure Code, providing for adjournment, has just three. Under R. 1 the Court an grant time and adjourn the hearing of the suit as also make order with respect to costs. Under R. 2 it a party fails to appear on a date to which the hearing of the suit is adjourned, the Court may proceed to disclose of the suit in one of the modes prescribed in that behalf by O. A, or make such other order as it thinks At, Explanation added thereto by the Civil Procedure Code (Amendment) Act 1976 empowered the Court to treat the party which failed to put in appearance as deemingly present if its evidence, or substantial portion of the same, has already been recorded. In that back-drop R. 3 follows, which may well be reproduced here:
'Where any party to a suit to whom time has been granted tails 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.'
7. As is plain from the language of the rule and its set up, the stage for its employment arises on an adjourned hearing when a party to a suit took ample time to produce its evidence, or cause the attendance of his witnesses, or perform other necessary acts to further the progress of the suit. With the aid of the explanation to R. 2, a party absent can be treated as a party present where the evidence, or a substantial portion of the must be held to have been 5o done, when same, has already been recorded. And that situation, treating a party to be pre-and without avoidable delay.' sent, the Court can proceed to decide the suit forthwith. Not the word 'forthwith, are providing that the word 'forthwith' has been understood to mean there an then, the same day, in Smt. Dakhri' case (1967-69 Pun LR 149) (supra) an in the decisions which followed that case But in our view, that is not the meaning observations of Bhat J., the facts and of forthwith' as appearing in the rule It is true that the word 'forthwith' i often interchanged for 'immediately' but in the context of the rule, this is not the meaning which would further the purpose of the rule. It would rather be to decide the suit forthwith'. In our strict and such cannot be the construction to be put in the rule. Inevitably even to decide a case there and then, the day the Court takes the effective step by. Court would require time inherent in the suit. The words of J. N. Bhat, J, in Hari ram v. Krishan Lal, AIR 1964 J & K 79 are meaningful.
'Order 17, R. 3 'is a general provision quire to decide Nothing stops the Court of law which can be made applicable to any case. Order 17, R. 3 contemplates final disposal of the suit on the material that is on record on that day, Therefore, a reasonable construction of this rule would suggest that from the action of the court it should transpire that the court does not want to have any further hearing of the case but has made to its mind to dispose of the case on the material that is already on record al that time and must, as the dictionary meaning to put it, try to dispose of the raise within a reasonable time and without delay.' Sansnath Tripathi v, Tripathi Bhagwal Nath AIR 1966 Al1 615 is also a precedent on the same lines.
In the l2th Edition of Maxwell on the Interpretation of Statutes, it has been stated thus:
'Sometimes a statute requires an act to be done 'forthwith' or 'immediately', 'forthwith' Harman L. J. has said, is not a precise time and, provided that no harm is. done, 'forthwith' means any reasonable time thereafter...,....It may involve action within days; it may not involve action for years.'
8. In K. N. Joglekar v. Commr. of Police, AIR 1957 SC 29, their lordships after summing up a number of decisions on that aspect observed (at p. 31):
'On these authorities, it may be taken, an act which is to be done forthwith it is done with all reasonable despatch and without avoidable delay.'
9. Practically most of the dictionaries means 'within a reasonable time', and what is reasonable time must be determined on the facts of each case. And in the light of the extracted portion of the circumstances of each case would alone a determine what was the reasonable time t taken to decide a particular case. The e language of the provision is not 'to--decide the suit forthwith' but 'proceed view, the pivotal word in the rule is not 'forthwith' but 'proceed'. It is on that manifesting on the record of the ease that due to default of a party, it is proceeding towards the next step in order to decide the.suit forthwith, that is from entering upon a summary judgment. if it is feasible, by settling or declaring the rights of the parties on the material then existing on the referred. But it would he going out of the text to. read therein that if the plaintiff had 'led a substantial portion of the evidence and a small bit it had been left to led on the adjourned date, the Court in proceeding to decide the suit forthwith, shall shut out the evidence of the defendant and decide the suit in favour of the plaintiff. In such a position, the Court would be within its rights to close the evidence of the plaintiff and proceed to examine the evidence of the defendant; if it was required to be present, and take such other steps to further the progress of the suit as in its judicial discretion are necessary, But to say that in observance of Smt. Dakhri's case (1967-B9 Pun LR 149) (supra) the Court,shall either adjourn the case for evidence of the plaintiff or decide the case there and then that day, on the substantially recorded evidence of the plaintiff alone would be nailing down justice. It is worth repeating that the Court as an umpire in such a situation then knows that one of the parties, though given an opportunity to fight, has failed to fight or has stopped fighting any further. As a good umpire, it is then to take the next step towards winding up of the game, but not in the process causing injustice to the other adversary who is yet in the arena,
10. Thus; for what has been observed above. we are of the considered view that the doubt expressed by Sharma, J. in Jahwar Dutt's cesr.(1979-81 Pun LR 9S) (supra) was rightly entertained and the view taken in Smt. Dakhri's. case (supra) is not around in law. We, hereby overrule Smt, Dakhd's ease (supra) and other cases which followed that view. thus to conclude, we hold that the Court in a civil trial is not obliged under O. I7, R. 3, Civil Procedure Code to condone the lapse of a litigant and it is equally ' not obliged to decide the case there and then the same day, but can in its around judicial discretion proceed to take the next step towards decision of the case as expeditiously as possible, within a reasonable time, the circumstances of the case require.
11. Now applying that principle, we act, rightly did the Court close the evidence of the petitioner, for he neither brought hie evidence nor put in appearance himself. Learned counsel for the petitioner maintains that there were two witnesses whose prosecution and diet money had been paid by him in time but service had not been effected for the date fixed. He Contends that the petitioner was not at fault on this score. We find that there is no mention to these particulars in the impugned order. There is equally no denial from the respondents in that regard. Lest there be any prejudice to the petitioner on. that score, by set aside the impugned order and direct the Court concerned to pass a fresh appropriate order keeping to view the situation as it then existed on the date when the impugned order was passed, in the light of the observations made heretofore.
12. This petition is accordingly accepted but without any order as to costs. Parties through their counsel are directed to put in appearance before the Court concerned on February 22, 1984.
Rajinder Nath Mittal, J.
13. I agree.
14. Revision allowed.