1. This second appeal is directed against the judgment and decree of the Senior Subordinate Judge, Karnal, exercising enhanced appellate powers, by which the plaintiff-appellant's first appeal was dismissed on the ground of non-maintainability.
2. The plaintiff-appellant is the Municipal Committee, Thanesar, which filed a suit for possession of a site against defendant-respondents claiming to be its owner and alleging that it is in illegal occupation of the respondents. The suit was contested by the respondents and on the pleadings of the Parties a number of issues were framed by the trial Court. One witness of the plaintiff was thereafter examined as PW 1. On August 8, 1973, the case was adjourned to 7-11-1973 for the appellant's evidence. On the date fixed i.e. 7-11-1973, neither anyone appeared on behalf of the appellant-Municipal Committee nor the remaining evidence was led. The trial Court thereupon closed the appellant's evidence and dismissed the suit on merits holding the issues against the appellant. Although it was observed in the order 6y the trial Court that the appellant's evidence was being closed under O. 17, R. 2 of the Civil p. C. but after appraising the material on the record it was not clarified as to under what provision of law the spit was being dismissed on merits, The appellant-Municipal Committee assuming that the trial Court had dismissed its suit under O. 17, A. 3 of the Civil p. C filed an appeal which was dismissed by the lower appellate Court on arriving at a conclusion that the order of the trial Court fell under O. 17, R. 2 of the Civil P. C. which could not be appealed against. It was observed that the proper remedy was to have moved an application under O. 9, R. 13 of the Civil P. C. The legality of this decision of the lower appellate Court has been challenged in the instant second appeal.
3. The vital point for determination in this appeal is whether the impugned order of the trial Court was passed under R. 2 or under R. 3 of O. 17 of the Civil P. C. There is no dispute that an order under R. 2 is hot appealable but an order under O. 3 can 1 appealed against.
4. It will relevant to a point out here that the order of the trial Court having been passed in 1973 the provision.. of Rr. 2 and 3 of O. 17 of the Civil P. C. which were existing before the Civil Procedure Code (Amendment) Act; 1976 will, therefore: have to be looked into. The relevant provisions are quoted as under:
'O. 17. R. 2--Procedure if parties tail to appear on day fixed:
Where, on any day to which thc hearing of the suit is adjourned, thc parties or any of them fail to appear in the Court may Proceed to dispose of the suit in one of the modes directed in that behalf. by O. IX or make such. other order 'as 'it thinks fit.
Order 17, Rule 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 caste 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, proceed to decide the suit' forthwith.'
5. It is lucidly clear from these provisions that R. 2 would apply to those cases where on a date fixed the parties or any a e of them failed to appear. In that' case the Court may. proceed to dispose of the suit in one of the modes described in O. 9 of the Civil Y. C: The application of R. 3 would be in those cases where any party to a suit whom time had been granted failed to. produce evidence or to cause, attendance of his witnesses or ' to perform any other act necessary to the further progress of the suit for which time had been allowed. In such a situation the Court would be empowered to decide the suit on merits forthwith.
6. From the facts of the case narrated above there can be no manner of doubt that the trial Court had dismissed the appellant's suit under R. 3 of O. 17 of the Civil P. C. end not under R. 2 as held by the lower appellate Court. The suit was not dismissed merely in default because of the non-appearance of the appellant, but it was dismissed on merits after considering material on the record; The trial Court had decided all the issues against the appellant on the appraisal of whatever evidence was produced on the record. If the trial Court had intended to dismiss the suit under O. 17, A. 2 of the Civil p. C. it would not have classed the appellant's evidence nor decided the case on merits. The mere tact that the suit was dismissed on merits after holding the issues against the appellant would indicate that this order had been passed under O. 17, R. 3, C.P.C. which was.an appealable order.
7. The lower appellate Court persuaded itself to hold that the order of,the trial Court fell within the purview of O. 17, R. 2, C.P.C., holding the view that R. 3 applies to those cases only where both the parties appear before the Court and that R-2 would invariably apply where one of the parties is absent. given the appellant had absented on the date fixed the lower appellate Court jumped to the conclusion that the impugned order by the trial Court was necessarily under O. 17, R. 2, C.P.C. In arriving at this conclusion reliance was parted by the Court on the judgment in P. Govinda Menon v, Visalakshi Amma, AIR 198g Ker 99. The view taken by the Kerala High Court in that judgment was that the distinction between O. 17, Rr. 2 and 3 is that in order that O. 17, R. 2 should apply, a party or his pleader should not be present in Court, whereas in the case of O. 17, R. 3, even it the party or his leader is present in Court if there is a failure to produce evidence, to cause the attendance of witnesses or to perform any other act necessary to the further progress of the suit O. 17 R. 3 applies. It appears that the learned lower appellate Co has not been able to appreciate this view. It is not the ratio of the judgment that in order to apply R. 3 the parties must be present before the Court. The words used are 'even, if the party or his pleader is present in Court.' A perusal of R. 3 would show that the provision is silent as to whether the defaulting party should be present or absent. The only conditions necessary for the purpose of satisfaction of R. 3 are that the party to whom time has been granted fails to produce evidence or to cause the attendance of witness or to perform any other act necessary to the further progress of the suit. The presence or absence of the defendants party is material. In the joint case it appears that all the pre-requisite conditions were satisfied and in my opinion the order of the trial Cost had been passed under O. 17, R. 3 of the C.P.C. I may make it plain that due to the absence of the appellant it was open to the trial Court to dismiss the suit under O. 17, R. 2 of the Code. It was equally open to it to dismiss the suit on merits under O. 17, R. 3 of the C.P.C. It is manifest that the trial Court opted for the latter rather than the former. No doubt, the trial Court mentioned in the impugned order that the appellant's evidence was being closed under O. 17, R. 2, C.P.C., but this was evidently a mis-quotation of the legal provision. R. 2 does not provide for the closure of evidence. It only says that where the parties or any of them fail to appear in Court on the date of hearing the Court may proceed to dispose of the suit in one of the modes provided in O. 9, C.P.C. In other words if the intention of the trial Court was to apply O. 17, R. 2 it would have invoked O. 9, R. 8 of the C.P.C. and dismissed the appellant's suit in default. The mention of R. 2 in the order is of no significance. It is the substance of the order and the circumstances in which it is passed that determine as to under what provision of law the order was passed. In the present case the inevitable conclusion is that the order of the trial Court must be deemed to have been passed under O. 17, R. 3 and not O. 17, R. 2 of the Civil P. C. The learned lower appellate Court arrived at an erroneous conclusion that this order was not appealable.
8. In the view taken by me this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and ease is remanded to the District Judge, Kurukshetra to decide the that appeal on merits.
9. The parties have been directed.to appear before the learned District Judge ort Feb. 27, 1989. The parties will bear their own costs.
10. Appeal allowed.