Arun Bhansali, J.
1. This first appeal under Section 96 CPC is directed against the judgment and decree dated 17.11.2008 passed by the trial court, whereby the suit filed by the appellant has been dismissed under the provisions of Order17, Rule3CPC.
2. The appellant-Bank filed a suit for recovery of a sum ofRs. 2,08,131/- along with interest. The respondent-defendants were served and their written statements were closed by orders passed by the trial court on 05.09.2007 and 11.11.2008 and, thereafter, the trial court fixed the suit for plaintiff's evidence on 17.11.2008. On 17.11.2008, no witness of the appellant was present and the trial court dismissed the suit exercising its power under Order17, Rule3CPC.
3. It is submitted by learned counsel for the appellant that the trial court was not justified in dismissing the suit merely because on the first date fixed by the trial court for evidence, the plaintiff's witness was not present and, therefore, the judgment and decree passed by the trial court deserve to be set aside.
4. Learned counsel for the respondents supported the judgment passed by the trial court. It was submitted that the suit was pending since 1995 and once the written statement of the respondents was closed, there was no occasion to seek time and, therefore, the trial court was justified in dismissing the suit filed by the appellant-Bank. It is further submitted that in case the decree is set aside, the respondents may be given one more opportunity to file written statement.
5. I have considered the submissions made by learned counsel for the parties and have perused the material placed on record.
6. It is not in dispute that the suit was filed way back in the year 1995 and after publication of summons under Order5, Rule20CPC, the service on the defendants was treated as complete. As despite grant of time, the written statement was not filed, the trial court closed the opportunity to file written statement and fixed 17.11.2008 as the date for plaintiff to lead evidence. On 17.11.2008, the witness of the plaintiff-Bank was not present and, therefore, the trial court exercising its power under Order17, Rule3CPC dismissed the suit filed by the plaintiff.
7. Provisions of Order17, Rule3CPC read as under:-
"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, or any of them is, absent, proceed under rule 2]."
8. A bare look at the provisions of Rule 3 above would reveal that the same forms part of Order 17 CPC, which deals with the adjournments and provides for power of the Court to grant time and adjourn hearings under Rule 1; cost of adjournment under Sub-rule 2 of Rule 1 and procedure, if parties fail to appear on the date fixed; under Rule 3, where a party 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 for the further progress of the suit, the Court may proceed to decide the suit forthwith.
9. The power to decide the suit forthwith under the provisions essentially are meant to curb the tendency of seeking unnecessary adjournments and empowers the Court to proceed with the suit, however, the said power conferred on the courts cannot be utilized/mis-utilized for the purpose of deciding litigations even though the conditions do not exist for the same.
10. As noticed hereinbefore, the matter was fixed for evidence of the plaintiff-Bank on 17.11.2008, which was the first date for the purpose and merely because on the said date, the witness was not present, it could not be said that the Bank had indulged in seeking unnecessary adjournments for the purpose of prolonging the suit and, therefore, the trial court was not justified in exercising powers under Order17, Rule3CPC only with a view to dismiss the suit.
11. Even otherwise the suit was filed by a Public Sector Bank dealing with public money and the dismissal of the suit filed by it is essentially loss to the public exchequer that also without any trial in the matter. In the circumstances, the impugned judgment passed by the trial court cannot be sustained.
12. So far as the prayer made by learned counsel for the respondents regarding grant of opportunity to the defendants to file written statement is concerned, in view of the fact that the suit has already remained pending for over 20 years and the same has once been dismissed by the trial court and the same is being remanded to the trial court for further proceedings, it would be in the interest of justice to grant one more opportunity to the respondents to file the written statement, if so advised and, therefore, exercising powers under Order41, Rule33CPC, the orders dated 26.02.1999 and 11.11.2008 passed by the trial court closing the opportunity to file written statement are also set aside. The matter is remanded back to the trial court to re-decide the suit on merits.
13. It would be required of the respondent-defendants to file the written statement on the date of appearance before the trial court and in case, they fail to produce the written statement on the said date, the orders dated 26.02.1999 and 11.11.2008 would revive and become operational and no further opportunity would be granted by the trial court to the respondent-defendants.
14. In view of the above discussions, the appeal filed by the appellant is allowed with costs. The judgment and decree dated 17.11.2008 passed by the trial court is set aside. The matter is remanded back to the trial court to re-de
Please Login To View The Full Judgment!
cide the same on merits after taking the written statement of the respondent-defendants, if filed as directed hereinbefore. 15. As the suit pertains to the year 1995, the trial court is directed to decide the same as expeditiously as possible preferably within a period of nine months from the date the parties appeared before it. 16. The parties shall appear before the trial court on 05.10.2015 and would file their written statement on the said date, in case the written statement is not filed on that date, the orders passed by the trial court dated 26.02.1999 and 11.11.2008 would revive and shall become operational. Appeal allowed.