Judgment:
A.K. Sikri, J.
1. The plaintiff (the appellant herein), being the owner of property No. 1047, Nanak Chand Basti, Gurdwara Road, Kotla Mubarakpur, New Delhi, entered into an agreement to sell dated 20.10.1987 in respect of part of the said property i.e. southern portion of the property measuring 150 Sq. yards (hereinafter referred to as the suit property). Total consideration was fixed at Rs. 4,70,000/-. At the time of entering into the agreement to sell with the defendant No. 1 (the respondent No. 1 herein), a sum of Rs. 75,000/- was paid by the defendant No. 1 to the plaintiff. Balance amount was to be paid by 31.1.1988. However, the defendant No. 1 agreed to pay Rs. 30,000/- extra over and above the earlier agreed consideration. On 17.12.1987, the defendant No. 1 paid Rs. 1 lac. On 6.9.1988 a further sum of Rs. 1,90,000/- by means of draft and cash amount of Rs. 1,10,000/- was given. Further sum of Rs. 10,000/- was given on 20.12.1988. On that date i.e. 20.12.1988, the plaintiff executed power of attorney in favor of the defendant No. 2 (the respondent No. 2 herein) wife of the defendant No. 1. According to the plaintiff, the defendant No. 1 had agreed to construct the partition wall on north side of the property to divide north side portion from the south portion which was agreed to be sold to the defendant No. 1. It is also the case of the plaintiff that the defendant No. 1 did not make balance payment or constructed the partition wall. Thus, the plaintiff terminated the power of attorney after waiting for about three years. The plaintiff alleged that the portion in dispute was in occupation of the tenants of the plaintiff i.e. Banshi Lal, Brahm Pal, S/o Chiman, Smt. Laxmi W/o Late Laxmi Narian, Munshi Ram Pal and Rajpal. The defendants took the possession of the portions which were in the tenancy of the aforesaid tenants except the portion which was in the tenancy of Rajpal. The defendants also forcibly obtained the possession of the portion of the premises, in which the plaintiff was in possession i.e. room with store. According to the plaintiff the possession of the defendants in respect of the said portions and premises is illegal and unauthorised. Vide notice dated 2.2.1994, the plaintiff terminated the agreement and thereafter filed suit No. 326/98 in the trial court praying for decree of possession, declaration and mesne profits. By this suit, the plaintiff wanted back the southern portion of the property, possession whereof was with the defendants. He also wanted declaration to the effect that the defendants had no right, title or interest in the suit property and agreement dated 20.10.1987 was null and void. Consequently, the plaintiff also wanted mesne profits @ 2000/- per month from the date of filing the suit till actual possession on the ground that the defendants were in unlawful possession of the said premises. He had, however, stated that he was prepared to refund the amount of Rs. 3,80,000/- given by the defendant No. 1 to the plaintiff pursuant to the agreement to sell as and when the possession was handed over to the plaintiff by the defendants.
2. The defendants filed the written statement and took number of preliminary objections. It was contended that the suit was barred under the provisions of Order 2 Rule 2 CPC; defendants were entitled to the protection of Section 53A of the Transfer of Property Act; the suit was time barred; it was not signed, verified and instituted by a duly authorised person. On merits, it was admitted that there was agreement to sell for purchase of suit property measuring approximately 150 sq. yards for a consideration of Rs. 4,70,000/- and that the defendants had also agreed to pay extra amount of Rs. 30,000/-. Their defense, however, was that since they had obtained possession of the suit property by virtue of agreement to sell and had also paid substantial consideration, the plaintiff had no right to take back the possession.
3. Following issues were framed by the learned trial court on the basis of the pleadings:
1. Whether suit is properly valued and proper court fees has been paid and suit is within pecuniary jurisdiction of this Court? OPP
2. Whether the suit is barred by Order 2 Rule 2 CPC? OPP
3. Whether the defendant is entitled for the protection of Section 53(a) of T.P. Act as alleged? OPD
4. Whether the further relief is available to the plaintiff as alleged if so its effect? OPD
5. Whether the suit is barred by limitation? OPD
6. Whether suit is instituted, plaint is signed and verified by duly authorised person? OPP
7. Whether pltf. Is entitled for the relief of declaration and for possession as claimed? OPP
8. Whether the pltf. Is entitled for a money decree as claimed? OPP
9. Relief.
4. Issue No. 1 has been decided against the plaintiff with the following discussion thereon:
The plaintiff has not lead (Sic:led) any evidence on this issue so the plaintiff has failed to prove that the suit is properly valued and that the proper court fees has been paid and also that the suit is within pecuniary jurisdiction of this Court. Hence, I decide issue No. 1 in favor of the defendants and against the plaintiff.
5. Apart from that we are concerned with issues No. 7 and 8 which are again decided against the plaintiff. Brief discussion on these issues can be found in paragraph No. 21 of the impugned judgment, reading as under:
21. The burden of proving all these issues is upon the plaintiff. Since the plaintiff has not lead (Sic.) any evidence to prove all these issues, I hold that plaintiff has failed to prove that he is entitled to relief of declaration and possession as claimed in the suit or is entitled to money decree for damages as prayed. Hence I decide issue Nos. 7 to 9 in favor of the defendants and against the plaintiff.
6. It is clear from the above that issue No. 1 as well as issues No. 7 and 8 are decided against the plaintiff primarily on the ground that the plaintiff failed to adduce any evidence to prove these issues.
7. The plaintiff has filed this appeal impugning the aforesaid judgment and decree vide which the plaintiff's suit is dismissed. In the absence of any evidence led by the plaintiff, there is hardly any scope to contend that the findings recorded in the impugned judgment on the aforesaid issues are improper. However, the reason for not leading the evidence was that the evidence of the plaintiff was closed as according to the learned trial court, the plaintiff/appellant did not lead his evidence inspire of repeated opportunities given to the plaintiff. The main attempt of the appellant, thereforee, is to assail the order dated 1.3.2002 vide which the right of the plaintiff to adduce the evidence was closed. The learned Counsel for the appellant pleaded that one more chance be given to the appellant to produce his evidence. He also contended that even if the evidence was closed, judgment could not have been passed on the same day under Order 17 CPC.
8. The perusal of the aforesaid order would show that the issues in the suit were framed on 13.1.1999 and thereafter the matter was listed for the evidence of the plaintiff. Initially the evidence was not produced and cost of Rs. 1800/- was also imposed on the plaintiff. Order sheet reveals that when matter came up for plaintiff's evidence on 22.9.1999 the attorney of the plaintiff was present for making his statement but plaintiff's counsel was out of station and, thereforee, case had to be adjourned. Case was adjourned to 14.12.1999. On that date, the plaintiff's attorney appeared but stated that since he was not feeling well and was, thereforee, unable to make the statement, case be adjourned. Case was accordingly adjourned to 10.2.2000. On that date also though attorney of the plaintiff appeared but again it was stated that he was not in a position to depose as he was recouping from post operative problems and also suffering from stomach pain. Matter was adjourned to 4.5.2000. On that date adjourned was sought by the counsel for the defendant on the ground that he had been engaged on that date only and wanted to prepare the case. On the next date i.e. 19.5.2000 again request was made on behalf of the counsel for the plaintiff. Matter was posted for 3.8.2000 on which date again on request of the plaintiff on the ground that counsel for the plaintiff was suffering from fever, case was adjourned to 24.10.2000. No proceedings could be held even on 24.10.2000 as attorney of the plaintiff was not present on that date as well. When the matter came up on 23.4.2001, again request was made for adjournment by the plaintiff on the ground that counsel for the plaintiff was busy in the Supreme Court. Case was adjourned to 16.8.2001, subject to cost of Rs. 1500/-. On 16.8.2001, there was again a request for adjournment on the ground that the plaintiff's attorney was sick. Adjournment was opposed. The learned trial court still showed indulgence by granting one further opportunity to the plaintiff to lead evidence making it clear that it was the last opportunity and cost of Rs. 5000/- was also imposed. This order reads as under:
16.8.2001
Present: Sh. V.K. Saini counsel for the plaintiff.
Sh. A.P. Aggarwal counsel for the defendant.
Counsel for the plaintiff states that the plaintiff attorney Shri Ved Prakash Mittal is ill. The adjournment is strongly opposed. I have gone through the order sheets. Issues were framed on 13.1.1999, thereafter ten opportunities have been granted to the plaintiff to lead evidence. Invariably to the plaintiff to lead evidence. Invariably most of the time the case has been adjourned on the request of the plaintiff or his attorney. I impose a cost of Rs. 5000/- upon the plaintiff and a last opportunity is granted to lead the evidence. Now to come up for payment of total cost of Rs. 6,500/0- and for P.E. On 3.10.2001.
9. On 3.10.2001, the statement of the plaintiff's attorney namely Sh. Ved Prakash Mittal was recorded and the witness was cross-examined partly. However, further cross-examination had to be deferred as the counsel for the plaintiff was busy in some other court. Next date given was 4.1.2002. On that date again PW1 did not appear as he was stated to be unwell. Matter stood adjourned to 1.3.2002. On 1.3.2002 when the witness again failed to turn up, order was passed closing the evidence which is reproduced in its entirety here-under:
1.3.2002
Pre: Proxy Cl. Shri Manish Magarkar for the pltf. cl.
Counsel Shri A.P. Aggarwal for the defts.
Proxy cl. for the pltf. filed an medical certificate mentioning therein that Ved Prakash Mittal attorney of the pltf. has been advised complete rest by the doctors as he had been suffering from heart trouble. Counsel for the defts opposes the adjournment, on the ground that various opportunities have been granted and last opportunity has been granted on 03.10.2001 to the pltf. The attorney of the pltf. Shri Ved Prakash Mittal PW1 is deliberately prolonging the case. Counsel for defts. further pointed out that counsel for the pltf has stated that attorney had undergone bye pass surgery. But on the medical certificate the disease mentioned in the medical certificate is of gawa arthentic maintenance of urine and not of heart.
I have perused the previous order sheets. In the present case the issues were framed on 13.1.99. Thereafter more than a dozen opportunities had been granted to plaintiff to produce evidence. The minute scrutiny of the order sheets indicate that on eight occasion the adjournment was sought and obtained by the plaintiff. On 16.8.2001 the cost of Rs. 5000/- was imposed upon the pltf. and last opportunity was granted for 3.10.2001 for P.E.
In this scenario, I am of the opinion that there is no valid reason for granting further adjournment to the pltf. I close the P.E. Counsel for the defts. states that as there is no evidence of the pltf. he does not also want to lead evidence. Now I proceed to hear the arguments under Order 17 Rule 3 CPC.
Arguments heard. Vide a separate judgment suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to RR.
10. We find from the aforesaid ordersheet that the trial court had shown utmost indulgence to the plaintiff before it was constrained to close the evidence. The appellant chose to file the present suit through Sh. Ved Prakash Mittal as his attorney who appeared as PW1. On most of the dates, he could not appear because of his alleged sickness. When sickness was the excuse given on 1.3.2002 also on the basis of which adjournment was sought again, the learned trial court even found that the plea raised was not factually correct inasmuch as counsel for the plaintiff had stated that Sh. Mittal had undergone bye pass surgery but on the medical certificate the disease mentioned was 'gawa arthentic maintenance of urine'. There is a limit to which the courts can show forbearance and be tolerant to such an unscrupulous party brazenly exhibiting recklessness, that too repeatedly. As many as dozen opportunities were granted to the plaintiff. The plaintiff, it seems, took the proceedings in a most causal manner. It can be the only reason for defaulting even after last opportunity was granted to the plaintiff to adduce evidence. To such a litigant, like the appellant herein, it would not be possible to grant any further indulgence.
11. In The Executive Engineer and Ors. v. Machinery Parts Corporation : 129(2006)DLT629 , this Court had an occasion to deal with almost similar situation and the Court was of the view that adjournments cannot be granted on mere asking of the parties for the purpose of evidence. This judgment was also affirmed by the Division Bench of this Court in Supreme Telecommunication Ltd. v. RPG Transmission Ltd. 2006 (VI) AD (Del) 375. Following extract from this judgment, wherein judgments of other High Courts are also taken note of and discussed, is worth to quote:
The conduct of the defendants before the Court was of such a nature that the order passed by the learned Trial Court would not call for any interference. Furthermore, the court cannot keep on adjourning the case for evidence of the parties indefinitely and grant adjournments at the mere asking of the parties, without any plausible cause or reason. Reference in this regard can be made to the judgments in the cases of Chander Singh v. Chottulal and Sarjeet Kaur v. Gurmail Singh and Anr. 1999 (3) PLR 402. In the case of Sarjeet Kaur (supra), the Court held as under:
Language of the impugned order clearly shows that the plaintiff had exhausted all limits for seeking adjournment on every score, whatsoever. The very purpose of granting last opportunity stood frustrated by grant of six subsequent adjournments, but even then the plaintiff neither summoned witnesses nor examined any. Wonder there was any other choice left before the learned trial court but to pass the impugned order. This court had the occasion to discuss the scope of such power of the court and consequence of persistent default on the part of the party in the trial Court, in the case of Joginder Singh and Ors. v. Smt. Manjit Kaur Civil Revision No. 5885 of 1998, decided on 14.1.1999, held as under:
The cumulative effect of the provisions of Order 18 Rule 2 read with Rules 1 and 2 of Order 17 of Code of Civil Procedure and inherent powers of the Civil Court vested in it under Section 151 of the Code, placed an implied obligation on the Court not to adjourn the case unless sufficient cause was shown. The cause by itself cannot always be treated as a ground for repeated adjournments. Un-necessary and avoidable adjournments must be denied by the Courts. On the one hand, trial Courts are expected to dispose of suits and other proceedings expeditiously, and on the other, if parties to a lis are permitted to get the suits adjourned on the mere asking and that too for the indefinite times, it would frustrate the very spirit behind the provisions of the Code of Civil Procedure. Obligation on a Court cannot be read as construed in isolation. It must find its reasoning from the basic concept of genuine attitude of the litigant. A litigant must help the Court by effective participation for expeditious disposal of the suit. Having taken more than six opportunities after the last opportunity was granted by the Court, the plaintiff can hardly challenge the correctness of the impugned order and more particularly on the ground that the learned trial Court has failed to exercise jurisdiction vested in it or the trial court has wrongly exercised jurisdiction.
The Rajasthan High Court in the case of Chander Singh v. Chottulal , while commenting upon the afore-said provisions of the Code, held as under:
It is clear from the order-sheet of the case that the learned trial Court repeatedly adjourned the case in utter disregard of the provisions of Order 17, Rule 1, C.P.C. Its provisos (b) and (c) run as under:
(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.
(c) the fact that the pleader of a party is engaged in another Court shall not be a ground for adjournment.
Such liberal attitude of the trial Courts is mainly responsible for the huge arrears of cases and inordinate delay in their disposal. The learned trial Court should have closed the defendant's evidence much earlier. It had acted illegally in granting said adjournments to the defendant. It has not acted illegally or with material irregularity in the exercise of its jurisdiction in any manner in passing the impugned order.
The conduct of the plaintiff-petitioner no way demands exercise of judicial discretion in the Court in his favor on the grounds of equity or legal maxims. Prudent reasoning leads one to no other conclusion but to one that the learned trial Court was fully justified and in fact was left with no alternative other than closing the evidence of the petitioner.
12. Again, in Uttar Pradesh State Bridge Cor. v. Overseas Water Proofing Corporation : AIR2006Delhi211 , the Court expressed its anguish and concern over the tendency of the parties to drag the proceedings in the following terms:
8. Lately, it has been noticed by this Court that there is a great tendency to drag proceedings by filing frivolous applications and/or seeking adjournment on grounds of non-availability of counsel as also misusing the courtesy extended to counsel by courts of passing-over matters when called out. Another ground ordinarily pressed into service is that counsel is busy in a higher court. The sum total is that cases drag on from year to year and each adjournment adds to arrears. The back-log increases to the extent that the daily board becomes unmanageable. Even in this Court six to seven cases every day are filed for condoning defaults. Each time a petition for condoning default is brought before the High Court it takes on an average six hearings for it to be disposed of while the case in the trial court comes to a standstill. All this is done in the name of justice to the litigant in spite of default of lawyers.
9. In the present case, instead of proceeding with the matter after default was condoned on costs imposed, an application was moved for waiving of costs, obviously, only to delay proceedings. Having carefully considered the facts of this case, this Court is of the opinion that ends of justice demand a speedy trial which cannot be allowed to be defeated by the so-called tricks of trade. Courts must firmly put down the practice of frivolous adjournments and move ahead with cases so that the same are disposed of as quickly as possible. This of course does not mean that no adjournment will be granted but adjournments should be granted only in exceptional cases by adopting a more rational approach. This is the only method of managing workload and disposing of cases in shorter duration.
13. Order 17 of the Code of Civil Procedure in its unamended form was commented upon by the Apex Court in Bashir Ahmed v. Mehmood Hussain Shah : [1995]2SCR812 , in the following words:
The Rule thus indicates that protraction of trial of the suit should not be encouraged and the court shall try the suit as expeditiously as possible. It the adjournment has occasioned on any sufficient ground, then it may, in an appropriate case, adjourn to a shorter date asking the party seeking adjournment to pay costs incurred by the party who got the witnesses produced and was ready to proceed with trial.
14. Delay which occurs due to unnecessary adjournments on the part of one or the other party has been a matter of concern by the judiciary and legislature alike. Sweeping and important amendments were made in the Code of Civil Procedure with a purpose to ensure speedy disposal of cases. In the process, Order 17 of the Code of Civil Procedure was also amended. Though there was no provision for granting adjournments for recording the evidence earlier, amendment now provides that a party shall not be granted adjournment more than three times during hearing of the suit. Purpose obviously is to put a cap on the number of adjournments which the parties take in adducing the evidence. In Salem Advocate Bar Association, Tamil Nadu v. Union of India : AIR2005SC3353 , the Supreme Court commented upon these amendments in Order 17 Code of Civil Procedure in the following words:
29. Order XVII of the Code relates to grant of adjournments. Two amendments have been made therein. One that adjournment shall not be granted to a party more than three times during hearing of the suit. The other relates to cost of adjournment. The awarding of cost has been made mandatory. Costs that can be awarded are of two types. First, cost occasioned by the adjournment and second such higher cost as the court deems fit.
30. While examining the scope of proviso to Order XVII Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to Order XVII Rule 2 incorporating Clauses (a) to (e) by Act 104 of 1976 has been retained. Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The proviso to Order XVII Rule 1 and Order XVII Rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments as provided in proviso to Order XVII Rule 1.
31. In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, devastation on account of Tsunami). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted. Ordinarily, where the costs or higher costs are awarded, the same should be realistic and as far as possible actual cost that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable but is being granted on account of either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save proviso to Order XVII Rule 1 from the vice of Article 14 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases noted above. The limitation of three adjournments would not apply where adjournment is to foe granted on account of circumstances which are beyond the control of a party. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the Court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. We may, however, add that grant of any adjournment let alone first, second or third adjournment is not a right of a party. The grant of adjournment by a court has to be on a party showing special and extraordinary circumstances. It cannot be in routine. While considering prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments.)
Guided by these considerations as well, we are of the opinion that the learned trial court was right in refusing to grant further adjournment and rightly closed evidence of the appellant.
15. Learned Counsel for the appellant had referred to the judgment of the Division Bench of this Court in Malhan Builders and Ors. v. Durkhanie Jadran and Ors. 2006 (91) DRJ 106. However, we are of the opinion that this judgment would not come to the rescue of the appellant. In that case also the evidence of the plaintiff was closed. The Division Bench held that Court was entitled to proceed with the case and to give decisions on merits. The plaintiff was, however, given one opportunity to lead evidence only because of the reason that witness had appeared three times on earlier occasion but it was the defendant who had avoided to cross-examine him and further on the particular day when evidence was closed witness was disabled due to illness of his mother. In the present case, the defendant has not taken any undue advantage or adjournment by avoiding to cross-examine the witness. It is the witness who did not appear on most of the hearings. He had not appeared before 3.10.2001 which led to adjournments. Even when he appeared on one or two occasions, request was made by the plaintiff for adjournment either on the ground that counsel was not available or the witness was not in a position to give the evidence because of his so-called illness. Even on 3.10.2001, when the examination-in-chief of PW1 was recorded and the defendant partly cross-examined the said witness, further cross-examination had to be deferred because of non-availability of the plaintiff's counsel. Further, as already noted above, even on the particular day i.e. 1.3.2002, when the evidence was closed, the trial court found that false plea regarding illness of witness was taken.
16. Rule 2 of Order 17 of Code of Civil Procedure stipulates that if parties fail to appear on day fixed for hearing, the Court may dispose of the suit in one of the modes directed in that behalf by Order IX or may make such other orders as it may think fit. We are concerned with Rule 3 of Order 17 CPC which would come into play if either party fails to produce evidence when the matter is fixed for this purpose. This rule reads 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].
17. In the instant case parties were present but the plaintiff had failed to produce his witness. The court, thereforee, could proceed to decide the suit forthwith. It is exactly this course of action which has been adopted by the learned trial court. After closing the evidence of the plaintiff, the learned trial court proceeded to decide the suit and dismissed the same for want of any evidence led by the plaintiff. In Malhan Builders (supra), the Division Bench held that conjoint reading of Rule 2 and 3 of Order 17 CPC would demonstrate that the Court could decide the suit on merits. Paras 9 and 10 of the said judgment would rather go against the plaintiff as is clear from the reading of these paras which are as under:
9. We may at this stage also refer to Rule 3 of Order XVII which deals with situations where a 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 for the further progress of the suit. In the event of any such default, the Rule provides for two different approaches to be adopted depending upon whether the parties are present or absent. If the parties are present, the court can proceed to decide the suit forthwith but if the parties or anyone of them is absent the can only resort to Order XVII Rule 2 CPC, which, as noticed earlier, deals with situations where the parties or anyone of them is absent. A conjoint reading of the two Rules, thereforee, leaves no manner of doubt that the consequences flowing from the non-appearance of the parties are different from those flowing from defaults committed by the parties, who are present at the hearing.
10. In the instant case, the parties were present through their authorised agents on all relevant dates of hearing including the date when the evidence of the plaintiff was closed. They were also present on the date when the matter was reserved for orders and the judgment eventually pronounced. It is not, thereforee, a case whether Order XVII Rule 2 CPC could be invoked by the court as argued by learned Counsel for the appellants. It was clearly a case where the plaintiffs had failed to adduce his evidence and committed a default warranting action in terms of Order XVII Rule 3 which, as noticed earlier, permitted the court to proceed to decide the suit forthwith. Any such decision was bound to be a decision on the merits of the issues that were framed and not just an order of dismissal for default as suggested by the learned Counsel.
18. The court specifically held that the trial court could resort to Rule 3 of Order 17 CPC. This judgment, thereforee, goes against the appellant. Other judgment cited by the learned Counsel for the appellant viz. Prakash Chander Manchanda and Anr. v. Smt. Janki Manchanda : [1987]1SCR288 shall have no application. On the date fixed the defendant was absent and in these circumstances, the Supreme Court opined that recourse by the trial court could have been Rule 2 and not Rule 3 of Order 17 CPC.
19. The upshot of the above discussion would be that the appeal is devoid of any merits and is accordingly dismissed with costs.