JUDGMENT
1. This is an appeal by the defendants arising out of the judgment dated 21-4-80 passed by the then IIIrd Addl. District Judge, Mirzapur in Original Suit No.62 of 1975.
2. Original Suit No. 62/75 of the Court of Mirzapur was filed by Kanhaiya Lal (since deceased) against 9 defendants. The relief prayed for was that the house given in List A, at the foot of the plaint, be partitioned and the share of the plaintiff being 7/12, be separated by means of a final decree.
3. A pedigree has been given in paragraph 1 of the plaint. Kanhaiya Lal, deceased was the son of Beni Prasad and grandson of Hanuman Prasad. According to the pedigree, Shiv Sewak Lal had two sons -- Hanuman Prasad and Mewa Lal. Hanuman Prasad predeceased heirless. Therefore, the entire property was vested in Hanuman Prasad, who had four sons-- Lalta Prasad, Binda Prasad, Beni Prasad and Deep Narain Lal.
Lalta Prasad died in 1933 leaving behind his widow Smt. Bhagwati Devi, who died in 1959 heirless. Therefore, the entire property was inherited by Binda Prasad, Beni Prasad and Deep Narain Lal. At a later stage, Binda Prasad, Beni Prasad and Deep Narain Lal separated from each other, having l/3rd share each. Binda Prasad borrowed some amount from Smt. Sahodara Devi, wife of Beni Prasad and executed a mortgage deed in her favour for the said transaction. Binda Prasad failed to redeem the said mortgage. Kanhaiya Lal, son of Smt. Sahodara Devi instituted Original Suit No. 275 of 1951 against Binda Prasad. The suit was decreed and ultimately, l/4th share belonging to Binda Prasad in the house of Schedule A was auctioned and purchased by Kanhaya Lal. The possession was also delivered to him in due course. Other defendants disputed the title of the plaintiff, therefore, this petition suit was filed.
4. The defendants generally denied the claim of the plaintiff. As many as 8 issues were framed by the learned lower Court.
5. 20-3-80 was fixed for final hearing. On that date, defendant No. 7 moved an application for adjournment. It was allowed and 28-3-80 was fixed. On that date another application was moved by the defendant, which was allowed on payment of Rs. 25/- as cost and 19-4-80 was fixed for final hearing. On 19-4-80, the parties' counsel were present. An application for adjournment on behalf of Smt. Gulab Devi, defendant No, 7 was moved by her counsel Sri Udai Shankar Verma, Advocate (86 D). That was objected to by the learned Counsel for the plaintiff. After hearing the parties, the application for adjournment was rejected and the court tried to proceed with the case ex parte. Thereafter, Sri Udai Shankar Verma, learned Counsel for defendant No. 7 left the court. Defendant No. 1 Deep Narain was present personally. Other defendants were absent. Therefore the court proceeded to decide the case under Order 17, Rule 3, C.P.C. On the same day, PW 1 was examined. There was no cross-examination. The argument of the plaintiff was heard and 21-4-80 was fixed for judgment. On that date, the court passed the judgment in dispute declaring the share of the plaintiff to be 7/12th in the property as Schedule A and 1/3rd share in the property at Schedule B and further ordered preparation of preliminary decree according to law.
6. It is against this order, this appeal has been preferred.
7. I have heard learned Counsel for the parties and perused the record. It appears that the learned lower Court proceeded under Order 17, Rule 3, C.P.C. and finally decided the case. Therefore, the appeal has been filed by the defendants as stated above.
8. After hearing learned Counsel for the parties, I find that this was not a fit case in which the court could proceed under Order 17, Rule 3, C.P.C. At the worst, it could proceed under Order 17, Rule 2, C.P.C. which could entitle the defendants to file an application under Order 9, Rule 13, C.P.C.
9. The provisions of Order 17, Rule 3, C.P.C. were not attracted in this case. The provision runs as follows:--
"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 suits, 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."
10. Admittedly, on 19-4-80, only the plaintiff and his counsel were present. The defendants' counsel withdrew after his application for adjournment was rejected. That is why the court proceeded without hearing the defendants. For warranting the application under Order 17, Rule 3, C.P.C., it was essential that the court could proceed only when the parties were present, meaning thereby, all the parties to the suit. Otherwise if the parties were not present, the court could proceed under O. 17, R. 2, C.P.C. only. In this case, the order sheet of the learned lower court shows that the counsel for defendant No. 7 Smt. Gulab Devi, Sri Udai Shankar Verma withdrew from the proceedings after the application for adjournment was dismissed by the learned lower court. So he was not present in the court as required by this provision of Order 17, Rule 3(a). So the court had no other option left but to proceed under Order 17, Rule 2, C.P.C. This way, the learned lower court has erred clearly in proceeding under Order 17, Rule 3(1 A), C.P.C. The order is not on merits nor it could be so. It is clearly thus an ex parte order and unnecessarily purporting to be under Order 17, Rule 3, C.P.C.
11. The case has not been heard and finally decided on merits. Vital stakes are involved in this case. Therefore, this ex parte decree cannot be allowed to stand. It deserves to be set aside accordingly.
12. The appeal is allowed. The judgment and decree passed by the learned lower court are herewith set aside. The case is remanded to the learned lower court for trial according to law. The record shall be sent to the court concerned within 3 months from today. Parties shall appear before the learned lower court on 17-7-95. The learned lower court shall fix a date for final hearing. On that date, parties evidence shall be recorded. Thereafter after hearing learned Counsel for the parties, the learned lower court shall proceed to decide the case on merits and in accordance with law. In the circumstances of the case, parties shall bear their own costs.
13. Appeal allowed.