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TMI Blog1962 (2) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... 22-5-56 an application was filed by one P. C. Jain on behalf of the plaintiff for adjournment On the ground that the Plaintiff's senior counsel, Sri Rammath Seth, had gone to England and that his presence was necessary for the proper prosecution of the case. The defendants' counsel Sri Devendra Swarup made the following endorsement on the said application: No objection on personal ground of Mr. Seth. The application for adjournment was rejected by the Civil Judge on 23-5-56 on the finding that P. C. Jain was neither a party nor counsel nor an authorised agent of the plaintiff and, as such, the application could not be taken to have been properly presented. A second application was then moved by Sri Gopinath Dikshit, counsel of the plaintiff, accompanied by an affidavit. The court ordered the application to be put up for disposal on 24-5-56, observing that the defendants wanted time to meet the allegations of the plaintiff. It was also ordered that parties should come prepared with their evidence. On 24-5-56 Sri Gopinath Dikshit, counsel of the plaintiff informed the court that he had no instructions to press the application for adjournment. Thereupon the court reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got dismissed by him deliberately and that he acted mala fide in getting the suit dismissed for default. It was contended that the allegations made by the plaintiff in his affidavit in support of the restoration application had remained uncontroverted and the defendants had not filed any counter-affidavit challenging the facts set out in the plaintiff's affidavit. The court below was, therefore, in error in holding that the plaintiff was negligent or that his pairokar had acted mala fide in the prosecution of the application for adjournment. 7. The contentions raised on behalf of the defendants were, firstly that the order of dismissal by the Civil Judge ought) to be regarded as made under Order XVII, Rule 3, C. P. C., inasmuch as the plaintiff's counsel Sri Dikshit had signed the restoration application and was present on 24-5-56 when the said application came on before the court for disposal. His statement that he had no instructions to press the application was a device to get round the provisions of Order XVII, Rule 3 and, as such, amounted to an abuse of the provisions of law by putting up a false case before the court; and, secondly, that even if the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such other order as it thinks fit. 12. If, however, the second part of Rule-2 applies, that is, if the evidence or a substantial person of the evidence of a party has been recorded and such party fails to appear on the adjourned date of hearing, the court may proceed to decide the case on merits even though the party is in fact absent. The explanation added to Rule 2 by this Court sets out the circumstances under which a party is not deemed to have failed to appear. According to the explanation if a party is personally present or is represented in court by an agent or pleader, though engaged for the limited purpose of making an application, it would be deemed as if the party was actually present on the adjourned date of hearing. In such an event the court has power to decide the case on merits. 13. Rule 3 of Order 17, as amended by this Court, reads thus : 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha Kishan v. Collector of Jaunpur ILR 23 All 220 (PC) the facts were these. On the day fixed for hearing the pleader for the defendant stated that he could not conduct the case as he had received no instructions from his client. Thereupon the court proceeded to try the case and decreed the suit against the defendants. The Privy Council held that when a pleader for a party appears in court and makes a statement that he has no instructions to conduct the case, the party could not be said, under the circumstances, to have appeared. 17. In Gopal Singh v. Kailash Gir AIR1933All652 a Division Bench of this Gour pointed out that a distinction is to be drawn, between the case of a pleader who staves that he has no instructions for a limited purpose of making an application for adjournment, etc. The learned Judges observed that: the case of a pleader who says that he has no instructions does not come under the explanation to Rule 2 of Order 17. If we were to hold otherwise and accent the argument of the learned counsel for the appellant, we would be holding that it was impossible for a pleader who wishes to withdraw for representing a party to do so, and we do not consider t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations contained in the affidavit of P. C. Jain. 20. The learned counsel for the defendants sought to argue that it was not necessary to file any counter-affidavit as the allegations of the plaintiff were on the face of it absurd and self-contradictory. We do not think it is open to a party to brush aside the averments of his opponent by merely seating that the allegations were untrue. A statement on oath whether true or false, has to be met by a counter-affidavit in reply, or by challenging the statement by cross-examining the deponent. If that is not done it would be presumed that the allegations, if untrue, would have been rebutted by the other side. 21. In Mehta Parikh and Co. v. Commr. of Income Tax, Bombay [1956]30ITR181b(SC) the facts were that both the Income Tax Officer and the Appellate Assistant Commissioner discounted the suggestion of the assessee by holding that it was impossible that he had on hand on 12-1-56,61 high denomination currency notes of ₹ 1,000/- each including a cash balance of ₹ 69,000/- and odd. This was considered impossible both by the Income Tax Officer and the Appellate Assistant Commissioner as they could not consider it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance of the plaintiff on that date. The explanation offered by the pairokar of the plaintiff in his affidavit having remained unrebutted, it could not be sale that the plaintiff was not acting honestly or was not interested in prosecuting the case. If the party was trying to appear on the date fixed in the case and if he made honest efforts in that behalf, even though the manner in which he proceeded about the task was not likely to achieve the purpose, it could not be said that the party had misconducted himself or acted with gross negligence. It is no doubt true that the manner in which P. C. Jain set about collecting witnesses was an unpractical way of doing it. Even so, it could not be held that the plaintiff was negligent 25. It was also pressed upon us in arguments by the learned counsel for the defendants that it had not been shown as to why Sri Padampati Singhania did not appear in court on the adjourned date of hearing, particularly when it was the plaintiff's own case that he was the most important witness in the case. No attempt was made by the defendants to elicit facts from P. C. Jain by asking the court to summon him for cross-examination. In the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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