SUPREME COURT OF INDIA

Before:- Ruma Pal and C.K. Thakker, JJ.

Civil Appellate Jurisdiction Civil Appeal No.Of 2005 Arising out of SLP(Civil) No. 20886 of 2001. D/d. 6.5.2005.

Thakur Ji Ram Janki Ji & Anr.- Appellants

Versus

Shankar Dayal - Respondents

Civil Procedure Code, 1908, Order 17 Rules 2 and 3 - Production of evidence Order 17 Rule 3 enables the court, when time has been granted to a party to produce evidence and he fails to do so or the case of either default on the part of party with regard to future progress in suit, (a) if the parties are present, proceed to decide the suit forthwith, (b) if the parties are, or any of them, is absent, proceed under Order 17 Rule 2 - Because of mere Non-delivery of judgment on the same day by trial court but on another day - Provisions of Order 17 Rule 3 cannot be said to be violated.

[Paras 3 to 6]

ORDER

Ruma Pal, J. - Leave granted.

2. The dispute in this appeal arises out of a suit filed by the appellant, who is the father, against his son, the respondent. The appellant had filed the suit for possession alleging that the respondent had forcibly occupied a portion of the appellant's property. The suit was decreed in favour of the appellant by the Trial Court. The first appeal which was preferred by the respondent was dismissed. The respondent filed a second appeal which was allowed by the High Court solely on the ground that the provisions of Order 17 Rule 3 of the Civil Procedure Code. 1908 had not been complied with by the Trial Court.

3. Order 17 Rule 3 of the Civil Procedure Code, 1908 enables the Court, when time has been granted to a party to produce evidence and he fails to do so or the case of either default on the part of the party with regard to the further progress in suit, to either (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 of Order

4. The High Court was of the view that Clause(a) of Rule 3 Order 17 requires the Court to deliver judgment on the same day. Since the judgment was not delivered on the same day, but on another day it was held that the provisions of the Order 17 had been violated.

5. The reasoning of the High Court is entirely erroneous Order 17 Rule 3 does not cast a mandate on the Trial Court but merely empowers the Trial Court to exercise its discretion in the manner provided. It does not by any stretch of the imagination require that in the case of default of the party, the Trial Court must proceed to decide the suit forthwith and that if it does not do so on that date it cannot so do thereafter.

6. The only reason on which the High Court has set aside the concurrent findings of the first appellate court being erroneous, the appeal is allowed. The decision of the High Court is set aside and the decision of the first appellate court is affirmed.

7. There shall be no order as to costs.

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