Law:

Section:

(a) Civil Procedure Code (V of 1908)-------O.XVII, Rr. 2, 3, O.IX, R.8 & 5.100---Word "forthwith" as used in. O.XVII, R.3, C.P.C.---Meaning---Dismissal of plaintiff's suit for want of proof---First Appellate Court, however, remanded case for its disposal under law---Validity---Plaintiff was provided as many as 13 opportunities for production of his evidence but he failed to avail such opportunities---Plaintiff also failed to avail opportunity for which time was granted to him on payment of costs---Court in terms of O.XVII, R.3, C.P.C. while providing any party opportunity to produce Ws evidence or to cause attendance of his witnesses or to perform any other act necessary for progress of suit for which time was allowed, can proceed to decide such suit forthwith on failure of that party to produce evidence or to perform that act for which time was allowed---Term "decide forthwith" refers to decision within reasonable time under circumstances and Court can decide suit on the same day---Decision of case should, however be on merits---Application of R.3 of O.XVII, C.P.C. is in the nature of exception to general provisions contained in R.2 of O.XVII, C.P.C.---Order XVII. R.2, C.P.C. applies where party fails to appear at the hearing while R.3 of O.XVII, C.P.C. applies even where party was present but had committed any of the defaults mentioned in that rule---Both Rr. 2 & 3 of O.XVII, C.P.C. might apply to same case---In such matter where both Rr. 2 & 3 of O.XVII, C.P.C. were applicable Court should proceed under R.2 instead of R.3 i.e., either adjourn or proceed under O.IX, C.P.C. which is lesser penalty---Plaintiff having been provided many opportunities for production of his evidence, his non-availing of such opportunities left Trial Court with no option but to decide the case forthwith on merits---First Appellate Court while accepting appeal against dismissal of suit had wrongly concluded that Courts while proceeding under O.XVII, R.3, C.P.C. should wait till final hours before proceeding to decide the suit---Such finding besides being against the record was also not supported by any law to hold as such, since parties were required to appear before…

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