Law:

Section:

Civil Procedure Code (V of 1908)--- ----O. XVII, R. 3---Dismissal of suit for non-prosecution on account of successive failure of the plaintiff to produce evidence on the five different dates fixed by the Court for the purpose---Conditions which must co-exist for application of O.XVII, R. 3, C.P.C. enumerated--­Principles illustrated. Following conditions must co-exist for application of provisions of O.XVII, R. 3, C.P.C. (i) Adjournment must have been granted to the, party at his request or for other reasons; (ii) It must have been granted to it for the purpose mentioned in the rule; (iii) The party who had taken the time defaulted in doing the act for which he took the time from the Court; (iv) There must be some material on record for decision of the case on merits, and; the Court must decide the suit forthwith that is within a reasonable time. A decision as envisaged by rule 3 of Order XVII must be a decision on merits; i.e. on consideration of such material as may be necessary and available, and it should not be a summary decision as for the purpose, the Court was to hear the parties and to give on each and every issue in the light of the evidence brought on record. Therefore, where the decision was not on merits of the case it would not sustain, hence from the provision of rule 3 it is quite clear that in the event of default, the Court may proceed to decide the suit forthwith meaning thereby that on the basis of such material as may be available before the Court, the suit can be decided without allowing the defaulting party another opportunity to produce his witnesses or to perform such other act as may be necessary for the progress of the case. Order XVII, rule 3, C.P.C. applies where a party, who is granted time- to perform some act not only fails to do so, but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons and where a defendant does not appear at an adjourned hearing, this rule applies irrespective of the fact whether he appeared at the first hearing or not and the Court has to exercise its discretion and its hands are not tied by the…

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