Jharkhand High Court has held that it is not open to court to invoke the provisions of Order XVI Rule 20 of Civil Procedure Code (CPC) to dismiss a suit for want of plaintiffs’ evidence, when the plaintiff is not present before court rather it can be dismissed under Order IX CPC.
Acting on a plea filed by the plaintiff the single bench of High Court held that a plain reading of Order XVI Rule 20 of the Code of Civil Procedure shows that this power can be invoked by the Court only when the party was present in the Court and had refused to give the evidence and to produce the document which the party had in its possession at that time. Since, the plaintiff was not present in the Court, there was no question of any refusal by the plaintiff for producing the evidence and in fact, it was the plaintiff who filed list of witnesses and had prayed time on the earlier date for producing the witnesses.
The case of the plaintiff was that the trial court framed issues in a title suit and directed the plaintiff to file list of witnesses, which was duly filed by him. On the day of hearing both the parties had put their attendance in the Court, but when the case was called out, no one appeared due to some inadvertence and the Court dismissed the suit invoking Order XVI Rule 20 of CPC.
Justice H.C. Mishra, Jharkhand High Court while allowing the revision held that it was not open to the Court to dismiss the suit invoking Order XVI Rule 20 of CPC, rather the Court could have either awaited the presence of the plaintiff in the Court, or could have dismissed the suit under the provisions of Order IX in which case the plaintiff had certain rights to file fresh suit or to get the suit restored. But in present case invoking of aforesaid provision by the court, deprived the plaintiff of his rights available under the law and as such the impugned order was set aside with a direction to pass a fresh order in accordance with law.
-India Legal Bureau