Sunday, 23 December 2018

Whether court can refuse to restore suit dismissed in default on ground that plaintiff can file fresh suit?

At the same point of time, this Court, after going through the provisions made under Order 9 Rule 4 of the Code of Civil Procedure and the record of the learned Court below has come to the conclusion that the cause, which the applicant was agitating in the Court below in the Civil Suit is that he is joint owner in possession of the suit land, because he always remains and he could maintain a suit at any time. So far as declaration to the effect that sale deed executed by defendant No. 3 is ineffective at the time of partition that land to that extent will always be deductable from the share of defendant No. 3 and the decree for permanent injunction restraining the defendants from interfering over the suit land on the basis of his title, Plaintiff can always maintain such a suit fresh as it is a continuing cause and so for the redressal of his grievances, the applicant/plaintiff has limitation in his favour and so also cannot be said that his cause will be defeated in case the petition is not allowed.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Civil Revision No. 151 of 2017

Decided On: 20.08.2018

 Krishan Dass Vs. Ghan Shyam and Ors.

Hon'ble Judges/Coram:
Chander Bhusan Barowalia, J.

Citation: AIR 2018 Himachal Pradesh 151


1. The present revision petition is maintained by the petitioner under Section 115 of the Code of Civil Procedure, against the order dated 20.6.2017, passed by the Civil Judge (Jr. Division), Court No. 2, Ghumarwin, District Bilaspur, H.P. in Civil Case No. 290-6 of 2010 in Registration No. 1597/13, titled Krishan Dass v. Ghan Shyam & others, whereby the application of the petitioner under Order 9 Rule 4 C.P.C. alongwith an application under Section 5 of the Limitation Act, for restoration of Civil Suit No. 631-1 of 2005/2000 dismissed in default, after allowing the application seeking condonation of delay in moving such an application was dismissed.

2. Briefly stating the facts giving rise to the present appeal are that the applicant/plaintiff engaged counsel L.R. Verma in the case on his behalf. It has been averred that at that time learned counsel was requested by the plaintiff (hereinafter to be referred as 'petitioner') that he is unable to appear in the Court on each and every date of hearing and he agreed that the applicant will be called whenever his presence would be required. As per the applicant/petitioner, he remained ill for some time in the year 2009 and had gone out of State in connection with his domestic affairs for years 2009-2010 and was confident that his counsel is appearing in the Court and as he was not contacted by his counsel, he believed that there was no necessity for him to appear before the Court. It has been averred that he came to Ghumarwin on 6th August, 2010 and met his counsel, on which, he told that case was fixed for 24.3.2009, but as he was busy in another Court in Tehsil and as a result of which the case had been dismissed in default. Further, it has been averred that he came to know about dismissal for the first time on the said date, because of which, he could not move an application earlier. It has been averred that the learned counsel told him that he could not meet any person who could convey about the said fact to the plaintiff due to which the communication could not be made.

3. It has been alleged that notice of the application was issued to the respondents out of whom respondents No. 6 to 10 were proceeded against ex-parte on 02.9.2011 and respondent No. 4 was also proceeded against ex-parte on 11.4.2012 and the legal representative No. 3 of respondent No. 11 was proceeded against ex-parte on 03.7.2012 and L.R. No. 1 of defendant No. 11 was proceeded against ex-parte on 29.9.2012 and L.R. No. 2 of defendant No. 11 was proceeded against ex-parte on 13.12.2012. It has been alleged that the remaining respondents contested the application by filing separate replies. In the reply, the respondents denied the averments made in the application and averred that the applicant did not appear before the Court intentionally and no documentary proof regarding his illness had been attached with the case and also that the application has been filed on false and frivolous grounds.

4. It has been alleged that respondent No. 3 filed separate reply and averred that the absence was intentional and willful and no documentary proof regarding his absence was attached.

5. Similarly it has been alleged that respondent No. 5 filed reply and submitted that all the parties to the suit were not impleaded as party to the application and the suit was got dismissed in default intentionally and no reasonable ground was shown for the non appearance on the date of hearing. It has been submitted that the applicant had not shown any reasonable ground for setting aside the order and for condonation of delay.

6. It has been alleged that respondent No. 1 filed reply taking therein preliminary objection as to maintainability, delay is of 513 days, not coming to the Court with clean hands and delay of each and every day has not been explained. On merits, it has been averred that parties are bound by the agreement of the client with the advocate, duly incorporated in the power of attorney and no advocate could tell party not to appear in the Court. It has been averred that he had not submitted any medical proof to show that he was not well and not explained the domestic affair in which he was busy. It has been averred that the story was baseless and frivolous and it is surprising that he had not preferred to know about the case for a period of 513 days and also that the applicant is not a rustic villager rather he was a litigant, who even did not hesitate to grab the property of respondent by obtaining his signature fraudulently. Further, it has been averred that to contact the counsel is the duty of client and applicant cannot be heard to say that he did not try to contact his counsel for 513 days and that he remained in the Court and various government offices and tortured the replying respondent by filing numerous false cases. It has been averred that to appear in the Court when the case is called is the duty of his client and also to produce his counsel in the Court. It has been averred that to be busy in another court is also no ground to condone the delay and he had not explained in which case and in which Court the learned counsel was busy from 10.00 AM to 3.30 PM and also that he did not mention the date in the application which shows that it was not drafted on the said date. Other averments raised in the application were denied and the reply was duly supported by counter affidavit.

7. From the pleadings of the parties, following issues were framed by the learned Court below on 22.4.2016:

"1. Whether the applicant is entitled to condone the delay in filing the application under Order nine rule four of CPC, as prayed for? ... OPA

2. Whether the application is not maintainable in the present form, as alleged? ... OPR

3. Relief."

8. The learned court below after appreciating the evidence on record decided the aforementioned issues in negative and dismissed the application.

9. I have heard the learned counsel for the parties.

10. Shri Ashwani Sharma learned senior counsel appearing on behalf of the petitioner has argued that the order passed by the learned Court below is a result of not exercising the jurisdiction vested in it and the delay of 513 days, which was for the sufficient reasons, was required to be condoned. To support his contention that the delay was required to be condoned and the matter was required to be restored to its original place, he has invited attention of this Court to the judgments passed by the Hon'ble Apex Court in Parimal v. Veena Alias Bharti, MANU/SC/0105/2011 : (2011) 3 Supreme Court Cases 545; Firdous Omer (D) by Lrs & Ors. v. Bankim Chandra Daw (D) by LRS & Ors., MANU/SC/3384/2006 : AIR 2006 Supreme Court 2759; Syed Mustaplha Kamal Pasha and another v. Dr. H.A. Ramachandra Gowda and others, MANU/KA/0021/1996 : AIR 1996 Karnataka 91 and Kamta Prasad v. Smt. Jaggiya W/o Solai and others, MANU/UP/0499/1998 : AIR 1999 Allahabad 184.

11. On the other hand, the learned counsel appearing for the respondents has argued that the cause of action to maintain a suit is always with the plaintiff and he can always maintain a suit as the limitation to file a suit, as co-sharers always remains. As far as the sale made by one of the co-sharers is concerned, that is always subject of partition and the cause of action is always with the petitioner/plaintiff as provided under Order 9 Rule 4 C.P.C. and the applicant can maintain a suit and the present application for condonation of delay for filing application for restoration is otherwise highly time-barred, as the applicant maintained a separate civil suit through an Advocate just nine months before filing of the present application and that nine months period after filing of the other civil suit has not been explained. He has further argued that the application is vague and also requires to be dismissed.

12. In rebuttal, the learned counsel for the petitioner has argued that as the learned counsel for the applicant/petitioner appeared before the Court below for nine years in the suit and seven years in the application for restoration. The present is a fit case where the revision is required to be allowed and delay is required to be condoned.

13. To appreciate the arguments of the learned counsel for the parties, I have gone through the record in detail.

14. Order 9 Rule 4 of the Code of Civil Procedure for the sake of brevity is reproduced as under:-

"4. Plaintiff may bring fresh suit or Court may restore suit to file.- Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in Rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."
15. As per the applicant/petitioner, he remained ill for some time in the year 2009 and had gone out of State in connection with his domestic affairs for year 2009-2010 and was confident that the counsel is appearing in the Court and as he was not contacted by his counsel, he believed that there was no necessity for him to appear before the Court. It has been averred that he came to Ghumarwin on 6th August, 2010 and met his counsel, on which, he told that the case was fixed on 24.3.2009, but as he was busy in another Court in Tehsil and as a result of which, the case had been dismissed in default. Further, it has been averred that he come to know about dismissal for the first time on said date, due to which, he could not move the application earlier. It has been averred that learned counsel told him that he could not meet any person, who could convey about the said fact to the plaintiff, because of which the communication could not be made. An affidavit in support of application had been filed.

16. As per respondent No. 1, he filed reply taking therein preliminary objection as to maintainability, delay is of 513 days, not coming to the Court with clean hands, delay of each and every day not explained. On merits, it has been averred that parties are bound by the agreement of the client with the advocate duly incorporated in the power of attorney and no advocate could tell party not to appear in the Court. It has been averred that he had not submitted any medical proof to show that he was not well and not explained the domestic affair in which he was busy. It has been averred that the story was baseless and frivolous and it is surprising that he had not preferred to know about the case for a period of 513 days and also that the applicant is not a rustic villager rather he was a litigant who even did not hesitate to grab the property of respondent by obtaining his signature fraudulently. Further, it has been averred that to contact the counsel is the duty of client and applicant cannot be heard to say that he did not try to contact his counsel for 513 days and that he remained in the Court and various government offices and tortured the replying respondent by filing numerous false cases. It has been averred that to appear in the Court when the case is called is the duty of his client and also to produce his counsel in the Court. It has been averred that to be busy in another Court is also no ground to condone the delay and he had not explained in which case and in which Court, the learned counsel was busy from 10.00 AM to 3.30 PM and also that he did not mention the date in the application, which shows that it was not drafted on the said date. Other averments raised in the application were denied and the reply was duly supported by counter-affidavit.

17. The petitioner/plaintiff stepped into witness box as AW-1 to prove his case and filed his examination-in-chief by way of affidavit Ext. AW-1/A, wherein he has reiterated his entire case, as stated in the application. He tendered in evidence order dated 24.3.2009, Ext. P1. During cross-examination, he has stated that he was a Trained Graduate Teacher and is retired. He has stated that a case titled Ghanshyam v. Rajender was also going on against him and he had also filed another case titled Krishan v. Ghanshyam, which was also pending in the Court below. He further stated that both these case were 1 1/2 years old in which his counsel was Lekh Ram. He agreed that case which was filed by respondent against him was pending from the year 2010. He denied the suggestion that the case was regarding interference and was being caused by him in his land and that he did not interfere in his land. He has stated that in the year 2010, he went to Delhi, but had not specified about the same in the application. He has agreed that he had not placed on record any certificate regarding his illness. He has denied that he used to visit the Court in between for the case. He has further stated that his counsel told him that he would call him whenever required. He agreed that the counsel was aware about the date and that he came to know in August, 2010 about dismissal of his case and his counsel did not inform him earlier and nor he asked from his counsel about the case after which he applied for copy.

18. The Hon'ble Supreme Court in Firdous Omer (D) by Lrs & Ors. v. Bankim Chandra Daw (D) by LRS & Ors., MANU/SC/3384/2006 : AIR 2006 Supreme Court 2759, has held as under:

"10. Keeping out for the moment, the Rules of the Original Side of the Calcutta High Court or the practice followed in that Court, it appears to us that it was a case where the suit was dismissed for default or for non-prosecution. Such a dismissal, no doubt, was on the basis that the suit was placed before a Judge trying the cause under Rule 35 of Chapter X of the Original Side Rules. But the dismissal still remains a dismissal for default of the plaintiff. It could be a dismissal under Rule 3 of Order IX, if both sides were not present when the suit was called on for hearing or it could be a dismissal under Rule 8 of Order IX, if the defendant alone appeared and the plaintiff did not appear. In either case, the plaintiff could apply either under Rule 4 or under Rule 9 of Order IX of the Code for restoration of the suit, on showing sufficient cause for non-appearance. The application, no doubt, had to be made within the period prescribed therefor under the Limitation Act, which is 30 days from the date of dismissal, under Article 122 of the Limitation Act, 1963. Apparently, under the practice followed in the Calcutta High Court on the Original Side, the order is drawn up, completed and filed after the expiry of 30 days from the date of the order. Section 5 of the Limitation Act of 1908 proprio vigore did not apply to proceedings under Order IX of the Code of Civil Procedure and the decision of the Calcutta High Court in M/s. Nanalal M. Varma and Co. (Gunnies) P. LTD. v. Gordhandas Jerambhai & Ors. (supra) dealt with a case which arose when the 1908 Act was in force and Section 5 of the Limitation Act was not applicable. But after the enactment of the Limitation Act, 1963, Section 5 has application to all applications other than an application under Order XXI of the Code of Civil Procedure subject to any special law. That means that time for filing an application under Rule 4 or under Rule 9 of Order IX of the Code, or under any other provision, unless excluded, could be extended if sufficient cause is made out therefor. Therefore, the fact that on the expiry of 30 days from the date of the order, the order was drawn up, completed and filed, would not make the court concerned functus officio since that court in an appropriate case can exercise its jurisdiction under Section 5 of the Limitation Act and extend the time for filing the application under Rule 9 or Rule 4 of Order IX of the Code. Thus, it appears to us that in view of the applicability of Section 5 of the Limitation Act, to proceedings under Order IX of the Code, the position adopted in M/s. Nanalal M. Varma and Co. (Gunnies) P. LTD. v. Gordhandas Jerambhai & Ors. (supra) and followed subsequently by the Calcutta High Court cannot now be adopted."
19. This judgment is not applicable to the facts of the present case, as in the present case as the delay of 513 days has occurred, which is not explained by the applicant, as the only allegation that he remained ill and as he had maintained a civil suit just 9 months before filing of the present application through the same Advocate in the same Court.

20. In another judgment the Hon'ble Supreme Court in Parimal v. Veena alias Bharti MANU/SC/0105/2011 : (2011) 3 Supreme Court Cases 545, has held as under:

"13. "Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously.

14. In Arjun Singh v. Mohindra Kumar & Ors., MANU/SC/0013/1963 : AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause.

15. While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it.

16. In order to determine the application under Order IX, Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application."

21. This judgment is not applicable to the facts of the present case, as the sufficient cause though tried to be averred in the present case, but has not been substantiated by the applicant/petitioner in the Court below and just unsubstantiated submission that he was ill when he had maintained another suit during that period cannot be taken as gospel truth.

22. Similarly, in Kamta Prasad v. Smt. Jaggiya W/o Solai and others, MANU/UP/0499/1998 : AIR 1999 Allahabad 184, it has held as under:

"22. While considering the question under Order 9, Rule 4 or 13 of the Code of Civil Procedure, 1908, it is necessary to find out as to whether the party had been able to show that there were sufficient reasons preventing him from appearing on the date fixed. The finding of sufficient reason does not confine the Court's enquiry only to the consideration of the reason that prevented the party from appearing. The Court has also to find out the totality of the situation, including the defect in its own procedure. In other words, it is incumbent on the Court also to find out as to whether in the circumstances of the case the suit could be dismissed or decreed ex-parte, as the case may be. Such question depends on the facts and circumstances of each case. The Court has to examine on the facts and circumstances of the case whether the passing of such order can be justified on the procedure adopted. If there is an infraction in the procedure, the same would amount to mistake or error or irregularity in procedure. It is, then, a mistake or error of the Court. If such mistake or error or irregularity comes to the notice of the Court, it is the duty of the Court to correct its own mistake or error or irregularity. None of the parties could be made to suffer because of any mistake or error or irregularity apparent in the procedure itself."
23. This judgment is also not applicable to the facts of the present case.

24. At the same point of time, this Court, after going through the provisions made under Order 9 Rule 4 of the Code of Civil Procedure and the record of the learned Court below has come to the conclusion that the cause, which the applicant was agitating in the Court below in the Civil Suit is that he is joint owner in possession of the suit land, because he always remains and he could maintain a suit at any time. So far as declaration to the effect that sale deed executed by defendant No. 3 is ineffective at the time of partition that land to that extent will always be deductable from the share of defendant No. 3 and the decree for permanent injunction restraining the defendants from interfering over the suit land on the basis of his title, Plaintiff can always maintain such a suit fresh as it is a continuing cause and so for the redressal of his grievances, the applicant/plaintiff has limitation in his favour and so also cannot be said that his cause will be defeated in case the petition is not allowed.

25. The net result of the above discussion is that the order passed dated 20.6.2017, passed by the learned Court below is just reasoned, and after appreciating the facts which have come on record to its true perspective and needs no interference. Hence, the present petition deserves dismissal and the same is accordingly disposed of.

26. Pending application(s), if any, shall also stands disposed of accordingly.


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