Madras High Court
T.Venkatesa Chetty vs G.Balu on 19 December, 2008
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19-12-2008
CORAM
THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN
C.R.P. (NPD) No.2059 of 2005
AND
C.M.P.No.10165 of 2006
T.VENKATESA CHETTY .. Petitioner
Vs.
1.G.Balu
2.S.Sakunthala
3.S.Kishore Kumar
4.S.Balaji
5.Rajammal .. Respondents
{Cause Title accepted vide order
of Court dated 7.10.2005 made
in CMP No.14996 of 2005}
Revision under section 115 of the Civil Procedure Code is preferred against the judgment and decree dated 21.6.2005 made in CMA No.2 of 2004 on the file of the Subordinate Judge, Ranipet, Vellore District confirming the order and decretal order dated 15.12.2003 made in I.A.No.272 of 2003 in O.S.No.200 of 2001 on the file of the District Munsif Court, Sholingur.
For Petitioner : Mr.K.V.Ananthakrushnan
For Respondents : Mr.K.V.Subramaniyan,
Senior Counsel
ORDER
This Civil Revision Petition arises out of the dismissal of a petition for restoration of a suit.
2. I have heard Mr.K.V.Ananthakrushnan, learned counsel for the petitioner and Mr.K.V.Subramanian, learned Senior Counsel for the respondents.
3. The petitioner filed a suit in O.S.No.200 of 2001, on the file of the District Munsif Court, Sholingur against one G.Babu (the first respondent herein) and one G.Subramania Chetty, whose wife, 2 sons and a daughter are the respondents 2 to 5 herein. The suit was for a decree for partition and separate possession of 1/3 share of the petitioner in suit 'A' and 'B' schedule properties and for a permanent injunction restraining the defendants from taking water from the 'B' schedule bore well to non-ayacut lands in schedule 'A' property.
4. On 13.8.2003, the District Munsif, Sholingur, dismissed the suit on the ground that the plaintiff did not participate in the proceedings. Therefore, the petitioner/plaintiff filed an application in I.A.No.272 of 2003 under Order IX, Rule 9 read with Section 151 CPC, seeking to set aside the dismissal of the suit and to restore the suit to file.
5. By an order dated 15.12.2003, the District Munsif, Sholignur, dismissed I.A.No.272 of 2003, on the ground that the decree of dismissal of the suit was under Order XVII, Rule 3 CPC, and that therefore as against the decree so passed, the petitioner cannot come up with an application under Order IX, Rule 9 CPC.
6. The petitioner filed an appeal in CMA No.2 of 2004, on the file of the Sub Court, Ranipet, against the decision of the District Munsif. But the Sub Court, Ranipet, also dismissed the appeal, forcing the petitioner/plaintiff to come up with the present Civil Revision Petition.
7. The present controversy has arisen in view of the distinction maintained in the Code between the dismissal of a suit for default under Order IX, Rule 8 and the dismissal of a suit in terms of Order XVII, Rule 3 CPC. If a suit is dismissed on account of the non-appearance of the plaintiff, when the suit is called on for hearing, in terms of Order IX, Rule 8, such a dismissal of the suit, will not amount to a decree, in view of the fact that the definition of the word "decree" under Section 2(2) excludes an order of dismissal for default under Clause (b). Therefore the only remedy open to a person whose suit is dismissed in terms of Order IX, Rule 8, is to seek restoration under Order IX, Rule 9. There is a bar for such a person under Order IX, Rule 9 from bringing a fresh suit on the same cause of action, despite the fact that the dismissal under Rule 8 does not amount to a decree.
8. While Order IX, Rule 8 enables a Court to dismiss a suit if the defendant appears but the plaintiff fails to appear when the suit is called on for hearing, Order XVII, Rules 2 and 3, provide different alternatives for the Court. Rules 2 and 3 of Order XVII read as follows:-
"2. Procedure if parties fail to appear on day fixed. -- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
{Explanation. -- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.}
3. Court may proceed notwithstanding either party fails to produce evidence, etc. -- Where any party to suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, --
(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."
9. Thus Rule 2 of Order XVII, gives an option to the Court to proceed and dispose of the suit in any one of the modes, as prescribed in Order IX. Similarly, Clause (b) of Rule 3 also gives an option to the Court to proceed in terms of Rule 2 (in other words in terms of Order IX), if the parties are or any of them is absent. But Clause (a) of Rule 3 of Order XVII, enables the Court to decide the suit forthwith, if the parties are present, but any of them failed to produce his evidence or perform any other act necessary for the further progress of the suit.
10. Obviously Rules 2 and 3 of Order XVII contemplate three different situations viz.,
(i) where the parties (meaning thereby, both sides) are absent;
(ii) where any of them fail to appear or
(iii) where the parties are present but any of them failed to produce his evidence or cause the attendance of witnesses or to perform any other act necessary for the further progress of the suit.
11. If a situation as stated in (i) or (ii) in the preceding paragraph occurs, the Court has several options as prescribed in Order IX. But if the situation as stated in (iii) of the preceding paragraph occurs, the Court has the power to proceed to decide the suit forthwith.
12. In the case on hand, it appears that the petitioner/plaintiff filed the suit for partition and permanent injunction on 20.9.2001 and moved an application for interim injunction, in I.A.No.504 of 2001. An interim injunction was granted on 20.9.2001 and the petitioner also filed applications for police aid and for punishing the respondents for violating the order of injunction. The petitioner also appears to have filed a Transfer Petition in which the District Court directed the District Munsif Court to dispose of all the pending interlocutory applications within 3 weeks and to dispose of the suit within 4 months thereafter.
13. Therefore the District Munsif took the application for injunction I.A.No.504 of 2001 for enquiry. It appears that certain documents were marked in the application for injunction and the application was adjourned from time to time, at the request of the petitioner. Frustrated at such repeated adjournments, the trial Court decided to take up the suit for disposal, even without disposing of the interlocutory applications and directed the petitioner to proceed with the trial in the main suit. But it appears that the petitioner insisted on the application for injunction being disposed of first, as per the order passed by the District Court in the Transfer Petition. Not agreeing with such a contention on the part of the petitioner/plaintiff, the trial Court proceeded to dismiss the suit on 13.8.2003.
14. Since the manner in which the trial Court proceeded to dismiss the suit is the basis for the controversy on hand, I summoned the records from the Courts below and perused the docket orders passed in the suit. It is seen from the docket entries in the original suit that the suit was taken on file on 20.9.2001 and posted to 12.10.2001. On 12.10.2001, service of summons on both defendants had been completed and the second defendant entered appearance through counsel. The suit was adjourned on several occasions for the written statement of the defendants and also for the reason that the advocates were on boycott from December 2001 to June 2002. Therefore the petitioner appears to have approached the District Court for the transfer of the suit. The District Court passed an order on 16.8.2002, directing the District Munsif, Arakkonam, who was in charge of District Munsif Court, Sholingur, to dispose of I.A.No.504 of 2001, within 3 weeks of the receipt of the order and to dispose of the suit within 4 months thereafter. It is only thereafter that the first defendant filed the written statement on 27.11.2002. Even after the written statement was filed on 27.11.2002, the matter was adjourned for "issues and trial", for more than 6 months. The issues were actually framed on 6.6.2003 and the trial Court directed the parties to file the list of documents and witnesses within 2 weeks. The suit was listed for trial on 23.6.2003, 27.6.2003, 4.7.2003, 11.7.2003, 5.8.2003 and 13.8.2003. On 13.8.2003, the District Munsif passed the following docket order:-
"Plaintiff present with counsel. Defendant called absent but D1 present. D2 counsel made a representation that he is ready to face the trial. When the plaintiff counsel made a representation, he is ready for enquiry in I.A.No.504 of 2001. When I perused the suit, which is ripe for trial and posted the suit as L.C. I called the plaintiff who is present, but he is stated that the I.A., to be disposed before the suit. The requisition of the plaintiff is not satisfied me. Because the plaintiff filed a suit for relief, which the plaintiff is unwilling to participate in the trial. The plaintiff is not desire to participate trial proceeding. I am unable understand why the plaintiff is hesitate to face trial. Despite the suit is posted for trial as L.C. When I called the plaintiff, the plaintiff present but he is not ready to face the trial. So the suit is dismissed for non-prosecution with costs."
15. Apart from passing the docket order extracted above, the District Munsif also rendered a decision in the suit, in Tamil, which reads as follows:-
VERNACULAR ( TAMIL ) PORTION DELETED
16. When translated, the decision rendered in the suit, would read as follows:-
"This is a suit filed by the plaintiff seeking a division of schedule 'A' and 'B' properties into three equal shares and to allot one such share to the plaintiff and for a permanent injunction restraining the defendants from taking water from the bore well situate in schedule 'B' land to non-ayacut lands situate in schedule 'A' property and for costs.
The issues framed in the suit are :-
(a) Whether the plaintiff is entitled to have a division of suit 'A' and 'B' schedule properties into three equal shares and for the allotment of one share to him?
(b) Whether the plaintiff is entitled to have a decree for permanent injunction restraining the defendants from taking water from the 'B' schedule property to the lands other than 'A' schedule lands?
(c) To what other relief, the plaintiff is entitled, if any?
On account of the failure of the plaintiff to participate in the trial of the suit, the suit is dismissed with costs, for the default on the part of the plaintiff;"
17. In the light of the aforesaid facts, Mr.K.V.Ananthakrushnan, learned counsel for the petitioner contended that the dismissal of the suit was only for default and that it cannot be construed as a decree under Order XVII, Rule 3 (a), as the trial Court did not decide the suit in terms thereof. In support of his said contention, the learned counsel for the petitioner relied upon the following decisions:-
(1) Pugal Vs. Kamala {1984 (1) MLJ 414} (2) Shri Prakash Chander Manchanda Vs. Smt.Janki Manchanda {100 L.W. 116} (3) Sri Mahaveer Waste Factory Vs. Swadeshi Cotton Mills {1996 (1) CTC 205} (4) P.Ganesan Vs. UCO Bank and 2 Others {1998 (2) L.W. 592} (5) T.Kalyanasundaram Vs. M.S.Arumuganayakar {2005 (4) CTC 451}
18. In response, Mr.K.V.Subramanian, learned Senior Counsel for the respondents contended that the trial Court was compelled to dismiss the suit only under Order XVII, Rule 3, in view of the defiant attitude on the part of the petitioner in refusing to participate in the proceedings. The petitioner was actually in enjoyment of an order of injunction from 20.9.2001 and was filing application after application to continue to enjoy the benefit of the order of injunction. Therefore the Court had a duty to put an end to such tactics, as they amounted to an abuse of the process of Court. Therefore, according to the learned Senior Counsel, the dismissal has to be construed as one under Order XVII, Rule 3, operating as a decree, disentitling the petitioner to the remedy under Order IX, Rule 9 CPC. In support of his said contentions, the learned Senior Counsel relied upon the following decisions:-
(1) Prativadi Bhayankaram Pichamma alias Mangamma Vs. Kamisetti Sreeramulu {Vol.34 MLJ 23 (Full Bench)} (2) C.Chennaiya Naidu Vs. Panchayat Board, Venukadathampatti {AIR 1979 Madras 135} (3) Soopi Haji & 4 Others Vs. R.M.Ramanathan Chettiar {1993 (2) L.W. 146} (4) B.Janakiramaiah Chetty Vs. A.K.Parthasarthi {2003 (2) CTC 242} (5) THAKUR JI RAM JANKI JI Vs. SHANKAR DAYAL {(2006) 9 SCC 187}
19. In Pugal Vs. Kamala {1984 (1) MLJ 414}, a Division Bench of this Court held as follows:-
"The fact that the Court has cited the provisions of Order 17, Rule 3 (a) for the purpose of dismissing the suit will not be conclusive on the question whether the decision was on the merits or not. In every case the Court will have to lift the veil and find out whether really the decision was on merits. If the Court comes to the conclusion that the suit happened to be dismissed really on the ground of non-prosecution on the part of the plaintiff, then notwithstanding the fact that the provision of Order 17, Rule 3 (a) has been cited by the Court, it will be open to consider the order as really one for non-prosecution and not on the merits. If an order in law and substance is an order under Order 9, though purported to be under Order 17, Rule 3 it would cause unnecessary expenditure of time and money to an aggrieved party if he is compelled to file an appeal instead of an application for restoration. Obviously, in a majority of such cases, particularly in cases where the suit is dismissed for non-prosecution, the decree cannot be at all on the merits as there will be no evidence at all for the Appellate Court to consider. The present case is a clear illustration of the same. In such a case all that the Appellate Court could do, if it accepts the case of the appellant, will be to set aside the decree on the ground that the trial Court was not justified in proceeding under Order 17, Rule 3 and remand the case. Thus the parties will be in the same position as they would have been if the defaulting party had been originally permitted to file a restoration application and had not been compelled to file an appeal. We are of the opinion that notwithstanding the fact the Court purports to act under Order 17, Rule 3, if the circumstances set out by the Court are such that an order under Order 9 read with Order 17, Rule 2 could be legally justified and the actual order passed is one which could be legally passed under Order 9 read with Order 17, Rule 2 it is permissible for the Court to entertain an application for restoration under Order 9. In this case, even though the party was present his appearance must be deemed to have been only for the purpose of requesting for an adjournment. Once the adjournment was refused, there was default on his part to prosecute the suit further."
20. In Shri Prakash Chander Manchanda Vs. Smt.Janki Manchanda {100 L.W. 116}, the Supreme Court held as follows:-
"The Explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remains absent and for that party no evidence has been examined upto that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure."
21. While following the aforesaid decision of the Supreme Court, S.S.Subramani, J., held in P.Ganesan Vs. UCO Bank {1998 (2) L.W. 592}, that it is not the physical presence of the party that is essential, but his appearance must be for the further progress of the suit and that on such an interpretation, if a party is treated as absent (despite his physical presence), the only course open to the Court was to dismiss the case for default. Moreover, the learned Judge extracted from the commentary on Order XVII, Rule 3 CPC, from Mulla on Code of Civil Procedure (15th Edition) as to the requirements of Order XVII, Rule 3 and held that unless the case was posted for production of evidence, at the request of the party, the Rule could not be invoked.
22. In B.Janakiramaiah Chetty Vs. A.K.Parthasarathi (2003 (2) CTC 242}, the Hon'ble Supreme Court gave an indication in paragraph-7 of its decision that "in order to determine whether the remedy under Order IX is lost or not, what is necessary to be seen is whether in the first instance the Court had resorted to the explanation of Rule 2 (of Order XVII)". Thereafter, the Supreme Court analysed Rules 2 and 3 and recorded the text of the judgment of the trial Court in paragraph-11 of its decision. As in the case on hand, the decision of the trial Court in that case also consisted only of three parts viz., the first part containing the prayer, the second part containing the issues framed and the third part containing the decision. After extracting the judgment of the trial Court in paragraph-11 of its decision, the Supreme Court held as follows in paragraphs-12 and 13 :-
"12. This clearly has imprints of an ex parte adjudication and not of a decision on merits. There is not even any indication as to what evidence was evaluated and/or whether the merits were tested."
"13. The matter can be looked at from another angle. In the absence of any indication as regards merits of the case, preferring an appeal will be really inconsequential. It is more so when no definite ground of appeal can be pressed into service, except making generalized challenges. It certainly cannot be the legislative intent."
23. In the Full Bench decision of this Court in Prativadi Bhayankaram Pichamma case {Vol.34 MLJ 23 (Full Bench)}, relied upon by Mr.K.V.Subramanian, learned Senior Counsel for the respondents, it was held that "the correct rule is to treat rule 3 as applying only to cases where the parties are present and have not satisfied the Court as to the existence of any adequate reason for their not having done what they were directed to do."
24. In C.Chennaiya Naidu's case {AIR 1979 Madras 135}, relied upon by the learned Senior Counsel for the respondents, Balasubrahmanyan, J., held in paragraph-5 as follows:-
"5. If the plaintiff is absent when a suit is called, it is open to the Court to dismiss the suit for default of appearance. Such a dismissal is not a decision in the suit, but a refusal by the Court to deal with the suit, because of the absence of the party. Where, however, the plaintiff is present, but for some reason or other, he does not prosecute the suit, then the Court is enjoined under Order 17, Rule 3 to 'decide the suit'. The implication of the rule is that if there are some materials before the Court at the stage at which the default of the party occurs, then the Court is nevertheless obliged to decide the suit on the basis of those materials already on record. But it may well happen that a default may occur on the part of a party who is present in Court and at a time when there are no materials or no adequate materials for the Court to proceed upon for the purpose of deciding the suit on merits. Even in such a case, the Court has somehow to proceed with the suit and when it does so it will be only 'deciding' the suit, in terms of the language of Order 17, Rule 3. Whereas in this case, the plaintiff being present, commits default, in the sense that he does not get on with the trial by calling evidence, then the Court may have no alternative except to dismiss the suit. But even so, what the Court does when it dismisses the suit for non-prosecution is to decide the suit. It is a decision in the suit, a decision of the suit and none the less so for its being dismissed for default. If so much is granted, then the decision of the Court in this case must be regarded as a decree against which an appeal certainly lies. I am, therefore, in agreement with the learned District Judge when he upheld the maintainability of the appeal."
25. However, the learned Judge also held in paragraph-17 as follows:-
"17. At the end of all this discussion, it seems to me that in a matter arising under Order 17, Rule 3 of the Code, one can only safely proceed on the particular facts of the case to find out if the default in question is one of a kind for which the said rule expressly provides. If the facts show that the plaintiff was present, but being present had committed one or other of the defaults mentioned in the Section, then the Court proceeds only under Order 17, Rule 3. In such a case, by definition, it cannot proceed under Order 17, Rule 2. Applying this test, I am satisfied that what the trial Court did in this case when it dismissed the suit for non-prosecution was a decree and was appealable as such."
26. In THAKUR JI's case {2006 (9) SCC 187}, relied upon by the learned Senior Counsel for the respondents, it was held in paragraph-3 as follows:-
"3. Order 17 Rule 3 of the Code of Civil Procedure, 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 the 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 Order 17."
27. All the decisions relied upon by the learned counsel on both sides, on a careful consideration, do not air conflicting views. On a plain reading of Rules 2 and 3 of Order XVII, all the learned Judges, whose decisions are relied upon by both sides, have clearly pointed out -
(a) that to invoke Rule 2, it is enough if there is a failure of the parties or any of them to appear, on the day to which the suit is adjourned;
(b) that to invoke the explanation under Rule 2, some evidence should have already been recorded and the party, whose further evidence is to be recorded, has failed to appear; and
(c) that to invoke Rule 3, there must be a failure of a party to whom time has been granted, to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary for the further progress of the suit.
If the occasion had arisen for a Court to invoke Rule 3, on account of the failure of the party to whom time was granted to produce evidence or witnesses, then the Court is granted two options, one under Clause (a) and another under Clause (b). The option under Clause (a) is available if both parties are present. The option under Clause (b) is available if both of them are or any one of them is absent.
28. Keeping the above fundamental principles which underlie all the above decisions, in mind, if we look at the docket sheet entries of the suit papers in the present case, it is seen that the issues were framed on 6.6.2003 and the suit was posted to 23.6.2003. The orders passed on the subsequent dates of hearing are as follows:-
23.06.2003 Trial. Adjourned to 27.6.2003.
27.6.2003 Trial. Adjourned to 4.7.2003.
4.7.2003 Trial. Adjourned to 11.7.2003.
11.7.2003 Trial. Adjourned to 5.8.2003.
5.8.2003 Trial. Adjourned to 13.8.2003 as L.C..
29. The adjournment granted on 5.8.2003 is as a last chance (L.C.). Therefore the order passed on 5.8.2003, under normal circumstances, can be taken to be an order by which the plaintiff was directed to do something for the further progress of the suit. Consequently, the occasion to invoke Rule 3 can be taken to have arisen in the present case, but for one hitch. Simultaneously with the suit, the hearing of the application for injunction I.A.No.504 of 2001 was also being taken up and enquiry was going on. In the docket entry in I.A.No.504 of 2001, the Court has passed the following order on 5.8.2003:-
"5.8.2003 Enquiry. Heard from the petition Ex.A4 to Ex.A7 marked. For respondent side by 13.8.2003."
Therefore it is clear that on 5.8.2003, the application for injunction was adjourned to 13.8.2003 for hearing the respondent's side and simultaneously the suit was adjourned to 13.8.2003 for trial as last chance. The petitioner/plaintiff was admittedly ready for enquiry in the application for injunction on 13.8.2003, as there was an order passed by the District Court to dispose of the application, before the disposal of the suit. In such circumstances, the adjournment of the suit from 5.8.2003 to 13.8.2003, cannot be taken to fulfil the requirement of Rule 3 of Order XVII.
30. Even if, for the sake of argument, the order passed on 5.8.2003, adjourning the suit for trial to 13.8.2003 as last chance (L.C.), is taken to satisfy the requirement of Rule 3 that the plaintiff was granted time to produce his evidence but failed to do so, there are two more steps in the process viz., the Court should see (i) if all the parties are present, so as to proceed in accordance with Clause (a) of Rule 3 or (ii) if any of the parties is absent, so as to proceed under Rule 2. It is seen from the docket order passed in the present case that the plaintiff and his counsel were present on the fateful day viz., 13.8.2003. But it is not clear whether both defendants were also present, since the entry made by the trial Court, to say the least, is confusing in this regard. It says "defendant called absent but D1 present. D2 counsel made a representation that he is ready to face the trial". Therefore it is not known whether the condition for invoking Clause (a) of Rule 3 was satisfied or not.
31. But, even if, for the sake of argument, it is presumed that all the parties were present and all the conditions for invoking Rule 3 as well as Clause (a) of Rule 3 were fulfilled, the Court is obliged under Clause (a) of Rule 3 "to proceed to decide the suit forthwith". In this case, it is seen from the docket entry as well as the text of the judgment, passed on 13.8.2003 by the trial Court, both of which are extracted in paragraphs-14 and 15 above that the trial Court did not "decide the suit" but just "disposed the suit" specifically pointing out the default on the part of the plaintiff. In such circumstances, the Court below cannot be taken to have "proceeded to decide the suit". Unless there is some kind of a discussion on the merits of the case and a recording of the reasoning which impelled the Court to come to the conclusion that it did, the Court cannot be taken to have "decided the suit". It must be borne in mind that Rule 2 merely directs the Court to "proceed to dispose of the suit" and the explanation under Rule 2 directs the Court to "proceed with the case". It is only under Clause (a) of Rule 3 that the words "proceed to decide the suit forthwith" is used. Interestingly, none of the Rules under Order IX also uses the expression "to decide the suit", though some of them use the expression "dismiss the suit". Therefore the disposal given by the trial Court, to the suit, on 13.8.2003, cannot be taken to be a "decision" in accordance with Clause (a) of Rule 3 of Order XVII. In such circumstances, the order of the trial Court as well as the Appellate Court, refusing to entertain the application under Order IX, Rule 9, on the ground that the suit was disposed of in terms of Order XVII, Rule 3, is erroneous. Therefore they are liable to be set aside.
32. Mr.K.V.Subramanian, learned Senior Counsel for the respondents, raised one last issue, relating to the conduct of the petitioner. The petitioner was in enjoyment of an order of injunction and his refusal to get along with the trial of the suit, according to the learned Senior Counsel, should be viewed seriously by Courts. According to the learned Senior Counsel, the trial Court was left with no alternative except to dismiss the suit, only in view of his refusal to get along with the suit, while enjoying an order of injunction.
33. Though the aforesaid contention is legally correct, it does not appear to be factually correct. An ex parte interim injunction was granted on 20.9.2001 in favour of the petitioner/plaintiff. On 4.10.2001, the first respondent was set ex parte and the second respondent entered appearance through counsel and sought time to file counter. Thereafter, the application was adjourned from 9.10.2001 onwards, upto 14.4.2002, for the reason that the advocates were on boycott. In the meantime, the first respondent who was set ex parte, filed an application in I.A.No.562 of 2001 under Order IX, Rule 7 CPC, and it was pending. Even after 14.4.2002, the hearing of the application was adjourned not at the request of the petitioner but on account of other reasons. Therefore it was the petitioner who approached the District Court for a transfer of the suit. The respondents against whom an injunction was in force, do not appear to have filed any application for vacating the injunction or made any attempt to get the case transferred for an earlier disposal. It was at the instance of the petitioner that a direction was issued by the District Court to dispose of the application for injunction as well as the suit within a time frame. As a person in enjoyment of an order of injunction, the petitioner could have refrained from seeking a transfer and an early disposal, especially when the respondents were not bothered about the injunction operating against them. Therefore the allegation against the petitioner as though he wanted to protract the proceedings, so as to continue to enjoy the injunction, appears to be uncharitable. The application for injunction was taken up on 13.9.2002 and both sides appear to have argued, marked certain documents as exhibits and also filed written arguments. On 27.11.2002, the first respondent entered appearance through a different counsel and the enquiry was adjourned to 11.12.2002. On that date, an application to reopen was filed by the petitioner. Thereafter till 26.2.2003, the case was adjourned from time to time due to the absence of the Presiding Officer. The docket entries from 12.3.2003 upto 4.7.2003 show no reason for the adjournments. On 4.7.2003, the application to reopen was allowed and the injunction application was posted to 11.7.2003 and then to 5.8.2003. On 5.8.2003, the petitioner marked 4 documents as Exx.A4 to A7 and the case was adjourned to 13.8.2003 for the arguments of the respondents. On 13.8.2003, the application for injunction was dismissed in view of the dismissal of the suit. Therefore the contention of the learned Senior Counsel for the respondents that the petitioner dragged on the suit, to retain the benefit of the interim order of injunction, is not factually correct.
34. In view of the above, this Civil Revision Petition is allowed, the order of the District Munsif, Sholingur dated 15.8.2003 in I.A.No.272 of 2003 in O.S.No.200 of 2001 and the order of the Sub Court, Ranipet, dated 21.6.2005 in CMA No.2 of 2004 are set aside. Since the dismissal of the application under Order IX, Rule 9, by both the Courts below, was only on a technical ground, I would, under normal circumstances, remit the application back to the trial Court for a fresh disposal on merits. But an order of remand would only prolong the agony of both parties, since the suit is of the year 2001 and any order passed by the trial Court after remand, would also be subject to an appeal and a revision. Therefore I have also considered the application of the petitioner and the affidavit in support thereof and I find that the application deserves to be allowed. Therefore, the application of the petitioner in I.A.No.272 of 2003 in O.S.No.200 of 2001 shall stand allowed and the District Munsif, Sholingur is directed to proceed with the trial of the suit and dispose it of in accordance with law, within a period of 3 months from the date of receipt of a copy of this order. It is made clear that any observations contained herein shall not have a bearing upon the merits of the dispute between the parties.
35. The Civil Revision Petition is allowed on the above terms. No costs. Consequently connected miscellaneous petition is closed.
Svn To
1.The Sub Judge, Ranipet, Vellore District.
2.The District Munsif, Sholingur