Bombay High Court
M/S. Devidayal Sales Pvt.Ltd vs The State Trading Corporation on 25 February, 2009
Equivalent citations: 2009 (6) AIR BOM R 196, 2010 A I H C 752 AIR 2010 (NOC) (SUPP) 271 (BOM.), AIR 2010 (NOC) (SUPP) 271 (BOM.)
Author: A.A. Sayed
Bench: A.A. Sayed
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This Order is modified/corrected by Speaking to Minutes Order
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.4424 OF 2007
IN
SUIT NO. 725 OF 1979
M/s. Devidayal Sales Pvt.Ltd. ... Plaintiffs.
Vs.
The State Trading Corporation
of India & Anr. ... Defendants.
Mr. Girish Desai i/b. M/s. Gordhandas & Fozdar for the
plaintiffs.
Mr. Hemant Prabhakar i/b. Juris Consultancy for the
defendants.
CORAM : A.A. Sayed, J.
DATE : February 25, 2009.
JUDGMENT ig :-
1. This motion has been filed on behalf of the
plaintiffs for restoration of the suit, which was
dismissed by this Court on 22nd October,2007 for
non-prosecution.
2. An affidavit in support of the motion has been
filed by an Assistant Advocate working with M/s.
Gordhandas & Fozdar, Advocates for the plaintiffs. The
suit was instituted in September 1977 and it was
numbered sometime in 1979. The suit is filed for
damages in a sum of Rs. 3,62,920/- together interest @
15% per annum from the date of the suit till payment, in
respect of non-delivery of goods to the plaintiffs by
the defendants. The evidence was recorded before the
Commissioner appointed in the matter. The suit was then
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kept for arguments before the Court. The arguments on
behalf of the defendants by their Counsel were advanced
and completed and the arguments on behalf of the
plaintiffs, were partly heard. Thereafter because of
the change of the assignment, the matter was notified
before another Judge.
3. On 22nd October, 2007, when the matter was
called out, the deponent who has affirmed the affidavit
in support of the motion and who is a junior lady
Advocate, working with Gordhandas & Fozdar, Advocates
for
on the
the
ground
plaintiffs,
that
appeared
the
and sought
plaintiffs'
an
Counsel
adjournment
was
hospitalised on 7th October, 2007 and he was discharged
after a week and was advised bed rest for 10 more days
and, therefore, the Counsel could not remain present on
that day. It is stated in the affidavit that the
advocate on record who is the Senior of the deponent was
out of station on 22.10.2007 for his personal work and
no arrangement could be made for appointing another
Counsel for arguing the matter. It is further averred
by the deponent that she, being a new entrant in the
profession, had no instructions and was not able to
argue the matter. However, as the Court was not
inclined to adjourn the matter, the matter was initially
kept back and was ultimately dismissed for
non-prosecution in the afternoon session.
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4. The learned Counsel for the plaintiffs at the
outset asserted that it was not open for the Court to
dismiss the suit for non-prosecution. According to the
learned counsel, the learned Single Judge ought to have
either granted the adjournment or proceeded with the
case and passed appropriate judgment in the suit on
merits as the evidence was over in the matter and was on
record. The learned Counsel contended that sufficient
grounds were made out for the Counsel to have not
remained present before the Court on that day and that
the
personal
advocate
work.
on record
It is
was
submitted
also out
that
of
the
station
junior
for his
Advocate
was not having any instructions in the matter and being
a new entrant, she could not have argued the matter. It
is therefore urged that the suit be restored to file and
be heard on merits.
5. The learned Counsel for the defendants, on the
other hand, pointed out that the suit was instituted
sometime in 1977. He submitted that neither the
Counsel, nor the advocate on record was present and the
junior Advocate was not in a position to argue the
matter. The Ld. Counsel contended that in these
circumstances it was open for the Court to have
dismissed the suit on account of non-prosecution. He
drew my attention to the observations made in para 2 of
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the impugned order, wherein the learned Single Judge has
observed thus - "It was made clear that if the Counsel
appearing for the plaintiffs failed to appear, in that
case, the advocate on record should take responsibility
of pursuing the matter". He submitted that no
sufficient cause is made out for restoration of the suit
and urged that the Notice of Motion be dismissed.
6. I have heard the learned Counsel for the parties
and perused the material on record.
7.
1908, provides the
Order 17 Rule 2 of the Code of Civil Procedure,
course for the Court to adopt in such
a situation viz. where the parties fail to appear on a
day when the case is fixed for hearing. Order 17 Rule 2
reads thus :-
"O.17
O.17 R.2.- Procedure if parties fail to appear
on
n 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.
8. A bare reading of the above Rule 2 reveals that
where a party fails to appear, the Court, if it is not
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inclined to grant an adjournment, has the option to
dispose of the suit by proceeding in the mode provided
under Order 9 (which deals with appearance of parties
and consequence of non-appearance at the time of
hearing) or to 'make such order as it thinks fit'. The
Explanation clarifies that in cases where the evidence
in the suit has already been recorded (as is in the
present case) or substantial portion of the evidence is
recorded, then the Court has the "discretion" to proceed
with the case by assuming that the other party is
present - in other words proceed to pass judgment on
merits.
9. In the case in hand, the Court has refused to
grant an adjournment and has exercised it's discretion
to proceed to dispose of the suit by dismissing the
same, apparently under Order 9 Rule 8, which speaks of
the procedure where the defendant only appears and the
plaintiff does not appear. The Court has chosen not to
proceed to decide the matter by passing judgment on
merits. This course adopted by the Court was, in my
view, well within the four corners of Order 17 Rule 2,
which is applicable to the facts of the present case.
To say that if the Court was not in favour of granting
an adjournment, it was incumbent upon it to decide the
case on merits, would to my mind, be reading something
more in the Rule, than what is contemplated. In my
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opinion, no such duty is cast upon the Court as is
suggested by the learned Counsel for the plaintiffs.
10. Though the case squarely falls in Order 17 Rule
2, useful reference may also be made to the provisions
of Order 17 Rule 3. Order 17 Rule 3 reads thus -
"O.17 R.3" - Court may proceed notwithstanding
either party fails to produce evidence, etc. -
Where any party to a suit to whom time has been
granted fails to produce his evidence, or to
cause the attendance of his witness, 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, ig -
(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.
11. The rule thus provides that if the parties are
present, then Rule 3 would be applicable, and in the
event the parties are absent then one needs to revert to
Rule 2. Since in the present case, the plaintiffs were
not present, Rule 2 would apply. It is ofcourse now a
settled law that the appearance of the counsel is
treated as appearance of the party, who he is
representing.
12. This brings us to the question whether in the
instant case, when the junior Counsel is present and
appears before the Court without instructions and merely
for the purpose of taking an adjournment, can it be
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treated as non appearance within the meaning of Order 17
Rule 2. This Court had the occasion to deal with a
similar issue in the case of Prashant Vagaskar Vs. MCGM
reported in AIR 2002 Bom 120.
120 In that case the Learned
Single Judge of this Court (Daga J.) observed in para 21
of his Judgment as under:
"21.... In other words, appearance/presence
should be for the purpose of taking part in the
proceeding and that it includes preparedness to
cite evidence and/or to produce documents or to
take any other step for disposal of the
suit/case as may be considered necessary.
Therefore, if a party to a suit for some reason
or other is precluded from being ready to take
part in
ig the prosecution of the suit but somehow
manages to come with a view that the case should
be got adjourned for some other day, his
appearance in such a circumstances will not
amount to an appearance as contemplated under
Order XVII, Rule 2 of Civil Procedure Code. In
this view of the matter, the appearance of the
plaintiff on 30-8-2001 was no appearance for the
purpose of the suit."
13. The Learned Single Judge has in the above
judgment relied upon the Full Bench decision of the
Calcutta High Court in the case of SATISH CHANDRA
MUKERJEE VS. AHARA PRASAD MUKEREJEE, (1907) ILR 34 Cal.
403, wherein it was unanimously held by the 5-Judge
Bench as under:
"The term 'appearance' is nowhere defined in
the Code and as pointed out by Benson, J. in
Seeley V. Evans (1838-19 Wendell 459) has
several significations the word must always be
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understood in reference to the particular
subject matter to which it relates and the
purpose or end to be answered by the
appearance has an important bearing in
determining what is sufficient to constitute
appearance in a particular case. It seems to
me that having regard to the scope of Section
556 of the Civil Procedure Code and the object
to be gained by the attendance or appearance
of the counsel to make ail (sic an)
application for adjournment ought not to be
treated
jurisdiction
as
under
appearance
Section
so
558
as
of
to
the
oust the
Civil
Procedure Code, if proper cause is shown.
Upon refusal of the application for
adjournment, if counsel declines to go on with
the case, there is at that time no appearance
on behalf of the party. I do not feel much
pressed by the reference made to the case in
which evidence may have been taken and which
has been partially argued."
14. It is noteworthy that the High Court Amendment
of Andhra Pradesh adds an Explanation to Order 17 Rule 2
of the Code, to the effect that the mere presence in
Court of a party or his counsel not duly instructed
shall not be considered to be an appearance of the party
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within the meaning of this rule.
15. Thus, the presence of a Counsel has to be an
effective presence, not mere physical presence. The
Counsel should be ready with the matter and be able to
assist the Court. The appearance of a Counsel who has
instructions only to apply for an adjournment or to have
the matter kept back cannot be considered as an
appearance at all in the context of Order 17 Rule 2 or
Order 9 Rule 8 of Code of Civil Procedure. If one
peruses the Vakalatnama, it ordinarily mentions the
words
party.
"act
The
appear
appearance
and
of
plead"
a
for
Counsel
and
who
on
is
behalf
not
of
able
the
to
or unwilling to plead the cause of his client can hardly
be termed as an appearance. It may be mentioned that it
has become a matter of routine and everyday practice in
this Court to let juniors appear and seek adjournments
or have the matter kept back and many a times they are
not even aware about the subject matter. Their presence
cannot be termed as their "appearance" for the purposes
of Order 17, Rule 2.
16. For a judge to feel compelled to write a
judgment without hearing the case of the plaintiff,
would in my view, be undesirable in cases involving
complicated questions of law and facts and the judgment
would be more vulnerable to attack if it is challenged
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in Appeal, with a fair chance of the matter, in
appropriate cases, having being remanded to the trial
court to grant an opportunity to the plaintiffs to be
heard. It is to be borne in mind that even the evidence
which is recorded in the present matter is not by the
same judge, but before a Commission (as is now routine
in this Court after the amendment of 2002). It should
be best left for the Judge to judge having regard to the
evidence on record, whether he wants to write a judgment
on merits or dismiss the suit or 'make such order as he
thinks fit', in the event he is not inclined to grant an
adjournment
he thinks fit'
simplicitor.
used in
The
Rule 2
term
would
'make
be
such
an
order
alternative
as
to
the mode provided under Order 9 and would include giving
directions to the office to issue notice to any party if
the counsel pleads 'no instruction' or to pass a
conditional order or the like. The words "make such
order as he thinks fit" itself suggest that there are
other options available to the court than to write a
judgment on merits. It may be stated that even Rule 17
of Order 41 provides for dismissal of Appeal for non
prosecution notwithstanding the fact that the entire
material, including the evidence is before the Court.
17. Even otherwise, for the sake of illustration,
let us take an instance where in a case the evidence is
already recorded or substantially recorded and the
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parties clandestinely settle the matter amongst
themselves, without informing their Counsel so as to
avoid paying their fees, and the Counsel for the parties
appear before the Court without instructions and/or are
reluctant to go on with the matter in absence of the
parties and they have appeared only as a matter of
bounden duty and courtesy to the Court. Would the Court
then be obliged to pass a judgment on merits in absence
of any assistance by Counsel of the plaintiffs in the
matter? What if the matter was voluminous and involving
complex questions of facts and law? That said, I do
have
plaintiff
my
can
reservation
be heard
anyways,
to dictate to
whether
the Court
a
that
defaulting
the
suit should have been adjourned, else the Court should
have decided the suit on merits. In today's scenario,
considering the volume of business of the Courts, to
expect the Courts to decide suits finally after going
through the pleadings and evidence and other material on
record, without any assistance from the plaintiffs,
would in very many cases mean unnecessary waste of
precious time of the Court, when other deserving cases
could have been heard and I see no reason why the Court
should be compelled to write judgments of defaulting
plaintiffs. Ofcourse in a given case, after considering
the facts and circumstances, the court may on being
satisfied, use its judicial discretion and proceed to
decide the case on merits, particularly when the
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evidence or substantial portion of the evidence has been
recorded.
18. In view of the foregoing discussion, I am
unable to accept the proposition put forth by the
Learned Counsel for the plaintiffs that in the present
case that if the Court was not inclined to grant an
adjournment, it was incumbent upon it to have decided
the suit and passed a judgment on merits.
19 Coming to the factual aspect of the matter, it
is
instituted
to be
in
noted
that
1977.
the suit
The
is of
evidence
the
in
year
the
1979
matter
and was
was
already recorded by the Commissioner who was appointed
for the purpose and the matter was posted for arguments.
It is also clear from paragraph 2 of the impugned order
that the learned Single Judge had made it clear (in his
earlier order) that if the counsel for the plaintiffs
fails to appear, the advocate on record should take
responsibility of pursuing the matter. However, no
satisfactory explanation is given as to why the advocate
on record left Bombay when he knew that the matter was
likely come up on Board on 22.10.2007 for arguments. As
stated by the learned single judge, no leave note was
filed. It is merely stated in the Affidavit in support
of the motion that the Advocate on record had gone out
of station for his personal work. It is not stated as
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to which place he was required to visit or what was the
cause or urgency for leaving Bombay without having made
proper arrangements. While no fault can be attributed
to the absence of the learned Counsel, the conduct of
the Advocate on record seemed rather casual,
particularly when it was cautioned that the Advocates on
record should take responsibility in pursuing the matter
in absence of the counsel. Considering the provisions
of Order 17 rule 1 of Civil Procedure Code and the facts
and circumstances of the case, the Advocate on record
ought to have remained present or made alternative
arrangement, as is recorded by the learned Single Judge
in his order.
20. In the instant case the affidavit in support
of the motion is filed by an Assistant Advocate of M/s.
Gordhandas & Fozdar, the Advocates for the plaintiffs.
There is no affidavit by the plaintiffs. The affidavit
of the Assistant Advocate, if any, ought to have
preferably come in as and by way of supporting affidavit
to the plaintiffs' case in their affidavit. It is
desirable that the affidavit in support of the Notice of
Motion should be that of the plaintiffs so that the
plaintiffs are aware as to the happenings in their suit,
as it is possible that in a given case, if the suit is
dismissed on account of default on the part of the
Counsel, the plaintiffs are not even aware of the
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dismissal of their suit and the matter is sought to be
restored by filing affidavits by the advocates. In the
peculiar facts of the present case, I will assume that
the plaintiffs are made aware of the status of their
matter.
21. Though the explanation given by the plaintiffs
is not entirely satisfactory, taking an overall view of
the matter, in the interest of justice, I am inclined to
allow the motion, subject however, to costs. Higher
costs, in my view, are warranted looking to the facts
and
age
circumstances
and stage
ig of
of
the
the
suit
case
when
and
it
also
was
looking
dismissed.
at the
Since
the defendant has not filed any reply opposing the
motion, I am not awarding costs in their favour. I,
therefore, proceed to pass the following order :-
ORDER
(i) The notice of motion is made absolute in terms of prayer clause (a) subject to costs of Rs. 20,000/-
(Rupees Twenty Thousand) to be paid by the Plaintiffs to the High Court Legal Services Committee within six weeks. Upon the costs being deposited within the stipulated period, the suit be restored to file and be placed before appropriate Court on 08.04.2009 for directions.
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(ii) The statement of the learned Counsel for the parties is accepted that they will file written arguments in the matter so that the oral arguments can be curtailed and that they will co-operate as to dispose of the suit at the earliest.
(iii) The Notice of Motion to stand disposed of.
[A.A.Sayed, J.] ::: Downloaded on - 09/06/2013 14:22:21 :::