Andhra HC (Pre-Telangana)
Garuda Sakuntala vs A.V.M. Jagga Rao (Died) By Lrs. And ... on 29 September, 2000
Equivalent citations: 2000(6)ALD634, 2000(6)ALT396, 2001 A I H C 2911, (2000) 6 ANDHLD 634 (2000) 6 ANDH LT 396, (2000) 6 ANDH LT 396
Author: N.V. Ramana
Bench: N.V. Ramana
JUDGMENT
1. This Civil Miscellaneous appeal is filed by the appellant/plaintiff against the order dated 27-1-1997 in IA No.100 of 1993 in OS No,30 of 1987 passed by the I Additional Subordinate Judge, Visakhapatnam.
2. The case of the appellant is that she filed the suit for recovery of an amount of Rs.1,05,550/- against the respondents/ defendants. The suit was posted to 15-2-1993 for trial on payment of costs of Rs.60/- by the appellant to the other side. According to the appellant, she paid the costs of Rs.60/- to the Counsel appearing for the respondents and a memo was filed to that effect under GR No.799. The appellant stated in her affidavit filed in support of the petitioner in IA No.100 of 1993 that she filed a petition to send for the power of attorney, executed by Smt. Anikitam Ramadevi Bhanojirao in favour of the deceased first defendant- A.V.N. Jaggarao, from the office of the Sub-Registrar, Hyderabad, and that petition is neither numbered nor returned. According to her, her husband Garuda Visweswarao was looking after the present suit on her behalf and attending the Court on every date of adjournment, but on 15-2-1993, lie did not attend the Court, as he had been to Hyderabad. She stated that she could not proceed with the suit further on 15-2-1993 for want of the abovesaid power of attorney, and the suit was dismissed on 15-2-1993 on the ground that she (plaintiff) was absent. With the above averments, she filed IA No.100 of 1993 under Order 9, Rule, CPC to set aside the order dismissing the suit for default.
3. Respondents 1 and 4 died. No steps have been taken as against respondent No.2. Respondents 3, 5 and 6 filed their counter in IA No.100 of 1993, opposing the same and contending that there are no bona fides in the application.
4. The lower Court, by the impugned order, dismissed IA No.100 of 1993, taking into consideration the absence of the appellant/plaintiff on two prior occasions, i.e., 10-12-1992 and 29-12-1992. Hence, the present appeal.
5. Learned Counsel for appellant contended that the suit was dismissed even though the appellant paid the costs and that there is no negligence on the part of the appellant. Immediately on 17-2-1993, the appellant/plaintiff filed a petition to set aside the dismissal order dated 15-2-1993 explaining the reasons for her absence. According to Counsel, appellant is entitled to receive a huge sum of more than one lakh rupees with interest from the defendants, she is having a fair chance of success in the suit and dismissal of the suit without completion of trial is unwarranted.
6. Learned Counsel for respondents/ defendants contended that the appellant/ plaintiff did not pursue the suit; she failed to appear in the Court on 10-12-1992 and 29-12-1992 also; even on 15-2-1993 also, she did not appear though the matter is specifically posted for plaintiffs evidence. According to him, when once the suit is dismissed for default of the plaintiff, the Court should not exercise its jurisdiction under Order 9, Rule 9 CPC, to set aside that default dismissal order, as a matter of grace, To support this contention, he relied on the decision in Suryanarayanamurthy v. Ramabhadraraju, i960 ALT 904. The second contention of the respondents Counsel is that the husband of the plaintiff cannot automatically be entitled to prosecute the suit on behalf of his wife by virtue of his marital status unless the appointment of husband of plaintiff as agent of the plaintiff is reduced to writing and instrument to that effect is filed into Court as per the provisions of Order III, Rule 2 CPC and Rule 6 (i) of Order III CPC. To support this contention, he relied on the decision in Kunhibi v. LA. Officer, .
7. The point for consideration in this appeal is, whether the order under appeal is legal and sustainable in law?
8. I have perused the order under appeal. The trial Judge's order is prolix with redundant material. Added to this, he did not think it fit to write the order in simple and unmistakable language.
9. The learned Judge seems to have taken into consideration the absence of the appellant/plaintiff on some two earlier occasions (10-12-1992 and 29-12-1992). I may straight away observe that the past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was sufficient cause for non-appearance of the party on a particular subsequent date, i.e., the date on which the latest default is committed. In this case, the appellant seems to have not attended the Court on the earlier two occasions prior to 15-2-1993. I may usefully quote the ruling of the Supreme Court, though rendered while considering the provisions of Order 9, Rule 13 CPC, in G.P. Srivastava v. R.K. Raizada, 2000 (4) ALD 54 (SC), wherein it was held that the Court has to decide whether there was sufficient cause for the absence on the relevant date and a party cannot be penalised for his/her previous negligence which has been overlooked and condoned earlier. Therefore, in this case, the Court below is not justified in adverting to the previous conduct of the appellant/ plaintiff while refusing to set aside the default dismissal order. The Court below ought to have considered whether there was sufficient cause for the absence of the appellant/plaintiff on 15-2-1993 only, and not the previous conduct of the appellant. Hence the contention of the Counsel for respondents, that in view of the previous conduct of the appellant in not attending the Court the lower Court is right in dismissing the suit for default, cannot be accepted.
10. In the affidavit filed by the appellant/plaintiff in support of the petition in IA 100 of 1993, it is stated that the suit stood posted to 15-2-1993 for trial on payment of costs of Rs.60/- and on 15-2-1993 the costs of Rs.60/- were paid by the Counsel for appellant/plaintiff to the Counsel for the respondents/defendants.
It is also stated therein that a memo was filed to that effect under GR No.799.
11. But, in the order under appeal, the learned Judge noted the dates and events, probably from the suit docket. The learned Judge noted that the suit was posted from 29-12-1992 to 28-1-1993 on payment of costs of Rs.60/- and on 28-1-1993 costs of Rs.60/- were paid and the matter was adjourned at the request of the appellant/ plaintiff to 15-2-1993 on payment of costs of Rs.100/-. The order of the learned Judge is not clear regarding the dates and quantum of costs imposed and payment thereof. At one stage, at page No.3 lie states : "so, there is no dispute regarding the payment of costs (?) made by the petitioner's advocate to the junior advocate of Mr. L. Jagannadham." At another stage, towards the middle of page No.4 of his order, he again says "....Admittedly, the costs of Rs.100/- imposed on the plaintiff has not been paid on 15-2-1993". Be that as it may, the learned Judge seems to have dismissed the suit on 15-2-1993 as the appellant/ plaintiff was absent and there was no representation on her behalf and also for the reason that the costs of Rs.100/- were not paid.
12. It is the contention of the appellant that her husband was looking after her affairs and he could not attend the Court on 15-2-1993 as he was away at Hyderabad and he could not proceed further with the suit for want of a document (power of attorney executed by Ramadevi in favour of the 1st defendant (deceased)). As already noted, Counsel for respondents/defendants opposed this contention relying on the decision in Kunhibi v. LA. Officer, . In that decision, it was held that under the provisions of Civil Procedure Code, the husband of a woman cannot be deemed to be a recognised agent within the meaning of Order III, Rule 2, nor can he be regarded as an agent appointed to accept service of notice under Order III, Rule 6, sub-rule "(I), because such appointment has to be made by an instrument in writing signed by the principal as provided by sub-rule (2) of the above rule. It was ultimately held that service of notice under Section 12(2) of the Land Acquisition Act on the husband of the petitioner, when she is present, is not valid.
13. There is no quarrel with the above principle laid down by the learned single Judge of the Kerala High Court, which is based on the provisions of Order III Civil Procedure Code. There is no doubt that the husband of a woman, until and unless there is a valid power of attorney executed by his in his favour, cannot represent his wife in any legal proceedings. But, it is common knowledge that normally in rural areas in our country legal proceedings and financial matters of women are being looked after by their husbands. This is so common in rural areas. It is the case of the appellant that his husband has gone to Hyderabad on that particular date and he did not return back to Visakhapatnam to attend the Court. The husband of the appellant/plaintiff may not be able to conduct the legal proceedings on behalf of wife by entering the witness box on behalf of the appellant etc. That does not mean that he is debarred from giving instructions to the advocate as required by the appellant/plaintiff and watching the proceedings.
14. Apart from that, admittedly, the appellant/plaintiff engaged an advocate to represent her case, and it appears that the said advocate did not make any representation on behalf of the appellant/ plaintiff. In Malkiat Singh v. Joginder Singh, , the Supreme Court while dealing with the provisions of Order 9, Rule 13, CPC observed that when the Counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, no notice is issued to the appellant/plaintiff by the Court below to that effect. On this ground also, the order under appeal is liable to be set aside.
15. Coming to the contention of the respondents' Counsel that the discretion under Order 9, Rule 9 CPC should not be exercised by Courts as a matter of grace, I may state that the decision cited by him in Suryanarayanamurthy v. Ramabhadraraju, 1960 ALT 904, is distinguishable on facts. In that particular case, Their Lordships of the Division Bench were considering the power of Revisional Court. Taking into consideration the decision of the Madras High Court in Mimickam v. Mahudam Bathummal, AIR 1925 Mad. 209, it was observed:
"The restoration of suits dismissed for default under Order 9, Rule 9 is not a matter of grace as laid down in Munikam v. Mahudam Bathuminal, AIR 1925 Mad. 209. It has been observed therein that in revision the Court is not empowered under Order 9, Rule 9 to set aside the dismissal of a suit for default of appearances as a matter of grace."
16. Ultimately, on facts of that particular case Suryanarayanamurthy v. Ramabhadraraju (supra), the Division Bench held that there was clear indication of absence of anxiety and of diligence on the part of the appellants therein in the conduct of the case and dismissed the appeal. That is not so in the case on hand. Hence the decision in Suryanarayanamurty's case (supra) cited by the Counsel for respondent is not applicable to the facts of our case.
17. Dismissal of a suit for default of the plaintiff shall always be resorted to by the Courts with utmost circumspection. Before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff concerned in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. The procedural laws are intended to do substantial justice between the parties and not to penalise the parties. As long back as in 1955, a three judge Bench of the Supreme Court in Sangram Singh y. Election Tribunal, Kotah, , incidentally adverting to the trial of suits, said:
"(16) Now code of procedure-must be regarded as such. It 'procedure' something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.
(17) Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exception and where they are clearly defined they must be given effect. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."
18. In view of the above discussion and the legal position and the peculiar facts and circumstances of the case, I feel that it is just and proper to allow that appeal on some terms.
19. In the result, the appeal is allowed, the order under appeal is set aside. IA No.100 of 1993 is allowed, and the suit OS No.30 of 1987 is restored to the file of the Court below, subject to the condition of the appellant/plaintiff paying a sum of Rs.1,000/- (rupees one thousand only) to the Counsel for respondents/defendants within three weeks from today. On production of proof of such payment by the appellant/plaintiff in the lower Court, the lower Court shall restore the suit and proceed with the trial of the same expeditiously by fixing a time schedule within which the appellant/plaintiff has to be complete her evidence. If the appellant/ plaintiff seeks further adjournments and does not co-operate with the Court below or does not adhere to such time schedule, the Court below is at liberty to draw the necessary inferences and proceed further in the trial of the suit and dispose of the suit on merits in accordance with law. There shall be no order as to costs in this appeal.