Bombay High Court
Harsukh B. Gohel vs Vinod Kumar Bindlish & Ors on 27 January, 2014
Author: S.C. Gupte
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.946 OF 2011
IN
SUMMARY SUIT NO.2388 OF 1997
Harsukh B. Gohel ...Plaintiff
vs
Vinod Kumar Bindlish & Ors. ...Defendants
.....
Mr. Aditya Shiralkar a/w Mr. Sushant Chavan and Mr. Sidharth
Samantaray i/b M/s. Shiralkar & Co. for the Plaintiff.
Mr. Vijay Maganlal Vaghela for Defendant No.1.
CORAM : S.C. GUPTE, J.
DATED: JANUARY 27, 2014
P.C. :
. This Notice of Motion is taken out by the Plaintiff for setting aside
an order dated 18 February 2011 passed by a learned Single Judge of
this Court, dismissing the Summary Suit for want of prosecution.
2. The suit claims a decree for a sum of Rs. 20,00,000/- with interest
from date of filing of the suit till payment and or realisation. The suit is
filed on the basis of a Memorandum of Understanding executed between
the Plaintiff and the Defendants.
3. By an order dated 10 December 2009, unconditional leave to
defend was granted to the Defendants. The Defendants, thereafter, filed
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their Written Statement and the suit was posted for evidence. On 12
April 2010, the Plaintiff sought time to file his affidavit in lieu of
examination-in-chief along with the affidavit of documents and
therefore, the suit was adjourned for a period of one week. On 19 April
2010 when the matter was taken up for hearing once again, the Plaintiff
failed to file his affidavit in lieu of evidence as well as the affidavit of
documents. On an adjourned date, i.e. on 26 April 2010, once again,
time was sought by the Plaintiff. Thereafter the matter was called out on
11 January 2011, when the Plaintiff was still not ready with his affidavit
and original documents and the matter was adjourned to 18 February
2014. The matter was called out on 18 February 2011, when once again
time was sought on the ground that the Plaintiff was out of Mumbai.
This Court came to the conclusion that despite repeated opportunities
being given, the Plaintiff had failed and neglected to file his affidavit in
lieu of examination-in-chief and documents and that the Plaintiff was,
therefore, not interested in prosecuting the suit. This Court, accordingly,
dismissed the suit for want of prosecution on 18 February 2011.
4. The present Notice of Motion is taken out by the Plaintiff for
setting aside the order of 18 February 2011, on the ground interalia that
on account of the Plaintiff's ill-health, he could not initially attend the
hearing or instruct his Advocates to prepare the necessary affidavit of
evidence in lieu of examination-in-chief and the affidavit of documents;
that after he recovered from his ill-health, the Plaintiff prepared an
affidavit of evidence, which was affirmed on 29 April 2010; that on 18
February 2011 the Plaintiff had gone out of Mumbai for urgent personal
work and, as such, could not remain present in Mumbai on that day and
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had to instruct his Advocates to seek a short adjournment. The Plaintiff
submits that in these premises and having regard to the fact that the
Plaintiff has an excellent case on merits, the order of dismissal of the
suit passed by this Court deserves to be set aside. The Plaintiff has,
accordingly, applied for setting aside that order and restoration of the
suit under Order IX Rule 9 of the Code of Civil Procedure, 1908.
5. Learned Advocate for Defendant No.1 has raised two preliminary
objections to the maintainability of the present Notice of Motion. Firstly,
it is contended that having regard to the provisions of Sections 3 and 4A
of the Bombay City Civil Court Act, 1948 ("City Court Act"), the present
Notice of Motion, being a proceeding of a civil nature arising within the
City of Greater Mumbai and made cognizable by the Bombay City Civil
Court, ought to be transferred to that Court. Secondly, it is submitted
that the provisions of Order XVII Rule 2 read with the provisions of
Order IX, do not apply to an application for restoration of a suit
dismissed for non-prosecution, as in the instant case, and no application
for setting aside the dismissal order can filed either under Rule 4 or Rule
9 of Order IX.
6. Let me take up first the issue of jurisdiction of the Court to
entertain this Notice of Motion having regard to Sections 3 and 4A of the
City Court Act. It is submitted by the learned Advocate for Defendant
No.1 that by reason of the amendment of the City Court Act by Bombay
City Civil Court (Amendment) Act, 2012("Act of 2012"), the present
Notice of Motion ought to be transferred to the City Civil Court. The
Learned Advocate submits that all suits and/or proceedings of a civil
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nature not exceeding rupees one crore in value come within the purview
of Section 3 of the City Court Act and are required to be transferred to
the City Civil Court by virtue of amended Sub-section (1) of Section 4A
if pending in this Court on the date of commencement of the Act of
2012. The learned Advocate submits that the present Notice of Motion is
a proceeding of a civil nature not exceeding rupees one crore in value
and pending in this Court on the date of coming into force of the Act of
2012 and therefore ought to be transferred to the Bombay City Civil
Court.
7.
Section 3 of the City Court Act, after its amendment by the Act of
2012, reads as follows :-
"3. The [State] Government may, by notification
in the Official Gazette, establish for the Greater
Bombay a court, to be called the Bombay City
Civil Court. Notwithstanding anything contained
in any law, such court shall have jurisdiction to
receive, try and dispose of all suits and other
proceedings of a civil nature not exceeding rupees
one crore in value arising within the Greater
Bombay, except suits or proceedings which are
cognizable -"
(a) by the High Court as a Court of Admiralty or
Vice-Admiralty as a Colonial Court of Admiralty,
or as a Court having testamentary, intestate or
matrimonial Jurisdiction, or
(b) by the High Court for the relief of insolvent
debtors, or
(c) by the High Court under any special law
other than the Letters Patent, or
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(c-1) by the High Court under the Parsi Marriage
and Divorce Act, 1936; or
(c-2) by the High Court in respect of intellectual
property matters; or
(d) by the Small Cause Court :
Provided that, the State Government may,
from time to time, after consultation with the
High Court, by notification in the Official Gazette,
enhance the pecuniary jurisdiction of the City
Court and correspondingly alter the pecuniary
jurisdiction of the High Court.
8. Sub-section (1) of Section 4A of the City Civil Court Act, after its
amendment by the Act of 2012, provides as follows :-
"4 A. (1) Notwithstanding anything contained in
Section 9 of the Bombay City Civil Court and the
Bombay Court of Small Causes (Enhancement of
Pecuniary Jurisdiction and Amendment) Act,
1986, all suits and proceedings cognizable by the
City Court under section 3, and pending in the
High Court on the date of coming into force of
section 4 of the Bombay City Civil Court
(Amendment) Act, 2012 not being suits or
proceeding falling under clauses (a) to (d) of
section 3, shall stand transferred to the City
Court."
9. The question essentially is, what is meant by the word 'proceeding'
in the sections quoted above. The word 'proceeding' is not defined in the
Act nor is it defined under the Code of Civil Procedure, 1908. The word
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'proceeding' ordinarily relates to a form of law, the mode in which a
judicial transaction is conducted. In Black's Law Dictionary the word
'proceeding' is explained as follows "In a general sense, the form and
manner of effecting judicial business before a court or judicial officer".
10. Though this may be its meaning in general acceptation, what we
are really concerned with here is the meaning of the word 'proceeding'
used in the statute quoted above. This meaning will have to be gathered
by looking at the statute itself and considering the context in which the
word is used in the statute. While construing the expression "proceeding"
appearing in Section 24 1(b) of the Code of Civil Procedure, the
Supreme Court stated in Ramchandra vs. State of UP1 :
"The expression "proceeding" used in this
section is not a term of art which has acquired a
definite meaning. What its meaning is when it
occurs in a particular statute or a provision of a
statute will have to be ascertained by looking at
the relevant statute. Looking to the context in
which the word has been used in S.24(1)(b) of
the Code of Civil Procedure it would appear to us
to be something going on in a Court in relation to
the adjudication of a dispute other than a suit or
an appeal. Bearing in mind that the term
"proceeding" indicates something in which
business is conducted according to a prescribed
mode it would be only right to give it, as used in
the aforesaid provision, a comprehensive
meaning so as to include within it all matters
coming up for judicial adjudication and not to
confine it to a civil proceeding alone."
1 AIR 1966 SC 1888
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11. In the Code of Civil Procedure itself the word 'proceeding' appears
in different contexts and conveys different meanings according to these
contexts. For example, as explained by the Supreme Court in
Ramchandra's case (supra), in Section 24 of the Code of Civil
Procedure, the expression 'proceeding' means something going on in a
Court in relation to the adjudication of a dispute other than a suit or an
appeal. 'Proceeding' under Section 24 would include an execution
proceeding. On the other hand, in Section 141 of the Code of Civil
Procedure all proceedings of a civil nature would include proceedings
under Order IX but would not include execution proceedings. So also,
the term appears in different statutes and takes its colour from the
context in which it is used. The Supreme Court in the case of Babu
Lal vs. Hazari Lal Kishori Lal2 construed the word 'proceeding' used in
the Specific Relief Act thus :
"17. The word 'proceeding' is not defined in the
Act. Shorter Oxford Dictionary defines it as
"carrying on of an action at law, a legal action or
process, any act done by authority of a court of
law ; any step taken in a cause by either party".
The term 'proceeding' is a very comprehensive
term and generally speaking means a prescribed
course of action for enforcing a legal right. It is
not a technical expression with a definite
meaning attached to it, but one the ambit of
whose meaning will be governed by the statute.
It indicates a prescribed mode in which judicial
business is conducted. The word 'proceeding' in
S. 22 includes execution proceedings also. ........
Execution is a stage in the legal proceedings. It
2 (1982) 1 SCC 525 : AIR 1982 SC 818
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is a step in the judicial process. It marks a stage
in litigation. It is a step in the ladder. In the
journey of litigation there are various stages. One
of them is execution."
12. It is, therefore, necessary to look at the provisions of the statute
with which we are concerned here for ascertaining the meaning of the
word 'proceeding'. Section 3 of the City Civil Court Act, 1948 is a
jurisdictional provision which provides for the jurisdiction of the Court to
receive, try and dispose of all suits and other proceedings of a civil
nature. It is to be noted that proceedings of civil nature are prefaced by
the word "other" and these proceedings are contradistinguished from
suits. They are, obviously, other than suits but at the same time in the
nature of suits. The expression 'proceedings' here obviously means
proceedings covering original matters like probates, guardianships,
divorce, insolvency etc. This is further clear from the explanation which
follows in Section 3 itself. The proceedings such as testamentary or
admiralty proceedings (which are not suits) are excluded from the ambit
of proceedings which can be received, tried or disposed of by the City
Civil Court.
13. The question as to what is meant by 'proceedings' other than suits
and appeals in a Court of civil jurisdiction was considered by the Privy
Council in the case of Thakur Pershad vs. Sheikh Fakir-Ullah and Anr.3
in the context of Section 647 of the Code of Civil Procedure 1882, as it
stood when that Code was first enacted. The Section, namely, Section
647 of the Code of Civil Procedure, as it then stood, ran as follows:-
3 (1894) L.R. 22 I.A. 44
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"647. The procedure herein prescribed shall be
followed, as far as it can be made applicable, in
all proceedings in any Court of civil jurisdiction
other than suits and appeals.
The High Court may, from time to time, make
rules to provide for the admission, in such
proceedings, of affidavits as evidence of the
matters to which such affidavits respectively
relate; and such rules, on being published in the
local official Gazette, shall have the force of law."
Construing the expression 'proceedings' used in Section 647 the
Privy Council in the case of Thakur Pershad, held that the 'proceedings'
referred to in Section 647 cover only original matters in the nature of
suits such as proceedings in probates, guardianships, and so forth.
14. Having regard therefore to the context in which the word
'proceedings' is used in Section 3 and 4A of the City Court Act, I am of
the view that the expression includes only original matters which are in
the nature of suits and not proceedings adopted by a party in a suit. A
Notice of Motion under Order IX Rule 4 or Order IX Rule 9 is a
proceeding adopted in a suit and not covered in the expression
proceeding as used in Section 3 or 4A of the City Court Act. Such Notice
of Motion is not cognizable by the City Civil Court independently of the
suit in which it is taken out and therefore, not liable to be transferred to
that Court.
15. Now, as regards the maintainability of the present Notice of
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Motion under Order IX Rule 9 of the Code of Civil Procedure, it is
submitted by the learned Counsel for the Plaintiff that in the present case
when the Court passed its order on 18 February 2011, the Court was
actually proceeding under clause (b) of Rule 3 of Order XVII and
therefore necessarily under Rule 2 of that Order. The learned Counsel
further submitted that the expression 'presence of the parties' used both
in Order XVII and Order IX implies effective presence and in the absence
of such effective presence if the Court proceeds to dismiss the suit for
non-prosecution, it is akin to dismissal of the suit for default under Rule
3 or Rule 8 of Order IX and in such a case an application for restoration
of the suit by setting aside the dismissal order lies under Rule 4 or Rule 9
of Order IX depending on whether the suit is dismissed under Rule 3 or
Rule 8 of Order IX.
16. On the other hand, it is submitted by learned Counsel for
Defendant No.1 that the Court has already exercised its discretion under
Section 148 of the Code of Civil Procedure when it declined to enlarge
the time as sought by the Plaintiff and has proceeded to decide the suit
under clause (a) of Rule 3 of Order XVII. It is submitted by the learned
Counsel that under these circumstances an application for setting aside
the order does not lie either under Rule 4 or under Rule 9 of Order IX.
17. Here is a suit where the Plaintiff has appeared through an
Advocate but has been unable to proceed with the hearing of the suit
due to inability to lead evidence on the date of hearing and as a result,
the suit is dismissed for non-prosecution. The question is: Does an
application under Order IX Rule 4 or Rule 9, as the case may be, lies for
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restoration of such a suit. The answer depends on whether the Court
acted under Rule 3 or Rule 8 of Order IX whilst passing the order of
dismissal. This in turn brings us to the question whether the Court has
acted under Rule 2 read with Rule 3 of Order XVII, as explained below.
18. Rules 1(1), 2 and 3 of Order 17 which deals with adjournments,
read as follows :-
ORDER XVII-ADJOURNMENTS
1. Court may grant time and adjourn hearing
--(1) The Court may, if sufficient cause is shown,
at any stage of the suit grant time to the parties
or to any of them, and may from time to time
adjourn the hearing of the suit.
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 a 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
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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."
19. As may be seen, Rule 3 operates in a situation where a party to a
suit, to whom time has been granted, fails to produce evidence or to
cause attendance of his witness or to perform other necessary act. The
Court has two options in such a situation. The first option is exercised in
a case where the parties are present. In that case, the Court may
proceed to decide the suit forthwith. A decision of the Court in the suit
implies a decision on merits as discussed by me later in this judgment.
The other option is available when the parties are, or any one of them is,
absent. In such a case, the Court has a discretion to proceed under Rule
2. Rule 2, on its part, gives a discretion to the Court to proceed to
dispose of the suit in any of the modes prescribed in that behalf by Order
IX or make such other order as it thinks fit.
20. Thus, the first question to be considered is whether the Court has
proceeded on the basis of presence or absence of parties, or any of them.
This necessarily takes us to the question as to what is meant by
'appearance' or 'absence' of parties. The provisions of Order IX deal with
the subject of 'appearance of parties' and the consequence of their non-
appearance. Order IX provides different modes in which the Court may
deal with the situation of absence of either parties. Rule 2 provides for a
case where the defendant's absence is caused by non-service of summons
in consequence of the plaintiff's failure to pay costs. The Court has an
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option to dismiss the suit in such a case. Rule 3 is another mode where
neither of the parties appears before the Court. In such a case the Court
has an option again to dismiss the suit. The consequence of dismissal of
the suit either under Rule 2 or Rule 3 is provided for by Rule 4 of Order
IX. Where a suit is dismissed under Rule 2 or Rule 3, as the case may be,
the plaintiff has an option to bring a fresh suit or apply for an order to
set aside the dismissal, in which case he must satisfy the Court that there
was sufficient cause for his failure to serve writ of summons or for his
non-appearance, as the case may be. Rule 5 provides for another
situation where the Court has an option to dismiss a suit, where after
the writ of summons sought to be served on the defendant is returned
unserved and the plaintiff fails to apply for fresh summons. The
consequence of such dismissal is provided under sub-rule 2 of Rule 5,
namely, that the plaintiff may (subject to the law of limitation) bring a
fresh suit. The procedure where only the plaintiff appears in the
different contingencies, namely, (i) where the summons is duly served,
(ii) when the summons is not duly served, and (iii) when the summons is
served but not in due time, is provided for in Rule 6. The procedure
where only the defendant appears and the plaintiff does not appear
when the suit is called on for hearing is provided for in Rule 8. Rule 8
provides that in such a case the Court shall make an order that the suit
be dismissed unless the defendant admits the claim, or part thereof, in
which case the Court is empowered to pass a decree upon such
admission and where only a part of the claim is admitted, to dismiss the
suit so far as it relates to the remainder. Where the suit is wholly or
partly dismissed under Rule 8, the plaintiff is precluded from bringing a
fresh suit in respect of the same cause of action but he may apply to the
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Court for setting aside the order of dismissal, in which case he must
satisfy the Court that his non-appearance, when suit was called on for
hearing, was due to a sufficient cause. In such a case, the Court shall
make an order setting aside the dismissal upon such terms as it may
deem fit and appoint a day for proceeding with the suit.
21. A learned Single Judge of this Court in the case of Prashant
Vagaskar v/s Municipal Corporation of Greater Bombay4 was faced
with a situation where in a suit, which was adjourned from time to time,
the Court declined to accept a request for adjournment sought on behalf
of the Plaintiffs on the ground that none of the Plaintiffs, except Plaintiff
No.2, was present before the Court on that day and that Plaintiff No.2
was not ready with the evidence. All the Plaintiffs were, however,
represented by Counsel on that day when this request was made. The
learned Counsel for the Plaintiffs, though present, in the above situation,
did not take any steps to proceed with the suit. The Court treated this
attitude on the part of the Plaintiffs as an attempt to protract the trial of
the suit. The Court, in the premises, proceeded to dismiss the suit. The
dismissal order was challenged in the appeal before the learned Single
Judge. The substantive question which needed consideration in Prashant
Vagaskar's case (supra) by the learned Single Judge was :
Whether mere physical presence of a litigant
is sufficient for the purposes of prosecuting a
suit?
4 2002(4) Bom. C.R. 363
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The Court in Prashant Vagaskar's case analyzed the provisions of
Order XVII Rules 1, 2 and 3 as well as Order IX Rules 8 and 9. The Court
held that Rule 2 of Order XVII only applied when one or both of the
parties did not appear on the day fixed for the adjourned hearing. The
Court noted that in that event, the Court is thrown back to Order IX with
the additional power to make "such order as it thinks fit". The Court
noted that it was clear that the last words of the Rule confer a discretion
on it, but such discretion must be exercised judiciously. A Judge
exercising such discretion, noted the Court, may grant further
adjournment if the circumstances justified on merits, but he should have
material before him to justify that course. In this backdrop of the facts of
that case and the analysis of the provisions, this Court held in Prashant
Vagaskar's case (supra) as under :
"When the plaintiffs were found to be not
ready with their evidence, can it be said that the
trial Court was justified in treating the mere
physical presence of the litigant as appearance
for the purposes of prosecuting the suit. This
point has been elaborately dealt with by some of
the High Courts in India like those in Manannisa
vs. Ramkalpa Gorain (1907) ILR 34 Cal. 235,
Satishchandra vs. Ahana Prasad, (1907) ILR 34
Cal 403 (F.B.), Lalji Sahu vs. Lachmi Narain, AIR
1918 Patna 351. In all these cases, it has been
uniformly held that appearance (mere presence)
does not mean physical presence of the party
concerned, but appearance must be purposeful
for the purpose of prosecuting the case or suit
pending in the Court. In other words,
appearance/presence should be for the purposes
of taking part in the proceeding and that it
includes preparedness to cite evidence and/or to
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produce documents or to take any 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 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 circumstance will not
amount to an appearance as contemplated under
Order 17, 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."
22.
This Court in Prashant Vagaskar's case (supra) referred to the
view of the Full bench of Calcutta High Court in Satish Chandra
Mukerjee Vs. Ahara Prasad Mukerejee5. In that case, referring to the
term 'appearance', the Full Bench of Calcutta High Court had noted as
follows :-
"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
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 appellant on the day fixed for
the hearing of the appeal the mere appearance of
the counsel to make an application for
adjournment ought not to be treated as
appearance so as to oust the application for
5 (1907) ILR 34 Cal. 403
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adjournment ought not to be treated as
appearance so as to oust the jurisdiction under
section 558 of 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."
23. After considering various authorities on the point, Court in
Prashant Vagaskar's case came to the following conclusion :-
"22. In this view of law, therefore, mere fact
that the plaintiff No.2 was present in the Court at
the time when the suit was called for dismissal on
30-8-2001, cannot on the facts of this case,
provide for any valid ground for holding that the
plaintiffs were present in the Court and in spite of
that, they defaulted in taking part in proceedings
or were guilty of by-passing the Court. In the
facts and circumstances, the plaintiffs were
justified in praying for adjournment and,
therefore, in my opinion, the Court below was
wrong in refusing to grant adjournment, merely
on the technical ground that one the plaintiffs
was physically present in the Court and was not
ready to proceed with the suit.
23. The Code of Civil Procedure has been
designed to facilitate fair trial of the suits. It is
not a penal enactment for punishment and
penalties; not a thing designed to trip people up.
Too technical a construction of provisions that
leaves no room for reasonable elasticity of
interpretation should therefore be guarded
against: (provided always that justice is done to
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'both' sides) least the very means designed for the
furtherance of justice be used to frustrate it."
24. The view expressed by this Court in Prashant Vagaskar's case
was later followed by atleast three learned Single Judges of this Court in
the cases of Shri Subhash Mataji Pulate vs. Smt. Laxmibai Somaji
Khillare6 (Per B.P. Dharmadhikari, J.), M/s. Devidayal Sales Pvt. Ltd.
vs. The State Trading Corporation of India & Anr.7 (Per A.A. Sayed,
J.) and Bhalchandra Ganesh Naik & Anr. vs. Sona Hotel8 (Per
Pangarkar C.L.,J.).
25.
In the case of Subhash Mataji Pulate, this Court was concerned
with a case where the Plaintiff failed to adduce evidence and prove her
contention. The facts were similar to the facts of the present case. The
suit was dismissed for want of prosecution. An application for setting
aside the dismissal order was filed by the plaintiff. The ground urged
was that when the suit was fixed for evidence, talks regarding
compromise had taken place between the parties and as such the
plaintiff could not lead evidence in the suit. This Court in Subhash
Mataji Pulate's case noted that when the order of dismissal was passed,
though the plaintiff as also defendants were present, their purpose was
only to obtain adjournment in view of the talks of compromise going on
between the parties. They were not appearing before the Court for the
purposes of prosecuting further their suit. The Court in this context
6 2005(3) ALL MR 828
7 Notice of Motion No.4424/07 in Suit No.725/79 decided on 25 February 2009.
8 2009(3)Bom.C.R.780
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considered the judgment of this Court in Prashant Vagaskar's case
(supra) and treated the case as one in which the parties were absent.
26. The next judgment is that of a learned Single Judge in the case of
M/s. Devidayal Sales Pvt. Ltd. (supra). That case also was an
application on behalf of the plaintiff for restoration of the suit which was
dismissed for non-prosecution. On the day when the matter was called
out in that case the deponent, who had affirmed the affidavit in support
of the Motion and who was a Junior Advocate, had appeared for the
plaintiff and sought adjournment on the ground that the plaintiff's
Counsel was hospitalised earlier and was advised bed rest. The Court
was not inclined to adjourn the matter. The matter was finally kept back
but ultimately dismissed for want of prosecution in the afternoon
session. On the application for setting aside the order of dismissal, the
learned Single Judge after considering the provisions of Order XVII Rule
2, of the Code of Civil Procedure 1908 and relying upon the decision of
this Court in Prashant Vagaskar's case (supra), allowed the application
for restoration. In the course of his judgment, the learned Single Judge
of this Court also noted the High Court amendment of Andhra Pradesh
adding an explanation to Order XVII Rule 2 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. Having regard to the
material adverted to above, the learned Single Judge in Devidayal Sales
Pvt. Ltd. (supra) came to the conclusion as follows :-
"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
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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
"act appear and plead" for and on behalf of the
party. The appearance of a Counsel who is not
able 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."
27. Another learned Single Judge of this Court in the case of
Bhalchandra G. Naik (supra) on a consideration of the relevant
applicable rules under Order XVII and Order IX held as follows :-
"Be that as it may, the effect of the order as
earlier said is one of the dismissal of the suit. The
application under Order IX, Rule 9 can be said to
be maintainable because of the fact that the order
could be said to be the one falling under Rule 3(b)
of Order 17 as a very insignificant part of the
evidence of the plaintiffs was recorded and the
plaintiff was absent. When the case falls under
Rule 3(b) one has to necessarily revert back to
Order 17, Rule 2. If one has to revert back under
Order 17, Rule 2 necessarily one has to make an
application under Order IX, Rule 9 for restoration
of the suit. Therefore, an application as filed by
the plaintiffs/appellants was quite tenable. The
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following decisions lay down the same
proposition. A.I.R. 1943 Bom. 321, (Basalingappa
Vs. Shidramappa) and 2004(1) Bom.C.R. 242
(S.C.) : 2003(5) S.C.C. 641, (B. Janakiramaigh
Chetty Vs. A.K. Parthasarthi & others)."
28. The authorities discussed above make it clear that in the event a
party, though appearing through an Advocate, is unable to proceed with
the hearing of the suit due to inability to lead evidence on the date of
adjourned hearing (after time was granted by a Court to produce
evidence) and the Court dismisses such a suit for non-prosecution, the
Court effectively proceeds as though the party was absent and therefore
invokes the provisions of Rule 3(b) of Order XVII of the Code of Civil
Procedure. The Court in such a case exercises its option to proceed under
Rule 2 of Order XVII and passes an order in one of the modes provided
in that behalf by Order IX. The relevant modes in this behalf are the
modes of dismissal of a suit either under Rule 3 of Order IX where
neither party appears or under Rule 8 where only defendant appears. In
either of the two cases, the plaintiff, who suffers dismissal of a suit as a
result, has an option to apply for restoration of the suit under Rule 4 of
Order IX or Rule 9 of Order IX, as the case may be.
29. There is one more reason why such dismissal cannot be considered
to be an order under Rule 3(a) of Order XVII. Clause (a) of Rule 3
contemplates a decision of the suit on merits. For such a decision to be
rendered there must be some evidence on record which enables the
court to decide the suit. If there is no evidence on record, the court
cannot proceed to decide the suit. The only other option, under Rule 3,
is recourse to clause (b) of that Rule, namely, to proceed under Rule 2
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of Order XVII. Under Rule 2, the court may pass any of the orders
which can be passed in the absence of a party or parties (the modes
provided by Order IX) or grant time to the plaintiff (such other order as
it may think fit). In Prakash Manchanda's case the Supreme Court
considered the case of closure of the defendant's evidence due to
absence of his witnesses. After such closure, arguments of the plaintiff
were heard and a decree was passed. The defendant applied for setting
aside the ex-parte decree. The application was disposed of by the trial
court holding that the case was disposed of not in accordance with Order
XVII Rule 2 but in accordance with Order XVII Rule 3 and therefore the
application under Order IX Rule 13 was not maintainable. The Supreme
Court allowed the appeal holding that the trial court could not have
proceeded to dispose of the suit on merits and the application under
Order IX Rule 13 was maintainable. This is what the Supreme Court had
to say:
" It is clear that in cases where a party is absent the
only course as mentioned in Order 17 Rule 3(b) is to
proceed under Rule 2. It is therefore clear that in absence
of the defendant, the court had no option but to proceed
under Rule 2. Similarly the language of Rule 2 as it now
stands also clearly lays down that if any one of the parties
fails to appear, the court has to proceed to dispose of the
suit in one of the modes directed under Order 9. 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 remain absent and for that party
no evidence has been examined up to 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.
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It is therefore clear that after this amendment in Order 17
Rules 2 and 3 of the Code of Civil Procedure there remains
no doubt and therefore there is no possibility of any
controversy."
30. The decision of the Supreme in Prakash Manchanda's case is a
clear authority for the proposition 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 in
accordance with Order XVII Rule 2 in any one of the modes prescribed
under Rule 9 of the Code of Civil Procedure. Having regard to the
judgment of our Court in Prashant Vagaskar's case (supra) and the
dicta of the Supreme Court in Prakash Manchanda's case (supra) the
Court in Subhash Mataji Pulate allowed the application under Order IX
Rule 9 with the following observations :
"11. In present revision though both the parties
were present, it is apparent that they were not
ready and willing to go on with the trial of the
Suit because of talks of compromise going on
between them and also there was no material
before the trial Court to enable it to decide the
suit on merits as required by Order 17, Rule 3(a)
of Civil Procedure Code. Hence, under the
circumstances, the impugned order cannot be
read as an order under Order 17, Rule 3(a) of
Civil Procedure Code. The trial Court has
dismissed the suit in default on 21-12-1993 and
has correctly entertained the application under
Order 9 of Civil Procedure Code and has correctly
restored the suit back to file by its judgment dated
22-1-1998."
31. I must at this stage deal with a few other authorities of our Court
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cited at the bar. One is a decision of a learned Single Judge of our Court
in the case of State Bank of India Vs. M/s. Kumar Apparel Industries9
and the others are decisions of another learned Single Judge in the cases
of ICICI Bank Ltd. Vs. Vikram Seth10 and Cotton Corporation of India
Ltd. Vs Sree Shanmugar Mills & Anr.11
32. In the case of State Bank of India (supra) the Court was
concerned with the provisions of Order XIV Rule 1(5) of the Code of
Civil Procedure when the matter was posted for framing of issues. The
Court noted that it was clear from this rule that though it is for the Court
to frame issues, the Court is required to do so after examination under
Rule 2 of Order X and after hearing the parties or their pleaders. The
Court noted that there could be, and indeed there are suits where the
pleadings and documents are voluminous enough for the Court to
require Counsel to assist it in framing of issues. In these circumstances,
in a given case if the party is unable to assist the Court through its
Counsel to frame issues the Court is well within its rights to dismiss the
suit. In that context, the Court observed as follows :-
"9. Even otherwise on a plain construction of
scheme of Order IX rules 8 and 9 of the Code of
Civil Procedure, it is clear that those provisions
apply only where the Defendant appears and the
Plaintiff does not appear. The phrase 'does not
appear' must be given its plain and natural
meaning and cannot include a case where
advocate appeared as is in this case but cannot or
refuses to go on with the matter. It makes no
9 ALL MR 683
10 2012 (3) LJSOFT 22
11 2012 (2) ALL MR 554
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difference if the matter is considered under Order
IX rule 3 of the Code of Civil Procedure, which
reads as follows :-
3. Where neither party appears, suit to be
dismissed:- Where neither party appears when
the suit is called on for hearing, the Court may
take an order that the suit be dismissed.
10. This suit (sic provision?) is also not attracted
in the present case since this is not a case where
neither party appeared when the suit was called
out for hearing. The dismissal of the suit cannot
be taken to be one under this rule."
It must be noted that in the case of State Bank of India (supra),
none of the earlier authorities including the judgment of our Court in the
case of Prashant Vagaskar (supra) was cited before the Learned single
Judge. So also the decision of the Supreme Court in the case of Prakash
Manchanda (supra) was not cited before the learned Single Judge. The
learned Single Judge came to the conclusions set out above in paras 9
and 10 of his judgment on construction of the scheme of Order IX Rules
8 and 9 without reference to the law laid down by our Court in the cases
cited above.
33. In the case of ICICI Bank Ltd. (supra) and Cotton Corporation of
India Ltd. (supra), a learned Single Judge of this Court (Roshan Dalvi J.,
in both the cases) came to a conclusion that to a dismissal of a suit for
non-filing of affidavit of evidence the provisions of Order IX do not apply
and an application for setting aside the dismissal does not lie under
Order IX in such a case. None of the earlier judgments, including the
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judgments of four Single Judges of our Court, which have extensively
discussed the law on the point, starting from the case of Prashant
Vagaskar (supra) to the case of Bhalchandra G. Naik (supra) was either
cited or considered by the learned Single Judge in the case of ICICI Ltd.
and Cotton Corporation of India Ltd. (supra).
34. The decisions of the two learned Single Judges of our Court in
State Bank of India, ICICI Bank and Cotton Corporation of India
were rendered per incuriam since they did not consider the decisions of
coordinate jurisdiction of our Court as noted above.
35. Having regard to the case law discussed above, including the four
judgments of learned Single Judges of this Court, which have held that
appearance of advocate without readiness to proceed with the matter is
no presence of the party and the judgment of the Supreme Court in
Prakash Manchanda's case (supra), which clearly goes on to hold that
if on a given date one of the parties remains absent and there is no
evidence on record, the Court has no option but to proceed under Order
XVII Rule 2 in any one of the modes prescribed under Rule 9 of the Code
of Civil Procedure, I hold that an application for restoration of the suit
dismissed for non-prosecution due to the plaintiff's inability to lead
evidence on the particular day is maintainable under Order IX Rule 4 or
Rule 9, as the case may be.
36. The application for restoration in the present case may actually be
treated as an application under Order IX Rule 4, as both the parties can
be said to be absent. The Plaintiff was not present for the reasons noted
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above and the Defendant was admittedly absent. The application is
clearly maintainable.
37. On the question of merits of the present application, it is alleged
by the Plaintiff that on the date of dismissal of the suit on 18 February
2011 the Plaintiff was away from the City and could not remain present
for leading of evidence though his affidavit of evidence was ready,
having been affirmed on 29 April 2010. I have perused the affidavit of
evidence in lieu of examination-in-chief of the Plaintiff tendered by
learned Counsel for the Plaintiff. The affidavit was indeed affirmed on 29
April 2010. Having regard to the averments in the affidavit in support of
the Notice of Motion and after perusal of the affidavit of evidence, I am
of the view that this is a fit case where the Notice of Motion should be
allowed and the order of dismissal of the suit dated 18 February 2011
should be set aside.
38. Having regard to the discussion, I pass the following order :-
ORDER
(i) Notice of Motion is made absolute in terms of prayer clause (a).
(ii) The delay, if any, is condoned.
(iii) The affidavit of evidence in lieu of examination-in-chief of the
Plaintiff dated 29 April 2010 tendered by the learned Counsel for the Plaintiff is taken on record.
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(iv) The compilation of documents together with the affidavit of
documents tendered by Counsel for the Plaintiff is taken on record.
(v) The suit is transferred to the Bombay City Civil Court for trial.
(vi) The Plaintiff shall pay the cost of this application quantified at Rs. 50,000/- to Defendant No.1.
(vii) On the application of the learned Counsel for Defendant No.1 the order is stayed for a period of six weeks from today.
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