Bombay High Court
Shri Pratapchand Lakhamaji Jain vs Smt. Lilabai Krishnath Surve on 18 July, 1998
Equivalent citations: 1998(4)BOMCR193, (1998)3BOMLR137, 1998(3)MHLJ706
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. By the present civil revision application, the petitioner challenges the Order dated 26-8-96 passed by the Additional District Judge, Raigad, in Civil Misc. Appeal No. 57/90, whereby Lower Appellate Court has dismissed the appeal and thereby confirmed the Order dated 12-9-90 passed by the triaj Court in R.C.S. No. 143/88.
2. The facts relevant to the present case are as under :-
The respondent herein filed Civil Suit being R.C. Suit No. 21/82 for possession of the suit premises under the Transfer of Property Act. The trial Court framed issues therein on 6-3-84 and the case was adjourned for filing of the list of witnesses to 11-4-84. However, no list of witnesses was filed on 11-4-84, and thereafter the case was adjourned for hearing to 14-6-84. Moreover, on 14-6-84 neither the plaintiff nor his Advocate remained present though the Advocate for defendant was present and therefore, the trial Court dismissed the suit for default. Thereafter the respondent filed another suit being R.C. Suit No. 43/88. In the said suit the petitioner herein filed an application dated 8-2-90 requesting the trial Court to decide issue No. 9 as preliminary issue. Issue No. 9 read thus :-
"Whether present suit on the same cause of action is tenable without leave of the Court and if yes, whether it is in limitation."
3. The material on record further disclose that the plaintiff had filed Civil Suit bearing R.C. Suit No. 21/82 against the defendant for the recovery of rent on the basis of the notice issued by the plaintiff alleging that the tenancy in favour of the petitioner was terminated. It is also undisputed fact that the present suit being R.C. Suit No. 43/88 has been filed on the same ground and on the basis of the same notice dated 13-1-82.
4. The trial Court by its order dated 12-9-90 held that the order of dismissal for default was passed under Order IX, Rule 3 of C.P.C. and held that the present suit was maintainable in view of the provisions contained in Order IX, Rule 4 of C.P.C. Being dis-satisfied, the petitioner preferred an appeal being Civil Misc. Appeal No. 57/90 which was heard and disposed of by the Additional District Judge, Raigad, confirming the finding of the trial Court that the earlier Suit No. 21/82 was dismissed for default in terms of Order IX, Rule 3 of C.P.C. and therefore, the present suit was maintainable. It is the contention of the petitioner that the courts below have acted with material irregularity while arriving at the conclusion that the Civil Suit No. 21/82 was dismissed in terms of Order IX, Rule 3 of C.P.C. when in fact, the records disclose that the same was infact dismissed in terms of Order IX, Rule 8 of C.P.C. and therefore, the remedy available in the instant case was only under Order IX, Rule 9 of C.P.C. and not under Order IX, Rule 4 of C.P.C.
5. Before appreciating the contention sought to be raised by the petitioner, it will be worthwhile to reproduce the relevant portion of the reasoning by the courts below white arriving at the finding that the R.C. Suit No. 21/82 was dismissed for default in terms of Order IX, Rule 3 of C.RC. The trial Court in paragraph 6 of its order dated 12-9-90 has held thus :-
"It may also be observed at this juncture that neither the R. & P. in R.C.S. No. 21/82 is before this Court nor the copy of the order passed in the said suit dismissing it, is placed on record by either of the party. As such it has become somewhat difficult for me to ascertain as to whether the suit was dismissed under any of the provisions under Order 9 or under Order 17 of Civil Procedure Code."
The trial Court has further held in paragraph-9 of the order that :--
"From the pleadings of the defendant it does not reveal that he was present . when the previous suit of the plaintiff being R.C.S. No. 21/82 was called on for hearing. In such circumstances I feel Order 9, Bute 4 is applicable to the present proceeding and not Order 9, Rule 9."
6. The trial Court rather than arriving at the finding on the basis of the materials placed before ft, has proceeded to conclude on the basis of assumptions and presumptions while illegally casting the burden on the defendants to prove that the earlier suit was not dismissed in terms of Order IX, Rule 8 of C.P.C. Once it was not disputed by the plaintiff that the earlier suit was dismissed for default, it was for the plaintiff to prove that the earlier suit was dismissed in terms of Order IX, Rule 3 of C.P.C. and therefore, the plaintiff was entitled to file a fresh suit in terms of provisions contained in Order IX, Rule 4 of C.P.C. The question of requiring the defendants to plead and prove that the suit was dismissed under Order IX, Rule 8 of C.P.C. would have arisen, in case, plaintiff had prima facie established that the earlier suit was in fact dismissed for default in terms of Order IX, Rule 3 of C.P.C. Unless the plaintiff had discharged his initial burden, there was no occasion for the trial Court to expect the defendant to plead and prove the fact in negative and on such failure on the part of the defendant, to assume and presume that the earlier suit was dismissed in terms of Order IX, Rule 3 of C.P.C. What is pertinent to note is that the trial Court on one hand has observed that there was no material available before it to arrive at any finding as to whether the suit was dismissed under provisions of Order IX or Order XVII of C.P.C. and at the same time, on the other hand it has held that there has been failure on the part of the defendant to reveal that he was present when the previous suit was called for, and that therefore, the earlier suit was dismissed in default in terms of provision contained in Order IX Rule 3 of C.P.C.
7. As far as the impugned order is concerned, the lower Appellate Court in its judgment has observed thus :--
"It is evident from the order of Ld. Civil Judge in Regular Civil Suit No. 21/82 that both the parties i.e. plaintiff and defendant were absent on 14-6-1984 when the suit was kept for hearing on 14-6-1984. It also reveals that matter was fixed for hearing for the first time on 14-6-1984 when the parties were called on 14-6-1984 for hearing, both the parties were absent. Order mentions that plaintiff and her advocate were absent and defendants advocate was present. Ld. Civil Judge did not mention under which rule and order he dismissed the suit in question. But order mentions that both the parties were absent when the suit was called for hearing on 14-6-1984. Where neither party appears when the suit is called on for hearing, Court may make order under Order IX, Rule 3 though suit is dismissed. It is true that order mentions that advocate for the defendant was present. But fact remains that defendant was absent when the suit was called on for hearing. Word 'appearance' under Order IX has a technical meaning and does not mean mere physical presence, It is true that appearance contemplated by this rule need not be in person but may be in appearance by Lawyer. But where Counsel though physically present in Court, neither acts nor pleads on behalf of party in proceeding he cannot be said to have appeared at the hearing. Order simply mentions presence of defendants advocate. But order does not mention that advocate for the defendant acted or pleaded on behalf of party. It appears from the order that advocate remained silent on what is done by Court, without in any way participating in the proceeding. His presence does not amount to appearance on behalf of party."
8. In other words the lower Appellate Court has held that as per the records of the R.C. Suit No. 21/82 when the order of dismissal for default was passed, the advocate for defendants was present but the presence of advocate on behalf of the parties cannot be considered to be the presence of the party itself. The lower Appellate Court has further presumed that the advocate must have remained silent because the order does not mention that the advocate for defendant acted or pleaded on behalf of the party.
9. The findings in this regard arrived at by the lower Appellate Court is apparently erroneous and contrary to the provisions contained in Order III, Rule 1 of C.P.C. The provision contained in Order III, Rule 1 of C.RC. reads thus :-
'Appearance, etc. , may be in person by recognized agent or by pleader.
Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person."
10. The provision contained in Order IN, Rule 1 of C.RC. clearly states that appearance of the party can be either in person or through his recognized agent including lawyer. Besides Rule 4 of Order Ill of C.RC. clearly provides that a pleader can act for any person on being duly authorized by a party to the litigation. In the instant case the record shows that the Civil Suit No. 21/82 was fixed for filing of the list of witnesses on 11-4-84 and thereafter the matter was adourned for hearing on 14-6-84, on which date, the order of dismissal for default was passed by the trial Court. Once record disclose that on the date of hearing of the suit the defendant was duly represented in the Court, but neither the plaintiff nor any one on behalf of the plaintiff appeared, the Court is empowered to dismiss the suit in terms of Order IX, Rule 8 of C.RC, The question of dismissal for default in terms of Order IX, Rule 3 of C.RC. can arise only in the case where neither of the parties to the suit nor their advocates appear before the Court. Since in R.C. Civil Suit No. 21/62 the matter was fixed for "hearing" on 14-6-84, that was immediately after filing list of the witnesses, it goes without saying that the said matter have been fixed for recording of evidence on behalf of the plaintiff, since the next stage in the civil proceeding after filing list of witnesses is recording of the plaintiffs evidence. It is nobody's case that in Civil Suit No. 21/82 the evidence which was required to be led was to be led by the defendants. It is evident from the records that the matter was fixed for hearing on 14-6-84 on which date neither the plaintiff nor his Advocate was present but advocate for defendant was present. The finding of the lower Appellate Court that though the Counsel was physically present in Court, neither acted nor pleaded oh behalf of party in proceeding and therefore he could not be said to have appeared at the hearing, is not only devoid of substance but as already observed above it is contrary to the provisions contained in Order III, Rule 1 of C.P.C. read with Order III, Rule 4 of C.P.C. and therefore, cannot be sustained. That apart the finding that the advocate for the defendant did not act on behalf of the party on the day of the dismissal of the suit is itself neither borne out from the records nor find any support there from, It is manifestly dear from the materials on record. The order of dismissal itself states that the advocate for the defendant was present Considering the fact that the matter was fixed for hearing i.e. the plaintiffs evidence, the Advocate for the defendant had only to appear and was not required to plead anything in the absence of the plaintiff leading any evidence in the matter.
11. tt is thus clear that both the courts below have acted with material irregularity while arriving at the finding that the Civil Suit No. 21/82 was dismissed for default in terms of provision contained under Order IX, Rule 3 of C.P.C. and not in terms of provision contained under Order IX, Rule 6 of C.P.C. It is clear from the records that the Civil Suit No. 21/82 was dismissed for default in terms of provision contained under Order IX, Rule 8 of C.P.C. and therefore, respondent No. 1 was not entitled to file a fresh suit taking shelter of Order IX, Rule 4 of C.P.C.
12. In these circumstances, Civil Revision Application deserves to be allowed and the impugned order requires to be set aside. R.C. Suit No. 43/88 having been filed after dismissal of the Civil Suit No. 21/82 in terms of Order IX, Rule 8 of C.P.C. and being for the same relief and on the basis of same cause of action, is to be held not tenable in view of provision contained in Order IX, Rule 9 of C.P.C. and is liable to be dismissed in limine. The R.C. Suit No. 43/88 is therefore not maintainable in terms of provision under Order IX, Rule 9 of C.P.C. and is hereby dismissed.
Rule is accordingly made absolute in the above terms. Civil Revision Application is accordingly allowed with cost of Rs. 1,000/- to be paid by the respondent to the petitioner.
13. Rule made absolute accordingly.