Patna High Court
Smt. Gita Devi Tulsyan vs Jokhi Ram Mohan Lal on 1 September, 1983
Equivalent citations: AIR1984PAT43, AIR 1984 PATNA 43
ORDER Ashwini Kumar Sinha, J.
1. This is plaintiffs application against the order dated 13th of Aug. 1981 refusing to restore the suit dismissed for default on 20th of July, 1981.
2. The petitioner filed a Title Suit No. 248 of 1967 in the court of Munsif, East Muzaffarpur, for a decree of eviction against the defendant-opposite party from the suit premises and also for realisation of arrears of rent.
3. The suit having been filed as early as in 1967, it had a chequered history and for one reason or the other it was not disposed of in 14 years time. It seems a number of civil revisional applications were filed in this Court by the defendant-opposite party. Ultimately the records of the aforesaid Title Suit were transferred from the court of Munsif East to the court of Munsif West, Muzaffarpur and the transferee court received the records on 22-6-1981. The next date fixed for hearing of the suit was 13-7-81. On this date fixed for hearing of the suit, the plaintiff-petitioner filed the hazri along with the list of the witnesses which were to be examined on behalf of the plaintiff-petitioner. But the defendant-opposite party filed a petition for time and the case was adjourned to 20-7-81 for the hearing of the suit. It is desirable to mention here that the plaintiff, much before the records were transferred from the court of Munsif, East Muzaffarpur to the court of Munsif, West Muzaffarpur, had already examined two witnesses. One, according to the petitioner, was a formal witness and the other witness was examined on commission. Defendant-opposite party had also cross-examined the witness who was examined on commission. Thus some evidence had already come on the record on behalf of the plaintiff-petitioner before the record of the case was transferred to the court of Munsif, West Muzaffarpur.
4. On 20-7-81 the defendant-opposite party filed hazri but no pairvi was done on behalf of the plaintiff-petitioner. The case was called out. The defendant appeared with its learned counsel but on repeated, calls no body appeared on behalf of the plaintiff-petitioner. Hence the suit was dismissed for default.
5. The petitioner's case is that she filed a petition very same day i.e. 20-7-81 for restoring the suit which was dismissed for default in the early hours of the day and, according to the petitioner, due to heavy rain since early morning that day and, due to the accumulation of water on almost all the roads and also due to the heavy traffic jam, the petitioner's lawyer and the clerk could reach the court at 11.30 A.M. and, according to the petitioner, the petitioner's lawyer filed hazri of witnesses to be examined at 12 noon but, according to the petitioner, the court had already dismissed the suit for default between 11.30 and 12 noon. According to the petitioner, when the petitioner's lawyer came to know about the dismissal of the suit in the early hours of the day, an oral prayer to recall the dismissal order was made which, according to the petitioner, was not signed till then but the petitioner's case is that the court refused to recall its order and, then the petitioner filed an application under Section 151 of the Civil P. C. (hereinafter referred to as the Code) praying to re-
call the aforesaid order dismissing the suit for default.
6. The court below has rejected the application filed by the petitioner on two grounds : Firstly that in the court's opinion, an order dismissing a part heard suit by default cannot be recalled. Secondly the petitioner could not invoke the provisions of Section 151 of the Code for recalling such an order.
7. Learned counsel for the petitioner has submitted that the evidence and a substantial portion of the evidence (plaintiff herself having already been examined) having already been recorded on behalf of the petitioner, even if the petitioner failed to appear on the date fixed for hearing; the court was wrong in dismissing the suit for default as under Explanation to Rule 2, Order 17 of the Code, the court ought to have proceeded with the case and disposed of the case on merits on the evidence on the record, as if the petitioner was present in court. Secondly, learned counsel for the petitioner has also submitted that as Order 17 Rule 2 of the Code refers to Order 9 of the Code, all the provisions of Order 9 of the Code were available to the petitioner even under the circumstances in which the suit has been dismissed for default That is, in other words, even in a suit in which some evidence or substantial portion of the evidence had come in and the suit has been dismissed for default; the provisions of Order 9 of the Code were still available to the petitioner.
8. In my opinion, there is enough force in the submission advanced by the Seamed counsel for the petitioner. It is desirable to quote Order 17 Rule 2 of the Code.
"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."
Rule 2 of Order 17 itself says that on failure of the parties or any one of them to appear on the adjourned date for the hearing of the suit, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or to make such other order as it thinks fit. On perusal of Order 9 it is obvious that it deals with failure of parties to appear at the first hearing of the suit while Order 17 Rule 2 of the Code deals with the failure of the parties to appear on any adjourned date. Though it is true that the provisions of Order 9 themselves do not apply to a case in which plaintiff or the defendant, having already appeared, has failed to appear at the adjourned hearing of the case, the said provisions have been made specifically applicable by the provisions contained in Rule 2 of p. 17 of the Code and once the provisions of Order 17 Rule 2 make the provisions of Order 9 applicable for the disposal of the suit; it, in my opinion, makes it absolutely clear that the provisions of Order 9 would also be-come applicable.
9. In the instant case, as substantial portion of the evidence had already come on the record on behalf of the plaintiff-petitioner, the court below, in my opinion, ought to have proceeded with the case even though the plaintiff-petitioner failed to appear on that date i.e. on 20th of July, 1981 and, under the provisions of Explanation to Rule 2 of Order 17 of the Code, in the circumstances of the case, the court instead of dismissing the suit for default ought to have proceeded with the case and disposed it of as if the petitioner was present. I hold that in the instant case, on the facts of the case as stated above, the provisions of the Explanation to Rule 2 of Order 17 of the Code was fully applicable and the court below has taken a wrong view of law that an order dismissing for default a part heard suit cannot be recalled. As I have held above, the Explanation to Rule 2 of Order 17 of the Code was fully applicable in the instant case.
10. There is yet another aspect of the matter. Order 17, Rule 2 of the Code makes the provisions of Order 9 itself applicable for the disposal of the suit. In that view of the matter, as the provisions of Order 9 were applicable, the court was not powerless to restore the dismissal of the suit under the provisions of Rule 9, Order 9. Under the provisions of Rule 9 if the court was satisfied about the sufficiency of the cause for the non-appearance of the plaintiff-petitioner, the court could make an order setting aside the dismissal upon such terms as to costs or otherwise as it thought fit and thereafter could have appointed another date for proceeding with the suit. In the instant case the petitioner had come up before the court with some explanation for her non-appearance at the time when the suit was taken up for hearing in the early hours of the day. On perusal of the impugned order I do not find that there is any reference with regard to the explanation given by the petitioner. It seems the court having taken a wrong view of law that a part heard, suit having been dismissed for default cannot be restored just missed to deal with the explanation given by the petitioner for the non-appearance at the time when the suit was taken up or called for hearing. I have already held above that even the provisions of Order 9 were applicable on the facts of the instant case as the provisions of Rule 2 of Order 17 itself made them applicable. Thus, in my opinion, both the submissions advanced on behalf of the petitioner succeed. On the view that I have taken above, I hold that the order refusing to recall the order dated 20-7-81 was passed under a wrong notion of law. In that view of the matter, I hold that the court below has acted illegally in the exercise of its jurisdiction and with material irregularity. I further hold that, in the instant case, if the order is allowed to stand it would, occasion a failure of justice and cause irreparable injury to the plaintiff-petitioner against whom it was made.
11. Nobody appears on behalf of the opposite party in this case.
12. In the result, the application is allowed but in the circumstances of the case there will be no order as to costs.
13. As the suit is very old one filed in 1967, the court below is directed to take up the suit now from the stage at which it was on a day prior to the order dismissing the same for default and will try to dispose it of expeditiously, preferably within six months from the date of receipt of this order.