Gauhati High Court
Central Bank Of India vs Asharan Begraj Rathi And Ors. on 11 August, 2006
Equivalent citations: (2007)2GLR531, AIR 2007 (NOC) 277 (GAU.), 2007 (2) AJHAR (NOC) 570 (GAU.)
Author: H.N. Sarma
Bench: H.N. Sarma
JUDGMENT H.N. Sarma, J.
1. Challenging the refusal to restore Money Suit No 30/85 filed by the plaintifi7appellant-Bank by the then Assistant District Judge, Nagaon, passed in Misc. (J) Case No. 12/94 which was dismissed for default, the present appeal is filed by the plaintiff-Bank.
2. I have heard Mr. A.C. Sarma, learned Counsel for the appellant, and Mr. B.K. Goswami, learned senior counsel for the defendant/ respondents.
3. The plaintiff/appellant-Bank filed the aforesaid suit for realization of a sum of Rs. 8,75,806.98 with interest thereon against the defendant/ respondents. The suit was at the hearing stage, i.e., 23.8.1998 was fixed for hearing. Having found the plaintiff/appellant-Bank absent on that date without any step, the learned trial court dismissed the suit. The plaintiff/appellant-Bank filed an application under Order 9, Rule 9, CPC, for restoration of the said suit to file along with an application under Section 5 of the Limitation Act for condonation of delay in filing the same, but the application for condonation of delay was rejected on the ground that the plaintiff/appellant-Bank has not been able to show sufficient reason for delay in filing the application for restoration of the suit to file which was admittedly filed after seven months, consequently the restoration was also dismissed.
4. Referring to the application filed for restoration of the suit under Order 9, Rule 9, CPC, Mr. Sarma submits that due to inadvertent mistake on the part of the learned Counsel engaged for conducting the suit of the plaintiff, he failed to note down the date of hearing, i.e., 23.8.1993, in his diary consequently causing dismissal of the suit for non-appearance and thereafter the plaintiff/appellant-Bank officials as usual having been enquired with the learned Counsel about the fate of the suit,, they were informed that the date of the suit, has not been noted down in his diary due to mistake. The Bank employees made search in the court on 25.4.1994 and they could know that the suit was dismissed for default on 23.8.1993 itself. Having come to know about the dismissal of the suit, they immediately on 27.4.1994 filed the application for restoration of the suit to file along with an application for condonation of delay in filing the said application. In support of the prayer for restoration, plaintiff/appellant-Hank examined the Branch Manager of the Bank as PW-1 who was duly cross-examined by the defendant/respondents.
Mr. Sarma submits that the plaintiff/appellanl-Bank has been able to substantiate the sufficient cause by adducing evidence, the cause of absence, as mentioned in the application and the same being the sufficient cause, the learned trial court was not right in rejecting the application for condonation of delay and thereby not restoring the suit to file. In support of his contention Mr. Sarma cited a decision of the Apex Court in the case of Collector, Land Acquisition, Anantanag v. Katiji AIR 1987 SC
5. Refuting the contentions raised by Mr. Sarma, Mr. Goswami submits that in fact there are major contradictions between the statements made in the application for condonation of delay as well as the application for restoration of the suit to file and the evidence so adduced in the court. Referring to the earlier orders, and that the plaintiff was negligent in pursuing the suit not only on the fateful day, but also on earlier occasions. He further submits that facts as stated by the plaintiff/ appellant-Bank in its application to the effect that they could know about the dismissal of the suit only on 25.4.1993, itself, is unbelievable and the learned trial court accordingly arrived at a right decision by passing the impugned order which does not require any interference. It is further submitted that in case of determination on an application under Section 5 of the Limitation Act, equity has no role to play on equitable ground delay is not to be condoned. In support of his contention, the learned Counsel referred to a decision of a Division Bench of this court reported in 2001 (1) GLT 34.
6. I have considered the rival contentions of the learned Counsel for the parties and also perused the relevant records. In the instant case, contention of the plaintiff/appellant-Bank is that the particular Advocate engaged by the plaintiff/appellant-Bank mentioned in the application filed under Order 9, Rule 9, CPC, has not been denied by the defendant/ respondents either in their objection or during the course of the argument, as such, it can safely be held that the concerned, counsel mentioned in the application was the conducting counsel engaged by the plaintiff to conduct the suit.
7. The plaintiff/appellant in its application at paragraph 6 has specifically stated that the Bank made vigorous search with the office assistant of the court about the latest position of the case and the said fact has been substantiated by the statements of the PW 1. The defendant/respondents have not asked any question to PW-1 on this score. Although an objection has been raised by Mr. Goswami regarding irregularity in swearing the affidavit supporting the application for restoration of the suit, I do not find that would have much assistance to the learned Counsel, inasmuch as, relevant paragraphs were sworn true to his knowledge, by the deponent, who was the Branch Manager of the plaintiff/appellant-Bank at the relevant time, such knowledge may be personal or from other sources. Affidavit sworn true to the knowledge of the deponent must be held to be personal knowledge. In support of the contentions as narrated in the said application, the deponent, was examined as PW-1, who in his deposition has proved the vital relevant facts as stated, in the application. Referring to certain statements disclosed in the cross-examination of PW-1 an attempt has been made by Mr. Goswami to show that the said evidence is contradictory to the statements made in the application for restoration of the suit but on perusal of the evidence of PW 1, I find that the said witness has been able to substantiate the statements made in the application for restoration. That apart, the evidence of witnesses in civil cases has to be appreciated taking into consideration the entire evidence deposed by such witnesses. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed not going to the root of the matter would not ordinarily permit rejection of evidence in toto Ref .
8. Order 9, Rule 9, CPC, provides, inter alia, that where a suit is dismissed for default under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the; dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. What is to be considered for passing an order while dealing with the provisions of Order 9, Rule 9, CPC, is to see whether the plaintiff has been able to show sufficient cause for his non-appearance when the suit was called for hearing or not and this is the crux of investigation in an application under Order 9, Rule 9, CPC.
9. Coming to the impugned order I find that the learned trial court, has not disbelieved the cause shown by the plaintiff. What the learned trial court found that the reason given for inordinate delay in filing the application for restoration of the suit to file is that the conducting lawyer has not informed them was held not to be sufficient reason.
Thus, the situation that emerges from the materials on record is that the learned trial court has not disbelieved or rejected the pica that the lawyer of the plaintiff has not informed in time about the dismissal of the suit, but the same was held to be not sufficient cause. Admittedly, the appellant, a financial institution, has filed the suit for recovery of its dues. It is always not necessary that the plaintiff should be personally present in the court in a civil suit but it is the responsibility of the conducting counsel to take appropriate steps in such matter. For default of the lawyer, litigant should not be allowed to suffer, if no such, default is attributed upon the litigant Ref and . In the decision cited by Mr. Sarma. the Apex Court while reiterating the principle of liberal approach in considering an application under Section 5 of the Limitation Act laid down the following principles:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause or substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay, is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
10. In view of the aforesaid discussions, I find that the learned court has passed the impugned order without considering the relevant factors that are required to be gone into in disposing an application under Order 9, Rule 4, CPC in my considered opinion, in the facts and circumstances of this case the plaintiff appellant has been able to show and establish the sufficient cause for not appearing in the court when the suit was called on for hearing and in not filing the application for restoration within time.
Accordingly, the appeal is allowed and the impugned order stands set aside, the plaintiff/appellant's suit is restored to the leaving the parties to bear their own costs.
Registry is directed to remit the records forthwith. Both the parties shall appear before the learned trial court on 11.9.2006 to receive further instruction from the learned trial court, who shall expeditiously dispose of the suit.