Madhya Pradesh High Court
Satish Saggar vs Managing Director, M.P. Industrial ... on 22 April, 1997
Equivalent citations: 1999(2)MPLJ644
ORDER D.P.S. Chauhan, J.
1. The revision is directed against the order dated 14-2-1995 passed in Misc. Appeal No. 83/94 which arose out of the order dated 8-10-1992 passed on an application under Order 9, Rule 9, Civil Procedure Code.
2. The plaintiff filed a suit for declaration and injunction wherein the trial Court fixed 29-8-1992 as the date for filing the Written Statement on which date no Written Statement was filed by the defendant but on that date, the plaintiff could not appear in Court as on account of some family property fued at his native place in Punjab, he proceeded to that place and could not contact his counsel to appear in the case. The case was dismissed for default of appearance of the plaintiff, on 29-8-1992, and the plaintiff on his coming back, came to know about the order on 17-6-1993 when he contacted his counsel and the counsel told him that he could not attend the case because of his remaining busy in some other cases which has resulted in dismissal of the suit itself. For setting aside the order of dismissal of the suit and restoration of the suit, an application was moved under Order 9, Rule 9, Civil Procedure Code, which was rejected by the trial Court, where against an appeal was preferred which also met the same fate and as such, the present revision is directed.
3. Learned counsel for the applicant submitted firstly that the suit was filed by the plaintiff which was dismissed for default. Therefore there was no question of either avoidance or negligence on the part of the plaintiff for either pursuing the suit or not remaining vigilant in the suit. Secondly, so far as his statement of going to his native place was concerned, the same was not rebutted on oath and also the statement of the counsel that at the relevant lime when the case was called, he was busy in some other Court which was not rebutted by way of an affidavit and denial and therefore no adverse inference should have been drawn by the Court below. Thirdly, the learned counsel for the applicant submitted that the dismissal of the suit itself was bad in law in view of the provisions of Order 9, Rule 8, Civil Procedure Code.
4. So far as the first two submissions are concerned, they relate to the factor pertaining to the fact and it is not necessary to dilate on them as those facts are not rebutted by the learned counsel for the other side. But so far as the question of non-applicability of the provisions of Rule 8 of Order 9 is concerned, the same requires consideration. Rule 8 of Order 9, Civil Procedure Code is as extracted below :-
"Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, 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 shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
It provides for dismissal of the suit when called on for hearing, on the ground that the defendant appears but the plaintiff does not appear.
5. The question is as to what is the procedure followed after the institution of the suit and prior to the stage when the case is called on for hearing. The first stage provided under Order 5 is issuance of summons for making appearance and to answer the allegation made in the plaint on the date specified in the summons and counter claim, if any, to be filed in the written statement or an objection can also be filed, if available to him under the provisions of Order 7, Rule 11, Civil Procedure Code.
6. Here in the present case, the service was effected and the defendant appeared but the time was allowed for filing the written statement and for that purpose, the case posted on 29-8-1992.
After the written statement is filed, then the stage of filing of the documents comes, as well as the stage for framing of the issues and after framing of the issues, the case is posted for hearing.
7. In the present case, in fact, the case was not posted for hearing and the date 29-8-1992 was not the date of hearing.
In view of the above, the order sought to be revised is illegal and without jurisdiction and deserves to be set aside.
8. In view of the above, the revision is allowed. The impugned order dated 14-2-1995 is set aside as well as the order dated 29-8-1992 dismissing the suit for default in appearance. The suit is restored to its original number. In the facts and circumstances of the case, I make no order as to costs.