Andhra HC (Pre-Telangana)
Vivekananda Public School, Medak vs P. Hymavathi on 8 March, 2002
ORDER C.Y. Somayajulu, J.
1. This revision is filed against the order dated 8-10-2001 in I.A.No.378 of 2001 in O.S.No.89 of 1997 on the file of the Senior Civil Judge, Medak, allowing a petition filed under Order IX Rule 9 read with Section 151 C.P.C. restoring the suit O.S.No.89 of 1997, which was dismissed for default on 24-9-2001, to file.
2. The respondent filed the suit for recovery of Rs.81,524/-, said to be the arrears of rent due for the premises taken on lease by the revision petitioner. On 24-9-2001 when the suit was posted for trial, a petition under Order XVII Rule 1 C.P.C. was filed on behalf of the respondent to adjourn the case to some other date, accompanied by the affidavit of the counsel for the respondent stating that he received a telegram from the respondent informing him that as she is suffering from high fever she cannot attend Court on that day and so an adjournment may be taken. That petition for adjournment was dismissed on being opposed by the petitioner. Consequently the suit also was dismissed for default for the absence of the respondent. Subsequently the respondent filed a petition I.A.No.378 of 2001 under Order IX Rule 9 C.P.C. contending that she could not attend the Court on 24-9-2001 as she was suffering from high fever and that she had in fact informed her Advocate about her ill-health through a telegram, and since her non-appearance on 24-9-2001 was neither intentional nor willful, but was due to her being unwell, the order of dismissal of the suit for default, passed on 24-9-2001 maybe set aside and the suit may be restored to file. The petitioner opposed that petition on the ground that since the petition for adjournment filed on 24-9-2001 on the very same ground was dismissed, this petition on the same grounds is not maintainable. No evidence either oral or documentary was adduced by the parties. The learned Senior Civil Judge by the order under revision, allowed the petition, inter alia, on the ground that the respondent who was present along with her Doctor at the time of presentation of the petition assured that she would cooperate with the Court for early disposal of the case.
3. The main contention of the learned counsel for the revision petitioner is that since the averments in the affidavit filed in support of the petition filed under Order XVII Rule 1 C.P.C. on 24-9-2001, and the averments in the affidavit filed in support of the petition filed under Order IX Rule 9 C.P.C. are one and the same, and since the petition filed under Order XVII Rule 1 C.P.C. was dismissed on 24-9-2001, the learned Judge committed an error in allowing the petition filed under Order IX Rule 9 C.P.C. It is also his contention that the Court below committed a grave error in taking into consideration the oral representations allegedly made by the petitioner behind back of the petitioner, that she would cooperate with the Court in early disposal of the case, and making that representation a ground for allowing the petition, without giving an opportunity to the petitioner to say what he has to on the said representation, more so when there is nothing on record to show that the petitioner along with her Doctor was present in Court and had presented petition in person at the Bench. Placing strong reliance on BHUPATHI RAJU SURYANARAYANA RAJU vs. BANTUPALLI APPANNA AND ANOTHER1 and ARJUN SINGH vs. MOHINDRA KUMAR AND OTHERS2, he contended that since the petition seeking an adjournment from 24-9-2001 was dismissed on the ground that respondent failed to establish that she was unwell on that date, in a petition filed under Rule 9 of Order IXCPC, it cannot be said that the respondent could establish that she was unwell on 24-.9-2001.
4. There cannot be any record except the observation of the Court to show that the petitioner was present in person along with her Doctor on 3-10-2001 when she filed the petition under Order IX Rule 9 C.P.C. into Court. That fact of absence of record by itself is not and cannot be a ground for rejecting the petition under Rule 9 of Order IX CPC., if the plaintiff is able to establish sufficient cause for his or her absence on the day when the suit was dismissed for default. It is well known that the rule of Res judicata does not apply to interlocutory orders. Therefore, order-refusing adjournment on 24-9-2001 does not operate res judicata in this petition. The petition for adjournment filed on 24-9-2001 was accompanied by the affidavit of the counsel for the respondent.
5. In his affidavit the counsel stated that he had received a telegram from the respondent that she was suffering from high fever and hence cannot attend Court, and so an adjournment may be taken to some other date. That prayer for adjournment was refused and the suit was dismissed for default. Petition under Order IX Rule 9 C.P.C. (the order in which is the subject matter of revision) was filed along with the affidavit of the respondent, alleging that she could not attend Court on 24-9-2001 because of high fever.
6. A Medical Certificate also seems to have been filed along with the petition.
The facts in the decisions relied on by the learned counsel for the petitioner are entirely different from the facts of this case.
7. The ratio in those decisions is that for an order of dismissal for default being set aside, the petitioner/plaintiff has to establish sufficient ground for his no appearance on the date on which the proceedings was dismissed for default.
This Court has been consistently taking the view that merely because the Doctor who issued the Medical Certificate is not examined, a petition under Order Rules 9 or Rule 13 of Order IX C.P.C. cannot be dismissed. The fact that the respondent is a woman aged about 69 years is not denied or disputed by the petitioner. Therefore, her falling sick on the day on which the suit was dismissed for default cannot be viewed with suspicion. It cannot also be said that respondent was intending to drag on the proceeding and thereby cause inconvenience to the petitioner, because it is the respondent that filed the suit for recovery of arrears of rent against the petitioner.
8.Sickness of a party is a sufficient cause for his her non-appearance on the date on which the case is posted for enquiry or trial. In the circumstances, it cannot but be said that respondent established a sufficient cause for her non-appearance on 24-9-2001.
Order dismissing the petition filed on behalf of the respondent under Order XVII Rule 1 C.P.C. read:
"Heard the counsel for the petitioner.Perused the affidavit filed in support of the petition and also perused the telegram enclosed thereto.In the telegram it is stated that the plaintiff is suffering with high fever. There is no supporting evidence like any Medical certificate to believe the same. The suit is coming for trial and it is an identified matter of the year 1997. Therefore, in the circumstances, I do not find any justifiable grounds to adjourn the suit."
9. If I may say so the reasoning is erroneous because the Court was under the impression that in all 'identified matters' requests for adjournments, on what ever ground, have to be refused. It could not also have been possible for the respondent to send a Medical Certificate along with the telegram sent by her to her counsel. In deserving circumstances adjournments can be granted even in 'identified' cases. If a party is trying to draw on the proceedings and is employing dilatory tactics by continuously seeking adjournment, an adjournment can be refused.
10. As stated earlier, sickness of a party is a ground for adjournment. Since the order refusing an adjournment is but an interlocutory order, the said order does not and cannot operate as res judicata in the petition filed under Rule 9 of Order IX CPC. Therefore, I find no error in jurisdiction in the Court below allowing the petition under Rule 9 of Order IX CPC, though it refused to grant adjournment earlier sought by the counsel for respondent on the ground of sickness of the respondent.
11. With regard to the contention of the learned counsel for the revision petitioner about the Court below making an observation about the presence of the respondent her Doctor, and respondent giving an assurance for the early disposal of the case, it is true that those events took place in the absence of the petitioner. But that by itself is not and cannot be a ground for setting aside the order under revision because the ultimate finding of the Court below that the order of dismissal for default is liable to be set aside is a correct finding.
12. The Court cannotbe said to have committed an error in placing on record the events that took place in the Court. No doubt assures given by the respondent cannot be said to be sufficient ground for setting aside an order for dismissal for default and a petition under Rule 9 of order IX CPC can be allowed only when the plaintiff establishes sufficient cause for his or her non-appearance on the day on which the suit was dismissed for default, but not because he or she gave an assurance that he or she would cooperate for early disposal of the case. It is well known that even if the order of the Court under appeal or revision is sustainable on one on which it was passed, this Court would not interfere with such order in exercise of its jurisdiction under Section 115 CPC.
Since respondent established sufficient cause for her non-appearance on 24-9-2001, I hold that the Court below while allowing petition under Order IX Rule 9 C.P.C., did not commit an error. Therefore, I find no grounds to interfere with the order under revision.
13. In the result, the revision is dismissed with costs. Advocate fee is fixed at Rs.1,000/-.