Patna High Court
Express Cables Pvt. Ltd. vs N.S. Mukherjee And Anr. on 16 March, 1983
Equivalent citations: AIR1983PAT269, AIR 1983 PATNA 269
JUDGMENT B.P. Griyaghey, J.
1. This is an appeal against the order dated 31-7-1980 passed by the Additional Subordinate Judge II, Patna dismissing the application of this appellant filed under Order 9, Rule 9 of the Civil P. C. (hereinafter referred to as the Code), which was an application to set aside the order of dismissal dated 13-2-1980 passed in Title Suit No. 245 of 1976. The said order of dismissal passed in the suit was purported to have been passed under Order 9. R, 8 of the Code. Besides that, that was an application also under Section 151 of the Code.
2. The present appellant which was the plaintiff in the suit is a Private limited company and had filed the suit against several defendants, namely defendants 1 1o 5. The suit was dismissed on 13-2-1980 on account of the plaintiff-appellant having not appeared in the suit on that date. It was not only on that date but the plaintiff--appellant was absenting itself from the suit continuously since last several dates i.e. from 26-11-1979. It was ultimately on 13-2-1980, on which date also the plaintiff did not appear and therefore the suit was dismissed for default. The grounds taken by this appellant, the plaintiff of the suit, for its absence during that period was that the plaintiff had entrusted the pairvi of the suit to one of its employees namely. Shri Govind Prasari Shrivastava and that the said Shri Govind Prasad Shrivastava fell ill and remained ill during the period from 15-11-1979 to 20-12-1979. Further case of plaintiff-appellant was that when Shri Govind Pd. Srivastava recovered from his illness he tried to trace out about the pendency of the suit but he learnt that the suit was dismissed for default on 13-2-1980. It. is stated that during that period i.e. after 26-11-1979 the suit was transferred from the court of Additional Subordinate Judge XIII. where it was pending to the court of Additional Subordinate Judge I! but no information about the transfer was given to the plaintiff-appellant and therefore, no step could be taken in the suit and as such it was dismissed for default on 13-2-1980. It was stated in the rejoinder filed by the defendants that the Plea of illness was false and that the plaintiff had voluntarily left the suit and therefore, it was in due course dismissed for default It was further stated that the plaintiff was not prevented from knowing about the transfer of the suit and it was a falsa plea that on that ground he could not take step in the suit. The trial court has disbelieved the grounds taken by the plaintiff-appellant for its absence in the suit during the period. On examination of the evidence, materials and circumstances I also feel that the trial court was right in dismissing the plea of the plaintiff-appellant about the illness and also the Plea taken about not taking steps due to its want of knowledge about the transfer of the suit from one court to another. The Plea of illness was simply flimsy, because it was not a case of a private individual that illness of Shri Govind Prasad Shrivastava could have been material. Shri Govind Prasad Shrivastava is said to be doing Pairvi in the suit as an employee of the Company, and therefore, even if he had fallen ill, the Pairvi could have been done by any other employee of the Company. It has been admitted by Govind Prasad Shrivastava that he did not even apply for leave during the period he was ill, and that makes it doubtful that he was really ill. He has also admitted that he did not inform the Company that he was not taking steps in the suit during that period. This means that his explanation that he was ill during that period and could not take step on that account, does not appear to be true.
3. Besides that, that period of alleged illness is very insignificant in the long period of the proceeding in the suit in which period the plaintiff had not taken any step. It appears from the record that it was from 26-11-1979 that no step was taken in the suit on behalf of the plaintiff till 13-2-1980 when it was dismissed for default. The case of the plaintiff-appellant with respect to the subsequent period after the alleged illness is based on the ground that the suit was transferred in the meantime from one court to another and that the plaintiff could not have a track to know the next date fixed in the suit. But on this point there is absolutely no evidence to show that, even after the recovery from the alleged illness Govind Prasad Shrivastava or any other employee of the plaintiff contacted the lawyer or any step was taken to know about the suit. No information-slip had been filed in the suit to have the trace of the next date in the suit. A false story has been Riven by Govind Prasad Shrivastava that he learnt about the suit after his recovery from illness from some one in the Record Room. But his evidence in this respect as A. W. 2 in para 7 is that he had learnt from some one in the Record Room who told him that his suit had been transferred to the Court of Additional Subordinate Judge II. This evidence is very much significant which would go to show that he knew about the transfer of the suit, presumably before it was dismissed for default. He could have, therefore, taken step in the suit even thereafter. But he did not take any step after recovery from his alleged illness on 20-12-1979. It was long after that i. e. on 13-2-1980, alter several dates, during which period the plaintiff continued to be absent in the suit, that it was dismissed for default on 13-2-1980, The evidence of Govind Prasad Shrivastava in para 7 is that even after recovery from illness he did not consult his lawyer about the suit. Therefore, from the evidence and circumstances the plea taken by the plaintiff-appellant that it was on account of the case having been transferred to another court that it could not take step in the suit, cannot for any moment be accepted. It may be noted at this place that it was even from before the date of transfer of the suit from one court to another, that is on 26-11-1979 also the plaintiff was absent from the court. Therefore on consideration of the evidence and the materials it is clear that the learned trial court has rightly rejected the grounds of explanation that the plaintiff-appellant had given for not having taken step in the suit during the entire period and ultimately on 13-2-1980 when it was dismissed for default.
4. But the order of dismissal dated 13-2-1980 passed by the learned court below, which is the subject matter of this appeal, has to be set aside on another ground, namely, that the order of dismissal was passed on hearing made in the suit, though the suit was not ready for hearing. By referring to an order dated 2-11-1979 passed in the suit it would appear that the suit was pending awaiting the receipt of the postal acknowledgment of the registered notice that had been sent to defendants 3 and 4 in the suit. The order dated 2-11-1979 is in Hindi, the English version of which is like this :--
"Plaintiff files hazri. The defendants do not take any step. The postal acknowledgments with respect to notices issued to defendants 3 and 4 have not been received. Awaiting that put up on 10-11-79".
But on the next date i.e. on 10-11-1979 it appears that peculiarly a different order was passed which was like this:--
"Hazri has been filed on behalf of both the parties. The Presiding Officer has been transferred and. therefore, let this suit be fixed on 24-11-79 for settlement of issues."
The Civil Procedure Code prescribes a procedure that it was only after the summonses and notices have been served on the defendants that the suit will be taken up for filing of the written statement and for settlement of issues and for hearing. It may be mentioned at this place that some of the defendants of the suit had filed written statement, but still service report of notices which were sent by registered post to defendants 3 and 4 had not been received and, therefore, the suit was not ready to be taken up for hearing or even for settlement of issues. It appears that there was a mistake committed by the Court below in its order dated 10-11-1979 and that the previous order awaiting the re-ceipt of postal acknowledgment was overlooked and the suit was fixed for settlement of issues. Thereafter the same error in the order continued on subsequent dates putting up the suit for settlement of issues, and so it was on 13-2-1980 that the suit was put up for settlement of issues, and due to the absence of the plaintiff it was dismissed for default. The suit could not have been posted for settlement of issues, nor for hearing, when the postal acknowledgment with respect to the notices issued to defendants 3 and 4 was not received.
5. Learned counsel for the respondents contends that even if the post acknowledgments with respect to the notices sent to defendants 3 and 4 were not received, the plaintiff could not take advantage of it. It is contended that it was those defendants whose postal acknowledgments were not received could have taken this ground. But this contention of the learned counsel does not appear to be correct because it was the procedure prescribed by the Code and that had to be followed for making the suit ready for hearing, and that in that condition the suit could be dismissed under Order IX, Rule 8 of the Code which provides that on a date fixed for hearing if the plaintiff does not appear, the suit shall be dismissed for default. It could not be a date fixed for hearing because it was really a date awaiting the receipt of the postal acknowledgments of notices sent to some of the defendants. It could be at the stage after the Court was satisfied that service of summonses and notices issued to all the defendants were served or the postal acknowledgments were received that the suit could be posted for hearing. Clause (2) of Order V, Rule 19A of the Code provides a procedure that after a postal notice is sent to a defendant in the suit and the postal acknowledgment is received with an endorsement purported to have been made by a postal employee that the defendant or his agent refused to take delivery of the notice, the Court shall declare by its order that the summons had been duly served on the defendant. The Proviso to Clause (2) further provides that in a case where summons sent by registered post with acknowledgment due the postal acknowledgment is not received back within 30 days from the date of issue of the summons, the Court may make a declaration to the effect that the summonses were duly served notwithstanding the fact that the acknowledgment having been lost or mislaid or for any other reason has not been received by the Court. This is a procedure which is mandatory to be followed in order to have on the record the satisfaction of the Court that summonses have been duly served on all the defendants of the suit because that is a condition precedent for the Court to proceed further with the hearing of the suit. Such declaration was not made by the Court in the present, suit and, therefore, the suit could not be said to have been ready for hearing. In that view of the matter, the suit could not be dismissed under Order IX. Rule 8 of the Code on account of the absence of the plaintiff on the date said to be fixed for hearing of the suit. The order of dismissal, therefore, passed by the learned court below was illegal and. therefore, it has to be set aside.
6. It has been argued by learned counsel for the respondents that the application of this appellant under Order IX, Rule 9 of the Code was not maintainable in view of the fact that the order of dismissal which was passed by the learned court below could not be under Order IX, Rule 8 of the Code in view of the position of law stated above. This argument has no force as the application of this ap-pellant was filed before the court below was not only under Order IX. Rule 9 of the Code, but was also under Section 151 of the Code. In view of the illegal nature of the order of dismissal, the same has to be set aside under the inherent power of the Court under Section 151 of the Code. The order of dismissal dated 13-2-1980 is, therefore, set aside. The appeal is allowed. The suit will be restored to its original number and the court below will proceed to dispose of the suit as soon as possible after complying with the provision of the Proviso to Clause (2) of Order V, Rule 19A of the Code by making a declaration of the nature as indicated above, if materials in that respect are available on record. There will, however, no order as to costs. Let the records of the case be sent down immediately.
Birendra Prasad Sinha, J.
7. I agree.