Orissa High Court
Binod Kumar Agarwala And Anr. vs Mst. Satyabhama Debi on 1 July, 1987
Equivalent citations: AIR1988ORI44, AIR 1988 ORISSA 44, (1987) 2 ORISSA LR 192
ORDER S.C. Mohapatra, J.
1. Defendants are the petitioners in this civil revision against an order restoring the suit which was dismissed for default without notice to the petitioners. In spite of valid service of notice, plaintiff-opposite party has not entered appearance in this civil revision.
2. The suit was for title and possession which was being contested by the defendants who filed a written statement denying the plaintiff's assertion. It was posted for hearing to 5-4-1983 on which date both the parties applied for adjournment. Both the applications were rejected and the plaintiff not being ready for hearing, the suit was dismissed for default. On 26-4-1983, the application for restoration of the suit was filed accompanied by a medical certificate. The matter was posted for hearing to 12-5-1983. That day an affidavit by the son of the plaintiff was filed in support of her absence indicating therein that the plaintiff was ill. Trial Court having restored the suit believing the ground of illness, this civil revision has been filed.
3. There is no dispute that the application for restoration was under Order 9, Rule 4, C.P.C. Mr. R. N. Sinha, the learned counsel for the petitioners, submitted that even in respect of such applications notice to the defendants is mandatory. He relied upon the decision reported in (1973) 39 Cut LT 264 (Laxminarayan Agarwala v. Lachman Prasad Agarwala) in support of his contention. This decision fully supports the contention of Mr. Sinha. For rendering this decision reliance was placed on a Division Bench decision reported in ILR (1949) 1 Cut 572 : (AIR 1951 Orissa 266) (Ratnakar Ray v. Choudhury Baishnab Charan Patra). In the Division Bench decision defendants filed written statements in different sets. Defendant Nos. 1 and 2 filed a written statement. Defendant No. 3 filed one written statement and defendant Nos. 4 to 12 filed another written statement. On the date of hearing defendant Nos. 4 to 12 and the plaintiffs filed applications for adjournment. Both the applications being rejected defendant Nos. 4 to 12 filed the hazira of their witnesses, thus indicating their readiness to take part in hearing. Plaintiffs not having become ready, the suit was dismissed for default. An application for restoration was filed under Order 9, Rule 9, C.P.C. in which all the defendants were made parties. Notice was served on defendant Nos. 4 to 12. No notice was served on the other defendants. After hearing, the suit having been restored, defendants 4 to 12 filed a civil revision. While considering the matter, the Division Bench held that defendant Nos. 1 to 3 were not set ex parte and were not called at the time of hearing. Even without witnesses on their behalf, they could have taken part in the proceeding. It was held :
".....Under the circumstances and on the facts it is not clear that the order of dismissal as against these defendants can be taken to be one under Order IX, Rule 3,....."
After the aforesaid finding, the Division Bench considered academically and observed :
".....There may be a case in which defendant has not at all appeared or having appeared has not filed any defence. In such cases it is quite possible that the Court, in its discretion, may say that no notice is necessary to be served upon him in the matter of restoration, as he must be served again after the suit is restored to its file......"
So observing, the Division Bench further observed that in cases where the defendant has entered contest and has put the plaintiff to prove his case, a valuable right arises in his favour on dismissal of the suit and he should not be deprived of that right without being heard. The Division Bench directed the restoration petition to be reheard after notice.
4. The decision reported in ILR (1949) 1 Cut 572 : (AIR 1951 Orissa 266) (supra) was considered in a decision reported in ILR (1966) Cut 396 : (AIR 1966 Orissa 232) (Prahlad Prusty v. Sheikh Abdul Raheman) where both the parties filed applications for adjournment and they being rejected, when the case was called, they remained absent. The suit was dismissed. It was observed :
".....The position, therefore, is that generally a notice to the opposite party is not essential in a proceeding under Order 9, Rule 4, Civil Procedure Code. There may, however, be cases where a valuable right of the defendant may be affected. In such cases service of notice is mandatory....."
However, it was not examined whether the notice was mandatory in the case since without notice defendant appeared in the restoration proceeding.
5. In (1973) 39 Cut LT 264 (supra), the facts and circumstances were different and the facts and circumstances under which observations were made in ILR (1949) 1 Cut 572 : (AIR 1951 Orissa 266) (supra) and ILR (1966) Cut 396 : (AIR 1966 Orissa 232) (supra) were not considered. The observation in the Division Bench decision was held to be binding and it was held that the same received the support from ILR (1966) Cut 396 : (AIR 1966 Orissa 232) (supra). There is no difficulty in accepting the broad proposition that natural justice is to be followed. In what circumstances and to what extent it would be followed would depend on the facts and the circumstances of each case. In ILR (1949) 1 Cut 572 : (AIR 1951 Orissa 266) (supra) the defendants were not set ex parte and no inference could be drawn that they were not ready for hearing. In ILR (1966) Cut 396 : (AIR 1966 Orissa 232) (supra) the observation of the Division Bench was not made applicable since without notice the defendants appeared. If a defendant was absent on call at the time of hearing. I am inclined to hold that notice to him is not mandatory and in spite of the fact that the decision reported in (1973) 39 Cut LT 264 (supra) is an earlier decision, to this extent I respectfully differ.
6. My view is supported directly by a decision of this Court reported in (1973) 2 Cut WR 1174 (Harmohan Senapati v. Smt. Kamala Kumari Senapati). Distinguishing the observation in ILR (1966) Cut 396 : (AIR 1966 Orissa 232) (supra), it was held :
".....As has been stated in that decision itself, there is no provision for service of notice on the other side when an application for restoration is filed under Order 9, Rule 4, C.P.C. There may be, however, certain cases involving peculiar facts where unless such notice is given there may be prejudice to the parties....."'
7. As the circumstances appear in both the decisions reported in (1973) 39 Cut LT 264 (supra) and in (1973) 2 Cut WR 1174 (supra), they are the same. In the earlier decision reported in (1973) 39 Cut LT 264 (supra), the order was set aside and the matter was remitted back for reconsideration after notice to the defendant similar to the decision reported in ILR (1949) 1 Cut 572 : (AIR 1951 Orissa 266) (supra). In the later decision, the impugned order of restoration was not interfered with.
8. Mr. Sinha submitted that the earlier decision was not even referred to in the later decision and as a rule of precedent the earlier decision is to be followed and not the later. He submitted that in case I differ, the matter is to be referred to a Division Bench for examination of the correctness of the decision. I am not inclined to accept this submission. Both the decisions reported in (1973) 39 Cut LT 264 (supra) and (1973) 2 Cut WR 1174 (supra) were rendered by referring to ILR 1966 Cut 396 (supra). This decision examined the scope of the Division Bench decision reported in ILR (1949) 1 Cut 572 : (AIR 1951 Orissa 266) (supra). The circumstances under which the observation in ILR (1949) 1 Cut 572 : (AIR 1951 Orissa 266) (supra) was rendered were different. Even in ILR (1949) 1 Cut 572 : (AIR 1951 Orissa 266) (supra) it was observed that the Court has, in certain circumstances, jurisdiction to say that no notice is necessary. The decision restoring the suit cannot be said to be without jurisdiction. In ILR (1949) 1 Cut 572 : (AIR 1951 Orissa 266) (supra) the trial court did not apply its mind why no notice would be sent. It was observed :
".....We take a serious notice of this sort of order which implies nothing but slackness and negligence on the part of the Presiding Officer as well as of the Bench Clerk concerned."
The observation is directly applicable to the present case where the trial court did not apply its mind why no notice would be necessary. There is no difficulty in my observing that the inspecting authorities would give importance to this observation and shall bring it to the notice of the authorities in charge of dealing with the delinquency. As has been observed by A. N. Sen, J. in the decision reported in AIR 1983 SC 355 (Bhagwan Swaroop v. Mool Chand) :
"Excuse of lapses in compliance with the laws of procedure, as a matter of course, with the avowed object of doing substantial justice to the parties may in many many cases lead to miscarriage of justice."
This observation has full application to cases where judicial mind is not applied.
9. Mr. Sinha, relied upon the aforesaid decision of the Supreme Court reported in AIR 1983 SC 355 (supra) which is to the effect that the procedure laid down in the Civil Procedure Code should be followed.
Supreme Court keeping that in view gave a chance to the negligent party to bring the legal representatives on record. While allowing the appeal, it directed for payment of costs by the negligent appellant.
10. Where the prejudice to a party is irreparable, non-observance of the procedure laid down under the law and of the principle of natural justice would be taken seriously. Three courses are open thus :
(i) in some cases, the impugned order in favour of the neglecting party would be reversed and the litigation would be brought to an end -
(ii) in some other cases, the impugned orders would be set aside and the parties would be given a chance to follow the procedure under the law; and
(iii) in some cases, even if there would be some prejudice, the order would not be disturbed.
11. In ILR (1964) Cut 18 : (AIR 1964 Orissa 134), (Bahadur Pradhani v. Gopal Patel, it was observed :
"There is another broad principle why this order of restoration of the suit should not be interfered with in revision. The revisional powers are discretionary. It is consistently held that the revisional powers should not be exercised in a case where the exercise of the power is likely to cause injustice to a party. If the discretion is used to interfere with the order, the suit is to be dismissed and the plaintiff would have no opportunity to get his case investigated into by the Court. Once the trial court has exercised the discretion in favour of the party, it would be unusual for the High Court to interfere with the exercise of the discretion unless it is injudiciously exercised,"
The same is the view in (1973) 2 Cut WR 1174 where it has been observed :
".......There is another wholesome rule that where restoration is allowed and the opposite party gets an opportunity to contest, the High Court will not ordinarily interfere in revision under Section 115, C.P.C......."
In (1973) 39 Cut LT 264 (supra), the earlier decision reported in ILR (1964) Cut 18 : (AIR 1964 Orissa 134) (supra) has not been referred to ILR (1964) Cut 18 : (AIR 1964 Orissa 134) (supra) has been distinguished in ILR (1965) Cut 555 : (AIR 1966 Orissa 59), (Golak Chandra Biswal v. State of Orissa) where the application for restoration was barred by limitation and Court has no jurisdiction to entertain an application barred by limitation in view of Section 3 of the Limitation Act. This has been followed in ILR (1965) Cut 562, (Dinabandhu Patnaik v. Ananta Charan Sahu). Same is the principle in (1965) 31 Cut LT 443, (Narayan Nayak v. Sara Bewa). In ILR (1970) Cut 814. (Kautuki Sahuani v. Sodi Buchiamma). It has been held relying on the aforesaid two decisions that where substantial justice has been done, even if the decision would be beyond jurisdiction it would not be interfered with in revision. The principle of absence of jurisdiction in matters barred by limitation was accepted in (1970) 36 Cut LT 279, (Bhima Padhan v. Masyaraju). (1965) 31 Cut LT 443 (supra) has been distinguished in AIR 1973 Orissa 235, (Papu Khan v. Fatima Babi). Considering the two views, in the decision reported in (1981) 52 Cut LT 188 : (AIR 1981 Orissa 202), (Rudramani Padhan v. State of Orissa) it was held that on the finding that there is no sufficient cause the Court has no jurisdiction to set aside the ex parte decree. Such order was interfered with in revision. However, the cases where the application is barred by limitation or the Court finds that there is no sufficient cause stand on a different footing which are distinguishable and it will be academic to consider the same in the present case.
12. The question can be examined from another aspect. Since after amendment of the Civil P.C. in Act 104 of 1976, it has been clarified in Section 141 that proceedings under Order 9 are also proceedings to which the provisions of the Code are applicable. Thus, Order 9 is not confined to suits only. It applies to proceedings under Order 9 also. Petitioners did not avail of this remedy to set aside the ex parte order restoring the suit and rushed to this Court in Civil Revision with limited jurisdiction keeping the public policy of early finality of litigations and to avoid aggrieved persons approaching higher forums, this has been provided. In case I set aside the order and remit the matter back for reconsideration further time and energy would be lost. Litigation is not a gamble. Real dispute between the parties is resolved by independent agency having confidence of the litigants. The ultimate effect is peace in the society. Therefore, the public policy is early finality of the litigations. When the petitioners are getting a chance to contest the real dispute, finality should not be given on account of absence of notice for which party alone cannot be blamed. Court has also contributed to the same on account of the negligence of the Presiding Officer. True, it was duty of the plaintiff to point out the fact of absence of notice to the Court. However, I am not inclined to hold that it is a sufficient ground either to give finality to the litigation or prolong the same by setting aside the order and remitting it back. As in the Supreme Court in the decision reported in AIR 1983 SC 355 (supra) cost would mitigate the grievance of the petitioners. I direct the plaintiff to pay a cost of Rs. 200/- (Two hundred) to the defendants which would not be a part of the costs in the suit.
13. Whether the affidavit of the son of the plaintiff and the medical certificate are materials on record, need not be answered by me which is purely academic in the circumstances of the case.
14. In the result, the civil revision is allowed in part to the extent indicated above. The trial court shall do well in disposing of the suit by the end of the year 1987 latest. No costs.