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1 - 10 of 13 (0.25 seconds)Prakash Chander Manchanda And Anr vs Smt. Janki Manchanda on 18 November, 1986
However, in the facts of the case at hand, as noted above,
the case falls under Order XVII Rule 3(b) as this Court has already
observed in the facts of the case apply the principles settled in the Hon'ble
Supreme Court case of Prakash Chander Manchanda and Anr. Vs. Janki
Manchanda (supra) applied by this Court in Harsukh B. Gohel Vs. Vinod
Kumar Bindlish & Ors (supra) that the holding Advocate's presence was
akin to his absence. I do not therefore agree with the submission on
behalf of the Petitioners that such an interpretation would negate the
1976 amendment or that the Plaintiff can drag on a suit at every stage, it
would be dismissed for want of prosecution and simply ensure that the
application for restoration is filed on the same day.
Chembur Trombay Education Society And ... vs D.K. Marathe And Ors. on 1 October, 2001
20. Learned Counsel would submit that the Appellate Court has given
undue importance to the change report having been obtained by the
Respondents on the same day when the amendment application was to be
filed as a last chance i.e. on 11th January, 2013, thereby justifying the
Respondent' reason inter alia to seek an adjournment. That an application
for amendment can be filed by the parties even without obtaining the
change report and filing of a change report is not a condition precedent.
Learned Counsel relies upon the decision in the case of Chembur Trombay
Education Society & Ors Vs. D.K. Marathe & Ors6 and submits that the
Appellate Court has erred in considering the submissions of the
Respondents with respect to the change report thereby allowing the
appeal.
Govind Ranganath Kale vs Maharashtra Revenue Tribunal, Pune And ... on 3 September, 1980
Referring to these observations in the case of Govind Rangnath Kale vs.
Maharashtra Revenue Tribunal, Pune & Another (supra) it has been
submitted that if a junior Advocate can file an adjournment Application,
he would also have the authority to file an amendment Application and
that, the word appearance as considered by the Appellate Court would
negate the entire purpose of the amendment. Further that ill health of an
Advocate cannot be a reason for seeking an adjournment / restoration of a
Suit. I am afraid, I am unable to agree with the submissions made on
behalf of the Petitioners.
C. Chennaiya Naidu vs Panchayat Board, Venukadathampatti on 4 April, 1978
56. Mr.Kadiani has also sought to rely upon the decision in the case of
C. Chennaiya Naidu vs. Panchayat Board, Venukadathampatti (supra)
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submitting that the Trial Court has correctly come to a finding that since
parties were present, the order dated 11 th July 2013 amounts to dismissal
on merits and consequently the order was passed under Order XVII Rule 3
against which there is no provision for restoration. In that case,
application for adjournment was filed by Plaintiff on the ground that the
important witness had not come and the application came to be rejected.
The Court dismissed the Suit for non-prosecution and it was held that the
dismissal of the Suit by the Trial Court was not under Order XVII Rule 2
but under Order XVII Rule 3 of the CPC. The Appellate Court has, in my
view, rightly distinguished this decision holding that in the facts of that
case, the Plaintiff was present before the Court when the Suit was
dismissed. But in the present case, the Plaintiffs, as can be noted in the
facts and from the Roznamas, the Plaintiffs were not present. The Madras
High Court took a view that if the Plaintiff is present but for some reason
or other he does not prosecute the Suit, then the Court is enjoined under
Order XVII Rule 3 of the CPC to decide the Suit. Those are not the facts of
the case here and I agree with the finding of the Appellate Court that in
the facts of the present case, the Plaintiffs were not present and therefore
the order of dismissal cannot be said to be on merits and Order XVII Rule
3(b) would apply and not Order XVII Rule 3(a). Therefore, Order 17 Rule
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2 would become applicable under which the recourse for restoration
under Order IX is perfectly maintainable.
Harsukh B. Gohel vs Vinod Kumar Bindlish & Ors on 27 January, 2014
(b) when the parties or any one of the parties is absent, the Court is
obliged to proceed under Rule 2 and that under Rule 2, the Court may
proceed to dispose of the suit in the modes as contained in Order IX or
make such order as it thinks fit. That in the present case, the suit was fixed
for evidence of the Plaintiffs, but no evidence was adduced by the
Plaintiffs and therefore, going by the language of Rule 2 of Order XVII, it
was clear that if one of the parties had failed to appear, the Court has to
proceed to dispose of the suit in one of the modes prescribed under Order
IX. The Appellate Court has correctly observed that neither the Plaintiffs
nor their Advocate on record were present and the adjournment
application had been filed by the Advocate holding for Advocate on
record, which was rejected by the Trial Court. The Trial Court dismissed
the suit for want of prosecution. No evidence was led by the Plaintiffs. If
the Plaintiff is absent and the Advocate is not ready, it is upon the Court to
dismiss the suit for default of appearance, but such a dismissal is not a
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decision in the suit, but a refusal of the Court to deal with it in the
absence of the party. May be that the next steps were for making an
application for necessary amendments but it cannot also be denied that
there was no evidence. The Appellate Bench has correctly relied upon the
decisions in the cases of Harsukh B. Gohel vs. Vinodkumar Bindlish
(supra), Braithwaite Burn & Jessop Construction Co. Ltd. Vs. Abdul
Gafoor & Ors. (supra) and in my view, correctly held in paragraph 24 that
the Trial Court ought to have considered that the Plaintiffs and their
Advocate on record was absent on the date of hearing and if that were so,
Application under Order IX Rule 9 filed by the Plaintiffs for restoration
was maintainable and that the Trial Court order is holding otherwise.
Sainath Mandir Trust vs Vijaya & Ors on 13 December, 2010
53. Reliance by Mr.Kadiani on the decision in the case of Golesh Kumar
vs.Ganesh Dass Chawla Charitable Trust (supra) , in my view, at this stage,
does not appear to be relevant, in as much as what the Trial Court and the
Appellate Court were concerned with was whether the restoration
application was in the facts of the case maintainable or not. That, under
Order XXXI Rule 2 of the CPC where Suits are instituted by and on behalf
of the Trust, the willing trustees should be joined as Plaintiffs while all
other unwilling trustees should be joined as Defendants and that the Suit
without inclusion of all the trustees members of the Trust would not be
maintainable, is a matter to be considered by the Trial Court.
Braithwaite, Burn & Jessop ... vs Abdul Gafoor And Ors. on 6 June, 1985
(b) when the parties or any one of the parties is absent, the Court is
obliged to proceed under Rule 2 and that under Rule 2, the Court may
proceed to dispose of the suit in the modes as contained in Order IX or
make such order as it thinks fit. That in the present case, the suit was fixed
for evidence of the Plaintiffs, but no evidence was adduced by the
Plaintiffs and therefore, going by the language of Rule 2 of Order XVII, it
was clear that if one of the parties had failed to appear, the Court has to
proceed to dispose of the suit in one of the modes prescribed under Order
IX. The Appellate Court has correctly observed that neither the Plaintiffs
nor their Advocate on record were present and the adjournment
application had been filed by the Advocate holding for Advocate on
record, which was rejected by the Trial Court. The Trial Court dismissed
the suit for want of prosecution. No evidence was led by the Plaintiffs. If
the Plaintiff is absent and the Advocate is not ready, it is upon the Court to
dismiss the suit for default of appearance, but such a dismissal is not a
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decision in the suit, but a refusal of the Court to deal with it in the
absence of the party. May be that the next steps were for making an
application for necessary amendments but it cannot also be denied that
there was no evidence. The Appellate Bench has correctly relied upon the
decisions in the cases of Harsukh B. Gohel vs. Vinodkumar Bindlish
(supra), Braithwaite Burn & Jessop Construction Co. Ltd. Vs. Abdul
Gafoor & Ors. (supra) and in my view, correctly held in paragraph 24 that
the Trial Court ought to have considered that the Plaintiffs and their
Advocate on record was absent on the date of hearing and if that were so,
Application under Order IX Rule 9 filed by the Plaintiffs for restoration
was maintainable and that the Trial Court order is holding otherwise.
Prashant Vagaskar And Ors. vs Municipal Corporation Of Greater ... on 19 October, 2001
Accordingly, the Court, after
analyzing the decision of this Court in the case of Prashant Vagaskar and
Ors Vs. Municipal Corporation of Greater Bombay (supra), which relied
upon the Full Bench decision of Calcutta High Court in the case of Satish
Chandra Mukharjee Vs. Ahara Prasad Mukherjee 10 and also noting the
High Court amendment of Andhra Pradesh which added an explanation to
Order XVII Rule 2, held that mere presence in Court of a party or his
Counsel not duly instructed shall not be considered to be an appearance.
The Court observed that the presence of the Counsel has to be an effective
presence and not merely physical presence. The Counsel should be ready
with the matter and be able to assist the Court. The appearance of the
9 2009(4) Mh. L. J.
M/S. Devidayal Sales Pvt.Ltd vs The State Trading Corporation on 25 February, 2009
Mere physical presence, as noted
above, cannot be said to be effective presence or appearance as observed
by this Court in the case of Devidayal Sales Pvt. Ltd. vs. State Trading
Corporation (supra). The presence should be purposeful in the sense that
the Advocate appearing should take part in the proceedings, should be
prepared to lead evidence and produce documents or take steps towards
disposal of the Suit and for any reason the Advocate is precluded or seeks
an adjournment, such an appearance cannot be said to be an appearance
as contemplated under Order XVII Rule 3(a) of the CPC. Therefore the
said decision, in my view, does not assist the Petitioners. I am also unable
to agree with the submission of the learned Counsel for the Petitioners
that ill health of an Advocate cannot be a reason seeking an
adjournment / restoration of a suit.