2012(2) ALL MR 554
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.S. DALVI, J.
The Cotton Corporation Of India Ltd. Vs. Sree. Shanmugar Mills & Anr.
Notice of Motion No. 3058 of 2009
31st January, 2012
Petitioner Counsel: Mr. S. K. CHARI i/b M/s. M. V. KINI & CO
Respondent Counsel: Ms. RINKU MISTRY i/b PUROHIT & CO
(A) Civil P.C. (1908), O.9 Rr.8, 9, O.17 Rr.3, 2 - Dismissal of suit - On date of dismissal order plaintiff and defendants were represented by Advocates - Plaintiff's witness did not appear for cross examination - Therefore suit not liable to be dismissed by following procedure under O.9 R. 8 - Order of dismissal was passed under O.17 Rr. 3, 2. (Paras 4, 5)
(B) Civil P.C. (1908), O.9 Rr.3, 13, O.17 Rr.3, 2 - Dismissal of suit - Suit dismissed as plaintiff's witness did not appear for cross examination - Restoration of suit would mean that Court sits in appeal against dismissal order - Purpose of O.17 R. 3 would be defeated if application is allowed - Notice of motion is maintainable only for suit dismissed in default - O.9 can never apply to suits in which plaintiff appears and fails to carry out directions of court or to prosecute suit - Notice of motion liable to be dismissed. (Paras 9, 10)
JUDGMENT
JUDGMENT :- This Notice of Motion has been taken out for restoration of Suit dismissed on 14.07.2009. The Notice of Motion is taken out on the premise that the Suit is dismissed for default. The Suit has been dismissed on 14.07.2009 for want of prosecution as the Plaintiff's witness did not appear before the Court for cross-examination. The order records the previous dates also when the Plaintiff's witness failed to appear for crossexamination. The order specifically makes a reference of the previous date of hearing. On the previous date of hearing which was 29th June, 2009, the Plaintiff was represented by its Advocate. The reason for the non appearance of the witness was given to Court. It was stated that the witness could not arrange for the railway ticket. The Court observed that necessary arrangement should have been made since that date of hearing was given. By way of indulgence the Court adjourned the Suit to 14th July, 2009 and made it clear that if the witness did not appear, the matter would be dismissed for non prosecution. That is what the Court did on 14th July, 2009. The Court set out what transpired on 29th June, 2009. The Court thereafter dismissed the Suit for want of prosecution.
2.The order records that the Suit has dismissed under Order 9 rule 9 of the Code of Civil Procedure. The relevant part of Order 9 Rule 9 runs thus :
9. Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
3.In such a case the Suit must be dismissed upon the procedure under Order 9 Rule 8 of the Code of Civil Procedure being followed. Order 9 Rule 8 runs thus :
8. Procedure where defendant only appears.- 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.
4.In this case on the date of dismissal of the Suit, the Plaintiff as well as the Defendant were represented by their Advocates. The Plaintiff's witness only had not appeared stricto senso and, therefore, the Suit would not have been liable to be dismissed upon the procedure having been followed under Order 9 Rule 8 of the Code of Civil Procedure by the Court. Since that provision relates only to non appearance of the Plaintiff and appearance of the Defendant only necessitating the Court to dismiss the Suit.
5.In this case the Suit was kept for hearing. The stage of hearing was the crossexamination of the Plaintiff's witness. The Plaintiff's witness has failed to appear. A reason was given to Court. The Court granted indulgence. The Court clarified that on the next date of hearing the Suit would be dismissed for non prosecution. Even then on the next date of hearing the Plaintiff's witness failed to appear. Hence the matter could not proceed. Consequently the order that came to be passed was under Order 17 Rules 3 and 2 of the Code of Civil Procedure. Order 17 Rules 3 and 2 run thus :
3. Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under rule 2.]
2. Procedure if parties fail to appear on day fixed.- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such order order as it thinks fit.
6.The Suit under the aforesaid provision is dismissed upon seeing that the Plaintiff has not prosecuted the Suit. Restoration of such Suit would mean that this Court sits in Appeal against the order of dismissal. It would mean that what the Plaintiff could not obtain from the Court on the date of dismissal, the Plaintiff can obtain from the same Court much later in another application. The entire purpose of Order 17 Rule 3 would be defeated if such an application is granted.
7.A Notice of Motion for restoration is maintainable only for a Suit dismissed for default. Such a Suit would have to be dismissed under Order 9 Rule 3 of the Code of Civil Procedure. Order 9 Rule 3 runs thus :
3. Where neither party appears, suit to be dismissed.- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.
8.If a party fails to appear and shows cause for such non appearance, the decree or order passed under Order 9 Rule 3 would be set aside under Order 9 Rule 13. The relevant part of which runs thus :
Setting aside decrees ex parte
13. Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
9.Order 9 can never apply to Suits which have come up for hearing in which the Plaintiff appears and fails to carry out the directions of the Court or otherwise prosecute the Suit.
10.Consequently the Notice of Motion itself is misconceived. This Court cannot restore the Suit dismissed upon the Plaintiff not prosecuting the Suit as per the directions of the Suit.