WRIT PETITION NO. 6364 OF 2016

10th February 2020

Petitioner Counsel: Mr. M. D. Lakhey
Respondent Counsel: Mr. K. J. Topale
Act Name: Code of Civil Procedure, 1908

HeadLine : Civil P. C. (1908), O. 9, Rr. 3, 4 – When suit is dismissed in default due to absence of plaintiff, as per O. 9, R. 4 Court can set aside order of dismissal if it was satisfied that party applying for such setting aside of dismissal has shown sufficient cause for non-appearance when suit was dismissed.

Cases Cited :
Paras 7, 9, 10, 16: ICICI Bank Ltd. Vs. Vikram Seth reported in 2012(3) Mh.L.J. 394
Paras 9, 17: Raghunath Kishanrao Thigle Vs. Zilla Parishad, Osmanabad reported in 2012 (2) Mh.L.J. 560
Paras 10, 16: State Bank of India Vs. M/s. Kumar Apparel Industries and others reported in 2002 (4) ALL MR 682
Paras 10, 16: The Cotton Corporation of India Ltd. Vs. Sree. Shanmugar Mills and anr. reported in 2012 (2) ALL MR 554

JUDGEMENT

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by the consent of learned counsel appearing for the rival parties.

3. By this writ petition, the petitioner (original plaintiff) has challenged orders passed by the Court below, dismissing in default the suit filed by the petitioner, and thereafter, refusing to restore the same by holding that if the sufficiency of cause sought to be shown by the petitioner was to be considered by the Court below, it would not be appropriate because as per the procedure prescribed under the Code of Civil Procedure, 1908 (CPC) this was an aspect which could be considered only in an appeal. The said order of the Court below was then challenged by the petitioner by filing appeal before the District Court, which stood dismissed by judgment and order, which is also under challenge in the present writ petition.

4. The brief facts leading upto filing of the present writ petition are that the petitioner had filed a suit for partition and separate possession in the year 2004. The suit stood dismissed in default by impugned order dated 25/02/2010, passed by the Court below. It was observed in the said order that issues had been framed on 24/03/2008 and since then the matter was kept for hearing. It was then specifically observed that the petitioner (plaintiff) was absent, while his Advocate was present who was unable to furnish any reason for not adducing evidence and that no application for adjournment was on record. Thereafter, it was recorded that there was no option, but to dismiss the suit. Accordingly, the suit stood dismissed in default.

5. Thereafter, the petitioner filed an application for setting aside dismissal of the suit and seeking restoration of the suit. The said application was filed along with an application for condonation of delay. It is undisputed that the application for condonation of delay was allowed by the Court below, subject to deposit of costs by the petitioner. It is also undisputed that the said amount of costs were deposited by the petitioner.

6. Thereafter, when the application for setting aside the order dated 25/02/2010 and for restoration of the suit came up for consideration, in the impugned order dated 28/06/2013 passed by the Court below, it was held that considering the said application would amount to the same Court sitting in appeal over its order. On this basis, the Court below refused to consider the sufficiency of cause demonstrated by the petitioner, holding that the same could be examined in an appeal.

7. Reference was made to judgment of this Court in the case of ICICI Bank Ltd. vs. Vikram Seth reported in 2012(3) Mh.L.J. 394.

8. This order was made subject matter of challenge by the petitioner in an appeal before the District Court. The appeal also stood dismissed by impugned judgment and order dated 26/04/2016. Aggrieved by the same, the petitioner filed the present writ petition.

9. Mr. M. D. Lakhey, learned counsel appearing on behalf of the petitioner submitted that the Courts below committed an error in refusing to consider the sufficiency of cause shown by the petitioner and in failing to consider the application for restoration of the suit. It was submitted that the Court below could have exercised power under Order 9 Rule 4 of CPC, considering the facts and circumstances of the present case. It was submitted that reference to Order 17 Rule 3 of the CPC and making that as the basis for not considering the application for restoration, demonstrated an erroneous approach by the Courts below. It was submitted that the facts in the case of ICICI Bank Ltd. vs. Vikram Seth (supra), were distinguishable from facts of the present case. Reliance was placed on the judgment of this Court in the case of Raghunath Kishanrao Thigle vs. Zilla Parishad, Osmanabad reported in 2012 (2) Mh.L.J. 560 to contend that the Court below ought to have considered the sufficiency of cause demonstrated by the petitioner, particularly when the application for condonation of delay had been allowed in favour of the petitioner.

10. On the other hand Mr. K. J. Topale, learned counsel appearing for the respondents submitted that the Court below had correctly applied the ratio of judgment in the case of ICICI Bank Ltd. vs. Vikram Seth (supra) and the provisions under Order 17 Rule 3 of the CPC, to hold that considering the contentions raised on behalf of the petitioner would amount to the Court below sitting in appeal over its own order dismissing the suit. Additionally, reliance was placed on judgments of this Court in the case of State Bank of India vs. M/s. Kumar Apparel Industries and others reported in 2002 (4) ALL MR 682 and The Cotton Corporation of India Ltd. vs. Sree. Shanmugar Mills and anr. reported in 2012 (2) ALL MR 554. It was submitted that on a proper application of Order 17 Rule 3 of the CPC to the facts of the present case, it would become clear that no error is attributable to the impugned orders passed by the Courts below.

11. Heard learned counsel for the rival parties and perused the material on record. In order to examine as to the nature of the order passed by the Court below while dismissing the suit, it would be necessary to peruse the order dated 25/02/2010 passed by the Court below and to specifically appreciate the expressions used therein. A perusal of the order shows that it is clearly recorded by the Court that the petitioner (plaintiff) was absent, although Advocate representing the petitioner was present in Court. It was also recorded that the Advocate was unable to furnish any reason for not adducing evidence and further that there was no application for adjournment. It is significant that having noted these facts, the Court specifically dismissed the suit in default.

12. The question is, as to when the dismissal of the suit was in default and the petitioner (plaintiff) was absent, which would be the source of power exercised by the Court below while dismissing the suit in default. It is also relevant that in the said order there is no reference made to the fact as to whether the defendant was present in Court. Therefore, this Court has to proceed on the basis of the fact recorded in the order dated 25/02/2010 that the plaintiff was absent when the suit stood dismissed in default. It can not specifically be concluded that the defendant was present.

13. In this backdrop, when Order 17 of the CPC is perused, it becomes clear that the Court is to proceed under Rule 3 thereof. Before proceeding to apply the said provision to the facts of the present case, it would be appropriate that relevant portion of Order 17 of CPC is reproduced, which reads as follows :-
“Order 17 Rule 1. …………….
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 other order as it thinks fit.
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”

14. A perusal of the above provision, particularly Rule 3 of Order 17 of the CPC, shows that where a party to the suit is granted time to produce evidence and it fails to do so, the Court has two options to proceed in the matter, i.e. (a) if the parties are present then to proceed to decide the suit forthwith or (b) if the parties are absent or any of them is absent, to proceed under Rule 2 of Order 17 of the CPC. In the present case, there can be no dispute about the fact that the petitioner (plaintiff) was absent on 25/02/2010. Therefore, the Court was necessarily required to proceed under Order 9 of the CPC. Order 9 of the CPC pertains to appearance of parties and consequence of non-appearance. Order 9 Rule 3 provides for a contingency where neither party appears and the suit is dismissed, while order 9 Rule 8 deals with the contingency where only the defendants appear.

15. In the present case, the order dated 25/02/2010 clearly records that the petitioner (plaintiff) was absent. It is not recorded that the defendants were present. Therefore, Order 9 Rule 8 would certainly not apply. In this situation, in the peculiar facts and circumstances of the case, it appears that the manner in which the power was exercised by the Court below while dismissing the suit in default by order dated 25/02/2010, the source of such power can be traced only to Order 9 Rule 3 of the CPC. Once such a conclusion is reached, the Court would exercise power under Order 9 Rule 4 of the CPC, which again gives two options to the Court. One would be for the plaintiff to bring a fresh suit subject to the law of limitation or the Court itself could set aside the order of dismissal, if it was satisfied that the party applying for such setting aside of dismissal had shown sufficient cause for non-appearance when the suit was dismissed.

16. In the present case, the application filed by the petitioner for setting aside of order dated 25/02/2010 and for restoration of the suit ought to have been considered by the Court below under Order 9 Rule 4 of the CPC, to examine whether sufficient cause was shown by the petitioner. But instead of exercising such power, the Court below proceeded on the basis that considering such cause sought to be shown by the petitioner would amount to sitting in appeal over its own order. In this regard reference was made to judgment of this Court in the case of ICICI Bank Ltd. vs. Vikram Seth (supra) and Order 17 Rule 3 of the CPC. This Court is of the opinion that the facts of the said case are distinguishable from the present case. In any case, even if Order 17 Rule 3 of CPC was to be applied to the facts of the present case, the only option available for the Court below was to have proceeded under Order 17 Rule 3(b) of the CPC, since the petitioner (plaintiff) was absent when order dated 25/02/2010 was passed. Consequently Order 17 Rule 2 of the CPC would come into operation, bringing the Court back to exercise of power under Order 9 of the CPC. This aspect was not appreciated in the correct perspective by the Court below. Similarly, the facts of the case in Judgment of this Court in State Bank of India vs. M/s. Kumar Apparel Industries and others (supra) and The Cotton Corporation of India Ltd. vs. Sree. Shanmugar Mills and anr. (supra) are distinguishable from the facts of this case.

17. The Judgment relied upon by the learned counsel for the petitioner in the case of Raghunath Kishanrao Thigle vs. Zilla Parishad, Osmanabad (supra), appears to be closer on facts to the present case. In the said case also this Court came to the categorical conclusion that the only option available for the Court was to consider a similar situation under Order 9 Rule 3 of the CPC.

18. In view of the above, this Court is of the opinion that the Court below committed an error in passing the impugned order dated 28/06/2013, refusing to consider the application for setting aside order dated 25/02/2010 filed on behalf of the petitioner. The District Court also failed to appreciate the contentions raised on behalf of the petitioner in the correct perspective while passing the impugned order dated 26/04/2016.

19. But at the same time, this Court is of the opinion that the writ petition in the present case cannot be allowed in its entirety. The matter needs to be sent back to the Court below for considering the application filed on behalf of the petitioner at Exh.10 on its own merits. This is because the Court below, as the Court of first instance, ought to consider whether the petitioner was able to show sufficient cause for non-appearance when the order dated 25/02/2010 was passed by the Court below.

20. In view of the above, the writ petition is partly allowed in the following terms :-
(a) The impugned order dated 28/06/2013, passed by the Court below and the judgment and order dated 26/04/2016, passed by the District Court are quashed and set aside.
(b) The matter is remanded back to the Court below to consider the application (Exh.10) afresh, to examine as to whether the petitioner was able to demonstrate sufficient cause while seeking setting aside order dated 25/02/2010 and for restoration of the suit.
(c) Considering the fact that the suit for partition and separate possession has been pending since the year 2004, it would be appropriate that the Court below considers and disposes of application at Exh.10 as expeditiously as possible and in any case within a period of six weeks from today.
(d) The parties shall appear before the Court below i.e. Court of Joint Civil Judge Senior Division, Wardha on 18th February 2020.

21. Rule made absolute in above terms. No order as to costs.

Decision : Petition partly allowed.