1962 (2) TMI 127 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the Civil Judge erred in dismissing the suit for non-appearance of the plaintiff.
2. Whether the plaintiff was negligent in prosecuting the suit.
3. Whether the order of dismissal falls under Order 17, Rule 3 or Order 9, Rule 8 of the Civil Procedure Code (CPC).
4. Whether sufficient cause was shown for the plaintiff's non-appearance on the adjourned date.
5. Whether the plaintiff's counsel's withdrawal amounted to a fraud on the provisions of law.

Detailed Analysis:

1. Whether the Civil Judge erred in dismissing the suit for non-appearance of the plaintiff:
The appeal was directed against the order of the IInd Civil Judge, Kanpur, dated 28-5-57, refusing to restore the suit dismissed for non-appearance of the plaintiff. The plaintiff had filed a suit for recovery of Rs. 4,11,367/14/9 against the defendants. The suit was dismissed on 24-5-56 due to the absence of the plaintiff's counsel, who stated he had no instructions to press the adjournment application. The Civil Judge rejected the application for restoration, holding that the plaintiff had not been prosecuting the suit diligently.

2. Whether the plaintiff was negligent in prosecuting the suit:
The plaintiff argued that the Civil Judge erred in holding that the plaintiff was negligent. The plaintiff's affidavit stated that the senior counsel had gone to England, making it difficult to prosecute the case. The defendants did not file any counter-affidavit challenging the plaintiff's allegations. The court below was in error in holding that the plaintiff was negligent or that his representative acted mala fide.

3. Whether the order of dismissal falls under Order 17, Rule 3 or Order 9, Rule 8 of the CPC:
The defendants contended that the dismissal should be regarded as under Order 17, Rule 3, CPC, as the plaintiff's counsel was present on 24-5-56. However, the court found that Rule 3 applies when time is granted to a party to perform an act necessary for the suit's progress, and the party defaults. In this case, the plaintiff had not applied for time to produce evidence but for an adjournment due to the absence of senior counsel. Therefore, the dismissal order fell under Order 9, Rule 8 CPC, as it was due to the plaintiff's absence.

4. Whether sufficient cause was shown for the plaintiff's non-appearance on the adjourned date:
The plaintiff's affidavit stated that he left the court to fetch witnesses, and by the time he returned, the suit had been dismissed. The defendants did not counter this affidavit. The court cited the Supreme Court's decision in Mehta Parikh and Co. v. Commr. of Income Tax, Bombay, emphasizing that unchallenged affidavits should be taken at face value. The plaintiff's explanation for his absence remained unrebutted, and it could not be said that he was not acting honestly or was uninterested in prosecuting the case.

5. Whether the plaintiff's counsel's withdrawal amounted to a fraud on the provisions of law:
The defendants argued that the plaintiff's counsel's withdrawal was a device to circumvent the law. However, the court noted that the defendants did not allege misconduct in their reply to the restoration application. The court held that the counsel's statement of having no instructions meant he ceased to represent the plaintiff, and it was irrelevant whether his conduct was motivated by extraneous considerations.

Conclusion:
The appeal was allowed, and the order refusing to restore the suit was vacated. The suit was restored on the condition that the plaintiff pays Rs. 250/- to the defendants within one month. The court emphasized the need for expeditious disposal of the case, which had been pending since 1953. The parties were directed to bear their own costs of the appeal.