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Suraj Prasad Singh And Another v. Rambaran Singh And Others Opposite Party.
Structured Summary of the Opinion
Factual and Procedural Background
Defendants 2 and 3 (the petitioners) challenged an order of the Munsif, Sitamarhi (Mr. S.K. Basu) dated 6-8-1955 which had allowed the plaintiff's application under Order 9, Rule 4 (O.9 R.4) of the Civil Procedure Code (CPC) and restored the suit to the original file. The suit had been fixed for hearing on 18-7-1955. On that date both plaintiff and defendants applied for time but the applications were rejected and the court directed the parties to get ready at once. Later that day, when the suit was again called, neither party took any steps nor responded to the call; the court recorded that “Neither party takes any steps in spite of the above order. The suit is, therefore, dismissed for non-prosecution”. The plaintiff filed an application on 25-7-1955 purporting to be under O.9 R.4, fixed for disposal on 6-8-1955. At the hearing on 6-8-1955 the petitioners' lawyer appeared and was initially allowed to cross-examine the plaintiff's witness but then said he would seek an adjournment. The trial court treated the plaintiff's restoration application as one under O.9 R.4 (for which no notice is required), discharged the witness, heard plaintiff's evidence and restored the suit. The petitioners challenged that restoration order in this Court.
Legal Issues Presented
- Whether the application for restoration by the plaintiff was correctly considered under Order 9, Rule 4 of the CPC (for which no notice to the opposite party is required), or whether it should have been treated as an application under Order 9, Rule 9 (which requires notice under R.9(2)).
- Whether the suit had been dismissed under Order 9, Rule 3 (neither party appearing) or under Order 9, Rule 8 (defendant appearing but plaintiff absent) when it was dismissed on 18-7-1955 — a question that determines which restoration provision was applicable.
- Whether the physical presence of the defendants in the courtroom, without filing hazri or responding to the court's call, sufficed as an “appearance” under O.9 R.8 such that notice would be required before restoration under R.9.
Arguments of the Parties
Petitioners' Arguments (Defendants 2 and 3 — Mr. Prem Lall)
- The order restoring the suit was without jurisdiction because no notice had been given to the petitioners of the restoration application.
- The lower court treated the application as under O.9 R.4, but it should have been treated as under O.9 R.9; if R.9 applied, R.9(2) required service of notice on the opposite party before an order could be made.
- The petitioners contend they were actually present in court later on 18-7-1955 when the suit was called (even though they did not respond to the call), and had been ready to cross-examine any witnesses; therefore the dismissal should be treated as under R.8 (defendant present, plaintiff absent), making R.9 the proper route for restoration.
- Relied on Bajit Lal v. Rameshwar Singh (AIR 1928 Pat 335) to support the proposition that an application for time by a defendant does not necessarily show absence and that the facts could support a finding of defendant's presence such that R.8 would apply.
Plaintiff / Opposite Party's Position (including Mr. J.C. Sinha's submissions)
- The plaintiff's counter-affidavit states that when the case was called after lunch at about 2 P.M. neither party was present, no steps were taken and no hazri had been filed; the suit was therefore dismissed under O.9 R.3 (neither party appearing).
- The plaintiff maintained that the restoration application was correctly brought under O.9 R.4 (which does not require notice) and that the lower court therefore properly proceeded without serving notice on the defendants.
- Reliance was placed on Abinash Chandra v. Surjya Narayan (ILR (1948) 1 Cal 141) as authority on what constitutes “appearance” under Order 9 R.3 or R.8.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bajit Lal v. Rameshwar Singh, AIR 1928 Pat 335 | Used by petitioners to argue that where a defendant applies for time he may still be regarded as present so that dismissal could be under O.9 R.8 (defendant present, plaintiff absent). | The Court considered the authority but distinguished it on facts: in Bajit Lal the defendant was present when the dismissal occurred, whereas in the present case both parties had been ordered to get ready and later no steps were taken — here the facts were opposite and Bajit Lal did not justify treating the present restoration as one under R.9/R.8. |
| Abinash Chandra v. Surjya Narayan, ILR (1948) 1 Cal 141 | Discusses what constitutes “appearance” for the purposes of O.9 R.3 and R.8; relevant to deciding whether dismissal was under R.3 (neither party present) or R.8 (defendant present). | The Court found this authority to be to the point and relied on its discussion of “appearance” to support the conclusion that mere physical presence without filing hazri or responding to the call does not amount to an “appearance” under R.8; this supported treating the restoration application as properly under R.4. |
Court's Reasoning and Analysis
The Court proceeded through the following analytical steps, applying the text of the provisions and the facts recorded on the lower court's order sheet:
- Fact-finding: On 18-7-1955 both parties had earlier applied for time but those applications were rejected by order No. 39 directing the parties to get ready at once. Later the same day, when the suit was called again, the order-sheet recorded that neither party took any steps; the suit was dismissed for non-prosecution. This factual record supported a dismissal under O.9 R.3 (neither party appearing).
- Legal distinction between rules: The Court identified the relevant distinctions — R.3 contemplates neither party appearing; R.8 contemplates the defendant appearing while the plaintiff does not. A dismissal under R.3 allows the plaintiff to either bring a fresh suit or apply to set aside the dismissal; where dismissal is under R.8 a fresh suit is barred but the plaintiff may apply under that rule to set aside the dismissal.
- Consequences for notice: Rule 4 (O.9 R.4) does not require notice to the opposite party for restoration, whereas O.9 R.9(2) expressly requires that notice of the application be served on the opposite party before an order under that rule can be made.
- Application of facts to law: The petitioners' core contention was that they had been present in court (even if silent) and thus the dismissal should be treated under R.8, making R.9 the applicable restoration provision requiring notice. The Court rejected this contention because the statutory concept of "appearance" when a suit is called for hearing requires some positive act — filing hazri, responding to the call, or otherwise indicating readiness — not mere physical presence or silence. The order-sheet's notation that neither party took any steps supported the conclusion that neither party appeared when the suit was called.
- Policy/Practical consideration: The Court emphasized that it cannot be expected to identify every person in the courtroom and that it is for parties to show readiness (by hazri or response); silence cannot be equated with appearance.
- Precedent analysis: The Court considered Bajit Lal but found it factually distinguishable since in that case the defendant had been present when dismissal occurred; in the present case the facts were opposite. The Court accepted Abinash Chandra as directly on point concerning what constitutes an “appearance”.
- Conclusion of legal analysis: Given the factual finding that neither party appeared when the suit was called, the plaintiff's restoration application was properly under O.9 R.4 (which requires no notice) and not under O.9 R.9. Therefore, the lower court acted within jurisdiction in hearing the R.4 application without notice and in restoring the suit.
Holding and Implications
Holding: The rule (petition) is discharged and the petitioners' challenge to the restoration order fails; the application for restoration was correctly treated under Order 9, Rule 4 of the CPC. The petition is dismissed with costs (hearing fee Rs. 16/- payable to the plaintiff).
Implications:
- Direct effect on the parties: The lower court's order restoring the suit under O.9 R.4 stands; the petitioners' objections that the restoration required notice under O.9 R.9 were rejected.
- Scope as precedent: The decision rests on the factual finding that neither party took steps or responded when the suit was called and on the statutory distinction between “appearance” and mere physical presence. The Court distinguished prior authority (Bajit Lal) on facts and relied on Abinash Chandra for the legal test of “appearance”. The opinion does not purport to establish any broader new legal principle beyond applying these rules to the facts of the case.
Final order recorded in the opinion: "Application dismissed." The judgment records the initials "D.S.P" and specifies the costs noted above.
1. Defendants 2 and 3, who are the defendants second party to the suit, are the petitioners before this Court. They have moved this Court against the order of Mr. S.K Basu, Munsif Sitamarhi, dated 6-8-1955, by which he has allowed the application of the plaintiff-opposite party under O. 9, R. 4 of the CPC, and restored the suit to its original file. In support of the rule Mr. Prem Lall, appearing for the petitioners, contends that the order of the Court below is without jurisdiction because no notice was given to him of the restoration application, and the suit was restored without any notice to him and the Court below wrongly treated the application of the plaintiff under O. 9, R. 4, instead of under O. 9 R. 9 of the CPC.
2. In order to appreciate his point it is necessary to state certain facts. The suit was fixed for 18-7-55 for hearing. On 18-7-55 both parties, namely, the plaintiff and the defendants-petitioners applied for time, but the Court below rejected the applications for time of both the parties, because the suit was an old one, and directed the parties to get ready at once.
3. Later in the day, when the suit was again taken up none of the parties took any steps nor were they present when the suit was called on for hearing, and, therefore, the Court below recorded the following order “Neither party takes any steps in spite of the above order. The suit is, therefore, dismissed for non-prosecution”. The plaintiff thereafter on 25-7-55 made an application, purporting to be under O. 9, R. 4 of the CPC which having been filed within time, was fixed for 6-8-55 for disposal.
4. On 6-8-55 when the Miscellaneous case was taken up for hearing, the lawyer for the petitioners appeared and sought permission of the Court to contest the case by cross-examining the witness of the applicant. This prayer was allowed, and accordingly the plaintiff-opposite party examined a witness, but when the lawyer for the petitioners was asked to cross-examine the witness, he submitted before the Court that he would file a petition for adjournment of the hearing of the case.
5. The Court considered that it was not proper to adjourn the case in the circumstances mentioned above, and also because it thought, the application had been made under O. 9, R. 4 of the CPC and, therefore, no notice was necessary, and accordingly the witness was discharged and thereafter the Court considered the evidence of the plaintiff, and restored the suit.
6. The main contention of Mr. Prem Lall is that the application for restoration, though purporting to have been made by the plaintiff under O. 9, R. 4, of the Code, should be treated as an application under R. 9 of that order, and as such, a notice under R. 9(2) of that order was imperative on the petitioners before allowing the restoration. That raises a question whether the suit had been dismissed under R. 3, or R. 8, of O. 9 of the CPC.
7. The difference is this: Rule 3 contemplates neither party appearing when the suit is called on for hearing; whereas R. 8 contemplates the defendant appearing and the plaintiff not appearing when the suit is called on for hearing. Where the suit is dismissed under R. 3, the plaintiff may either bring a fresh suit, or he may apply for an order to set the dismissal aside.
8. On the other hand, where a suit is dismissed under R. 8, a fresh suit is barred, but the plaintiff is given liberty to apply under that rule to set aside the order of dismissal. Rule 4 does not provide for any notice being given to the opposite party before restoring a suit. But R. 9, cl. (2) clearly provides that no order shall be made under this rule unless notice of the application has been served on the opposite party.
9. If, therefore, the application of the plaintiff be considered to be one under R. 4 of O. 9, as it purported to be, then clearly no notice was required to be served, but if the application is considered to be under R. 9, then a notice was imperative, and in that case, the order passed under R. 9 of O. 9 restoring the suit without any notice to the defendants petitioners would obviously be without jurisdiction.
10. Mr. Prem Lall's contention is that no doubt the applications for time of both the parties were rejected on 18-7-1955, but later on that day when the suit was called on for hearing, his clients were actually present in Court, although they did not respond to the call, nor did they inform the Court that they were present in Court, and, therefore, if the plaintiff had examined any witnesses, they would have been ready to cross-examine him; and, moreover, when their application for time had been rejected, there was nothing more which the defendants were required to do in order to show that they were physically present in Court.
11. The question whether defendants were actually present in Court or not is a disputed question. The plaintiff has filed a counter-affidavit in this Court, and in para 4 of that counter-affidavit he says that when the case was called out after lunch at about 2 P.M the parties were not present, nor had they taken any steps, nor any hazri had been filed on behalf of any of the parties, and as such the Court dismissed the suit under O. 9, R. 3 as neither party had appeared when the suit was called on for hearing.
12. Therefore, the contention of Mr. Prem Lall that his clients were actually present in Court cannot be accepted. Even assuming however, that the defendants petitioners were actually present in Court, the question is whether such appearance would constitute an “appearance” within the meaning of O. 9, R. 8 of the CPC. On the order sheet of the Court below the admitted position is that neither party took any steps before the Court below in spite of the order passed earlier under order No. 39, dated 18-7-1955, that the parties must get ready at once.
13. That clearly shows that neither the plaintiff, nor the defendants petitioners were present in Court, when the suit was called on for hearing. The argument of Mr. Prem Lall obviously overlooks that what R. 3, or R. 8 of O. 9 of the Code requires is appearance of the parties when the suit is called on for hearing and not appearance in the suit itself or even physical presence of a party in the Court room, if he chooses to be silent, and does not respond to the call.
14. The Court is not expected to know every party and to find out for itself which party is present, and which party is not present. It is for the party concerned to file hazri to show his readiness, or respond to the call, or to inform the Court that he is present. If he does not choose to do any of these things he cannot be considered to have appeared when the suit is called on for hearing.
15. A party may be said to have appeared in the suit, if he has filed a plaint, or a written statement, but that does not mean that he will be deemed to have been present when the suit is called on for hearing, if he is not actually present in person, or by a pleader instructed, to answer all material questions about the case as laid down in the Code itself.
16. No doubt the defendants filed a petition for time earlier in the suit before the Court on the day when the suit was taken up for hearing, but the application for time was rejected, and actually when the suit later on was called out for hearing no one responded to the call, and no one took any steps, and as such it cannot be said that the defendants should be regarded as having “appeared” in Court when the case was called on for hearing.
17. In my opinion, therefore, the defendants cannot be said to have appeared within the meaning of R. 8 of O. 9 of the CPC, so as to oblige the plaintiff to make an application for restoration of the suit under R. 9, and not under R. 4, of O. 9 of the CPC. This contention of Mr. Prem Lall must therefore, be rejected. Mr. Prem Lall has placed strong reliance on — ‘Bajit Lal v. Rameshwar Singh’, AIR 1928 Pat 335 (A).
18. He particularly relies on the following passage in the judgment of Macpherson, J. at page 336:
“He contends in the first place that the order of the 5th January dismissing the suit was passed not under O. 9, R. 8 but under O. 9, R. 4. In my opinion there is no foundation at all for this contention. It does not follow because the defendant applied for time that he was not really ready to proceed, and that therefore, he should be held to have been absent.”
19. In this suit, on the date fixed the plaintiff took no steps and the defendant applied for time, but the case was dismissed for default in his presence, and the Court ordered the defendants' petition to remain on the record as no other order thereon was necessary. It would, therefore, appear that when the case was actually dismissed for default, the plaintiff was absent but the defendant was present and he had applied for time.
20. In those circumstances the case was dismissed for default, and his Lordship held that really the application for restoration fell under O. 9, R. 8, and not under O. 9, R. 4 of the CPC. III the present case, the facts are just the opposite. By order No. 39, dated 18-7-1955, the application for time filed by both parties were rejected, and the parties were asked to get ready at once.
21. Later in the day on 18-7-1955, when the suit was again taken up for hearing, neither party took any steps and therefore, the only course open to the Court below was to dismiss the suit for non-prosecution. I cannot, therefore, find any justification for holding that the application of the plaintiff was not an application correctly made under R. 4 of O. 9 of the CPC, since to such a case R. 9 of O. 9 of the CPC, has absolutely no application.
22. The case cited by Mr. J.C Sinha appearing for the plaintiff opposite party of — ‘Abinash Chandra v. Surjya Narayan’, ILR (1948) 1 Cal 141 (B), is to the point, and in that case what constitutes “appearance” within the meaning of O. 9, R. 3, or R. 8, which I have mentioned above has been discussed and considered- In the result, the rule is discharged, and the application is dismissed with costs, hearing fee Rs. 16/- payable to the plaintiff.
D.S.P
23. Application dismissed.
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