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Motichand v. Ant Ram, -Non
Factual and Procedural Background
This revision petition challenges the order dated 18-10-1951 of the District Judge, which dismissed the applicants' Miscellaneous Appeal No. 25 of 1951. The appeal was against the order dated 14-7-1951 of the Subordinate Judge, Bareli, rejecting the plaintiff's application for restoration of Suit No. 134 of 1951. The suit had been dismissed for default on 17-3-1951 after the plaintiff and his pleader failed to appear on the adjourned hearing date. The plaintiff's pleader later filed an application for restoration, citing illness and lack of intimation as grounds for non-appearance. The defendant opposed the restoration, arguing that the pleader's illness was not a sufficient reason and that the plaintiff was negligent. Both the Subordinate Judge and the District Judge rejected the restoration application and appeal respectively, leading to the present revision petition.
Legal Issues Presented
- Whether the plaintiff had sufficient cause for non-appearance on the date of hearing, justifying restoration of the suit dismissed for default.
- Whether the decisions of the Subordinate Judge and District Judge in rejecting the restoration application were legally sound and exercised judicial discretion properly.
- The applicability and interpretation of the precedent set in U Aung Gyi v. Government of Burma, AIR 1940 Rang 162, in the facts of the present case.
Arguments of the Parties
Applicant-Plaintiff's Arguments
- The plaintiff had no intimation of the date of hearing on 17-3-1951.
- The plaintiff's pleader became seriously ill and was unable to attend the hearing or inform the plaintiff.
- These circumstances constituted sufficient cause for the non-appearance and justified restoration of the suit.
Defendant's Arguments
- The pleader's illness was not a sufficient ground for non-appearance, as the plaintiff could have engaged another counsel.
- Lack of intimation to the plaintiff was insufficient to excuse absence.
- The plaintiff was grossly negligent in conducting the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| U Aung Gyi v. Government of Burma, AIR 1940 Rang 162 | Delay or non-appearance of pleader, even by a few minutes, is not sufficient ground for restoration of suit. | The court distinguished the facts of the present case from this precedent, noting that unlike in U Aung Gyi, the pleader here was suddenly ill and unable to attend or arrange representation, thus rendering the precedent inapplicable. |
Court's Reasoning and Analysis
The court carefully examined the facts and found no denial of the plaintiff's pleader's illness or the lack of intimation to the plaintiff. The defendant only challenged the sufficiency of these grounds, not their truth. The court emphasized that "sufficient cause" is not defined by statute and depends on the circumstances of each case. It adopted a generous approach favoring restoration unless there is evidence of misconduct or gross negligence. The court found that the plaintiff had done his best by engaging a pleader who regularly appeared until the sudden illness. The illness prevented intimation and attendance, which was a sufficient cause for non-appearance. The precedent in U Aung Gyi was found distinguishable on facts, as in that case the pleader was nearby and could have arranged representation, unlike here. The court concluded that the lower courts failed to exercise proper judicial discretion and made an incorrect decision, warranting interference by revision.
Holding and Implications
The revision petition is allowed.
The orders of both the Subordinate Judge and the District Judge rejecting the application for restoration of the suit are set aside. The suit is restored to file and remanded to the trial court to proceed according to law from the stage reached on 17-3-1951. Costs are awarded against the non-applicant, who shall bear his own costs, with counsel's costs fixed at Rs. 15 for each party in this Court. The parties are ordered to appear in the trial court on 12th May 1952. No new precedent was established; the decision directly affects the parties by restoring the suit and correcting the procedural error of dismissal for default.
Judgement
- This is a revision petition against the order dated 18-10-1951 of the District Judge dismissing the applicants Misc. Appeal No. 25 of 1951 against the order dated 14-7-1951 of the Subordinate Judge, Bareli, rejecting his application for restoration of suit No. 134 of 1951, dismissed for default on 17-3-1951.
2. The applicant-plaintiffs suit was pending in the Court of the Subordinate Judge, Bareli for framing issues, on 3-3-1951 but was adjourned to 17-3-1951 as the Judge was on leave. He generally appeared in the suit through a pleader but, on the latter date, neither the pleader nor the plaintiff was present and the suit was dismissed with costs in default of the plaintiff. It is not clear from the order-sheet if the defendant or his pleader was present on that date.
3. The plaintiffs pleader, on 27-3-1951 filed an application for restoration of the suit to file in which it was stated that the plaintiff had no intimation of the date of the hearing and the pleader had become very ill and had gone to Bhopal from where he could not return owing to his illness and therefore the suit be restored. The defendant, who was noticed, stated that the illness of the Vakil was not a sufficient ground for plaintiffs non-appearance as he could have instructed another counsel to put in appearance on his behalf. It was also said that absence of intimation of the date of hearing to the plaintiff was also not a sufficient ground for his non-appearance. It was said that the plaintiff was grossly negligent in the conduct of the suit. The learned Sub-Judge found as a fact that the plaintiffs pleader was taken suddenly ill and had left and could not appear because of his illness. It was also held that the plaintiff could not be given intimation of the date of the hearing on that account, but the learned Sub-Judge found himself bound by the decision in U Aung Gyi v. Government of Burma, AIR 1940 Rang 162, in which the pleaders delay in appearing in the suit even by five minutes was held to be not a sufficient ground. The learned District Judge found fault with the affidavit which was filed by the pleader late during the proceedings of restoration and in a vague order indicated that he was not satisfied with the facts themselves and dismissed the appeal. The plaintiff now comes up in revision.
4. In my opinion, the learned District Judge has not properly applied his mind to the facts of the case and has avoided examining the law on the point. In such matters, the contentions of the parties have to be closely examined. The facts alleged in the application were not denied by the defendant-non-applicant in his written statement, he having confined himself only to the sufficiency or otherwise of the ground for non-appearance admitting that the facts stated were correct and true. The learned District Judge had, therefore, not a difficult task in accepting the facts, as stated by the plaintiff, as correct.
5. The only point for determination, therefore, is whether there was a sufficient ground for the non-appearance of the plaintiff on the date of hearing of 17-3-51. Inspite of instructions to the contrary the Subordinate Judge has left the matter of writing the order-sheets to his clerk. This is highly improper, as has been pointed out to him time over again. It may be pointed out that the term "Sufficient cause" has not been defined anywhere and sufficiency of the cause or the ground depends upon the circumstances of each case and no hard and fast rule can be laid down in that matter. A generous construction has to be placed on the enactment to restore a suit dismissed in default and a party should not be deprived of a hearing unless there is an indication of misconduct or gross negligence on his part, the main question to be examined being only whether he intended to be present at the hearing of the suit and did his best to do so.
6. Examining the record in that light, there is no denying of the fact that the plaintiff was throughout appearing through his pleader, Shri Narbada Charan Lal. There is no denying of the fact that Shri Lal was taken suddenly ill after the hearing of 3rd March 1951 and left for treatment and could not return by the date of hearing on 17th March 1951. There is an affidavit by him that on that account he could not give any intimation to the plaintiff of the date of hearing. In the circumstances, the allegation, that the plaintiff had no intimation of the date of the hearing, could not be refuted in the absence of any evidence to the contrary. That being so, in my opinion, there was sufficient ground for the non-appearance of the plaintiff on 17-3-51 when the case came to be called. He had done his best by engaging a pleader who in his turn was appearing at every hearing and had it not been for the sudden illness of the pleader it may be presumed that the suit would not have come to grief in the manner it did on 17-3-51. No blemish, therefore, could be attached to the pleader, much less to the plaintiff and as such in my opinion, there was clearly a sufficient cause as required for restoration of the suit.
7. In the case reported in AIR 1940 Rang 162, the pleader for the plaintiff was present at the very place in the next adjoining room and it was not said that he had not been able to hear the call. The pleader also knew that he was likely to be engaged in another Court and therefore, it was held that it was his duty to get himself represented in the Court concerned. The facts, as I said, are entirely different and are distinguishable from the facts in the case on hand and applying the principle, as already pointed out, that sufficiency of ground depends upon the merits of each case, it is not difficult to observe that the decision in U Aung Gyi v. Govt. of Burma, AIR 1940 Rang 162 could not be applied.
8. In the circumstances, it is obvious that both the Courts below failed to exercise their discretion in a judicial manner and also decided the case with material irregularity and arrived at an incorrect decision. The revision petition is, therefore, allowed with costs against the non-applicant who shall bear his own costs. The orders of both the Courts below, rejecting the application for restoration of the suit, are set aside and the suit is restored to file and is sent back to the trial Court for proceeding with it according to law from the stage reached on 17-3-1951. Counsels costs in this Court will be Rs. 15 only for each party. The parties are ordered to appear in the trial Court on 12th May 1952.
Revision allowed.
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