1. This is an application on behalf of the defendant for setting aside a decree which I made in this suit on 9th July last. The circumstances under which the decree was made are set out in the judgment 1 delivered on that day.
2. The facts which are not in dispute may be shortly stated as follows: The defendant had engaged 2 Counsel, Mr. R. Chaudhuri and Gouri Mitter, for the conduct of his defence. In the morning there was some talk between Counsel for the parties for an adjournment of the suit. The plaintiffs Counsel had asked the defendant's Counsel to consent to an adjournment on the ground that plaintiff's attorney was lying ill. The defendant's Counsel said that personally he had no objection but that his attorney should have to be approached in the matter. It seems therefore that there was some sort of arrangement in the morning that an adjournment of the suit should be asked for.
3. Immediately before this suit there was a pretty big suit on my list, Nandlall Kasera v. Joydoyal Kasera, which was likely to go on for two or three days. The question for determination in that suit was whether there was legal necessity to support a mortgage of an immoveable property. The case was opened by Mr. A.N Roy, Counsel. The Senior Counsel was the Advocate-General. I put to Mr. Roy as to what the necessity was and how it had been pleaded in the plaint. The Advocate-General said that on that point they were not ready and submitted that they would be obliged if the suit was adjourned for a few days.
4. When Counsel for any party says to me that he is not ready and asks for an adjournment, on that ground I generally grant an adjournment. The reason is this. We have on the Original Side nowadays five or six Courts sitting and there are a very few Counsel who can really conduct difficult contested suits. Sometimes owing to pressure of work it so happens that Counsel cannot get ready for all the suits they have in different Courts on the day's list. Therefore when Counsel in any case asks for an adjournment on the ground that he could not get ready, I generally grant adjournment. In this suit the point was rather difficult, namely, whether there was legal necessity or not and the facts were rather complicated as I could see from the opening of Mr. Roy. I therefore adjourned that suit.
5. This suit was then called on. The plaintiff's Counsel Mr. Sankar Banerjee asked for adjournment on the ground of his attorney's illness. This attorney had been lying ill for some time and the suit had been on my list for days. I did not see any reason why arrangement could not be made for the conduct of the suit, because the plaintiff knew that his attorney had been lying ill for sometime and this attorney has several competent assistants in his office. I refused the adjournment.
6. The suit then went on. The plaintiff's Counsel opened the case and evidence was called on. All the time the defendant was present in my Court. But his Counsel was not present. After the case had been opened and the plaintiff had called his first witness the defendant left my Court saying that he was going to fetch his Counsel. I have been told by Mr. Chaudhuri that the defendant saw him and told him as to what was happening in my Court and Mr. Chaudhuri assured the defendant that he would be coining soon. On that assurance the defendant came back to my Court and said to me that his Counsel would soon be in my Court. In other words he agreed that the suit might go on Mr. Chaudhuri came in, but after 2 or 3 minutes he went out again.
7. The defendant was present in Court. But neither of his Counsel was present. The evidence was heard and the decree was made against the defendant. This is an application for setting aside that decree passed in the circumstances slated above. It is contended on behalf of the petitioner that the decree was made ex parte and should be set aside as the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing. I cannot set aside the decree unless the petitioner proves there is a “sufficient cause”.
8. Mr. Chaudhuri has made a statement from the Bar to the effect that he came into my Court ready to go on with the suit. He further said while he was waiting in my Court a clerk came from the Court of Base, J., where Mr. Chaudhuri had a part-heard matter and the clerk said to Mr. Chaudhuri that his Lordship would take up the matter immediately. So Mr. Chaudhuri had to leave my Court. He went to the Court of Bose, J.; and told that learned Judge that a suit was going on before me arid asked that the part-heard matter before Bose, J., might be passed over. The learned Judge refused to grant the prayer and said to Mr. Chaudhuri that he would bear the matter as it had been specially fixed for hearing on that day. So, Mr. Chaudhuri could not come to my Court. Gouri Mitter, the Junior Counsel of the defendant, was actually addressing P.B Mukharji, J.
9. Mr. Sankar Banerjee in his usual fairness said that he would not contradict any statement made by Mr. Chaudhuri from the Bar and he was prepared to, go on with this application on the basis of the statement made by Mr. Chaudhuri.
10. The question is: Is there a “sufficient cause”? Mr. I.P Mukherjee on hehalf of the petitioner has referred me to two cases of this Court.; In Sikandar Ali v. Kushal Chandra Sarma (1) (I.L.R 59 Cal. 756), a Division Bench of this Court held that the presence of the plaintiff in Court with witnesses who did not take part in the suit, but to whom the Judge put questions as to the bona fides of his application after rejection of an application by his pleader for adjournment and his retirement, was not an ‘appearance’ within the meaning of the Civil Procedure Code and when the suit was dismissed for default under such circumstances the dismissal was one under Order IX, rule 8 of the Civil Procedure Code entitling the plaintiff to apply for restoration of the suit under Order IX, rule 9 of the Code. This judgment was followed by Sir Manmatha Nath Mukherji, J., sitting singly in Sardar-mal v. Jaharmal (2) (I.L.R 59 Cal. 906). In that case his Lordship held that the word ‘appear’ in rule 8 of Order IX of the Code of Civil Procedure—apparently meant appearing in the suit. A party might be present in the precincts of the Court or he might be found present in the Court-room, but if he did not take part in the suit, it could not be said that he had appeared.
11. In those two cases the High Court had to deal with decisions of the Moffusil Court. But the case before me concerns a decree of the Original Side. There is difference in procedure in the matter of appearance between the Moffusil Court and the Original Side. But in my view that difference does not make any difference in the principle to be applied to an applica tion like the one before me.
12. In a Full Bench case of this Court, Shaikh Abed Ali… v. Prafulla Kumar Sen Gupta…. (3) (56 C.W.N 97), the question arose as to whether the provision of Order IX, rule 13 of the Code of Civil Procedure applied to applications made on the Original Side to set aside ex parte decrees and, it was held that it did. The leading judgment was delivered by Harries, C.J I was a party to the decision. In my judgment at page 105, I said: “I cannot see any difference between a Mofussil Court and the Original Side of the High Court in the matter when the defendant is prevented by sufficient cause from appearing when the suit is called on for hearing. It is quite true that as to entering of appearance there is difference in the procedure between the Original Side and the Moffusil Court. In the Original Side appearance is entered under rules which are to be found in Chapter VIII of our Rules (see rule 15, etc.). If appearance is not entered the suit is placed on the undefended list. Where a suit is heard ex parte against any defendant such defendant may be allowed to cross-examine in person the plaintiff's witnesses and to address the Court, but unless the Court otherwise specially orders the evidence is not received on his behalf nor is he allowed the assistance of an advocate or attorney. There is difference in procedure in this between the Original Side and the Moffusil Court………………. It may be that this difference may enlarge or restrict the meaning of the expression ‘sufficient cause’ in Order IX, rule 13. But that does not make any difference in the matter of ‘appearance’ when the suit is called for hearing”. I adhere to the view.
13. In that case, I observed that the difference in procedure between the Original Side and the Moffusil Court may enlarge or restrict the meaning of the expression ‘sufficient cause’ in Order IX, rule 13. On the Original Side except under a very restricted condition a party is not entitled to appear. Furthermore in this case the defendant assured the Court that his Counsel would be coming. He could not have given the assurance to the Court unless he in his turn had been assured by his Counsel Mr. Chaudhuri that he would be coming. The statement made by Mr. Chaudhuri has been accepted by Mr. Sankar Banerjee who opposes the application. I do not ascribe any negligence to Mr. Chaudhuri himself, because if a learned Judge asks for his attendance in his Court although he states that he has to attend another Court the Counsel has no option but to stay there. The Junior Counsel Mr. G. Mitter was also actually addressing another Court at the time in question. So, neither of the defendant's Counsel could be present in my Court, when the suit was being heard.
14. Mr. I.P Mukherjee has referred me to the case of Abdullabhai Ebrahimji v. Ishabhoi Najmuddin (4) [A.I.R (1932) Bom. 634]. There also the defendants were present in Court, when their case was called. But neither of the two Counsel the defendants had engaged could be present, being then engaged in other Courts. A decree was passed against the defendants. On an application for setting aside the decree Mr. Justice Blackwell held that there was not a sufficient cause within the meaning of Order 9, rule 13, but he could interfere under section 151 of the Code of Civil Procedure. I regret, having regard to our Full Bench decision, I cannot take the view that the Court can interfere under section 151. It is no good blinking the real issue. Either there is a sufficient cause or there is not. If there is not a sufficient cause the Court cannot interfere. If there is, the Court need not resort to section 151. In the case of K.B Dutt v. Shamsuddin Shah Shaheb (5) (34 C.W.N 419), which was cited in the Full Bench case, Rankin, C.J, observed:
“I entirely dissent from the view that if no case is made out under that rule (Order 9, rule 13), it is open to the learned Judge to enlarge the rule by talking about section 151”.
15. With that observation, I humbly and respectfully agree and I cannot take the view Blackwell, J., expressed in the Bombay case that the Court can interfere under section 351.
16. A Division Bench of the Madras High Court in Arunachela Ayyar v. C. Subbar-miah (6) (I.L.R, 46 Mad. 60), has held that where an application is made by a defendant to set aside an ex parte decree passed against him the question to be considered by the Court is not whether by human possibility-being wise after the event he could not have got in time to the place where the Court is held, but whether he honestly intended to be in Court and did his best though in his own stupid way to get there in time and if the Court is satisfied that the man did try to get there and that he would have got there, but for the intervention of an inevitable accident for which he was in no way responsible it is the duty of the Court to set aside the decree mulcting in proper cases the delinquent in costs. A litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part or something which cannot be set right by his being ordered to pay costs.
17. The principle laid down by the Madras High Court is consistent with justice and the laws of all civilised countries. A man cannot be expected to do more than what he can do.
18. In this case it is impossible to say that the defendant is at fault or is guilty of misconduct or negligence. He had engaged two Counsel, one of whom was ready to go on with the case. But Counsel could not attend owing to circumstances beyond his control. The defendant cannot be expected to conduct his defence in a case like this. Nor is it possible within so short a time to engage another Counsel, who would be able to go on with the case.
19. What is a ‘sufficient cause’ must depend on the circumstances of each case. No hard and fast rule can be laid down. The Court has to weigh and appreciate the facts of the case properly and decide it on principles laid down by the authorities. No instrument has yet been invented where-by the circumstances can be weighed and of rigid formula laid down as to when a ‘sufficient cause’ is made out and when it is not. A slight difference in the facts may make a world of difference in the case. For example, in this case, if it had been found that one of the Counsel was free and could go on with the suit, e.g, if he were in the Bar Library reading books or engaged in some other works then, with all the other facts, it would not have been possible for me to hold that there was a sufficient cause. I do not for a moment say or suggest in this judgment that in every case the absence of a Counsel when a matter is called constitutes a sufficient cause. It is far from my mind to lay down a proposition so broad as this. What I do say is that in this case there was an element of inevitability which the defendant in my view could not overcome.
20. On consideration of the facts, I hold that in this case there was a sufficient cause which prevented the defendant from appearing at the hearing.
21. If I set aside the decree not much injustice is done to the plaintiff. The suit would be heard again within a few weeks. On the other hand if I do not set aside the decree, I might be doing injustice to the defendant and he would go away from this Court with the feeling that justice had not been done to him. Yet, in spite of this consideration, I would hold that the Court would have no jurisdiction to set aside the decree if the defendant does not come-within the provision of Or. 9, rule 13.
22. On the facts of the case, I hold that the petitioner has made out a sufficient cause within the meaning of Order 9, rule 13.
23. I, therefore, set aside the decree. But as the plaintiff was not at fault, I direct the defendant to deposit Rs. 1,000 with the attorney of the plaintiff by 10th September next to be held by him free from lien subject to further orders of the Court. The defendant must, in; any event, pay costs of the day when the decree was passed and the costs of this application. Such costs would be taxed, and paid out of the said sum of Rs. 1,000. If the taxed costs exceed the amount the defendant would have to pay the balance. If on the other hand the sum of Rs. 1,000 exceeds the taxed costs the excess would be refunded to the defendant. If the amount is not deposited within the time specified this application will stand dismissed with costs.
24. As after the vacation, I shall not be able to hear this suit, I direct that the suit be not treated as part-heard by me and the parties would be at liberty to mention the suit after the long vacation to some other Judge, who will try the suit as if it had never been heard by me.
Solicitors: N.C Bural and Pyne for the Applicants; M.G Poddar for the Respondents.
P.S