Manaklal Bhimraj Mahesri v. Mt. Phulabai

1. This order governs Miscellaneous Appeals No. 165 of 1937 and No. 171 of 1937. The first of these appeals is from an order dismissing a suit. The nature of the order we shall examine later. The second of these appeals is from an order passed on an application to restore the suit. A preliminary objection is taken to the maintainability of the first of these appeals on the ground that the order in question was either under O. 17, Rule 3, or under O. 17, Rule 2 read in with O. 9, R. 8. If the first of the two, then clearly the order amounts to a decree which is appealable and indeed an appeal has been admitted and is pending but is not now before us. If the order was made under O. 17, R. 2 read in with O. 9, P. 8, then it is as though it were an order under O. 9, R. 8 and it is not appealable at all. In our opinion, the order in question was passed under the authority conferred by O. 17 R. 2 read in with O. 9, R. 8, and accordingly no appeal lies. The objection is upheld. But although that be so the second miscellaneous appeal does lie and raises the merits of the case sufficiently.

2. It is next urged that Miscellaneous Appeal No. 171 of 1937 cannot be entertained because the application on which the order was made was untenable. This is founded on the argument that the lower Court in passing its first order was operating under O. 17, R. 3. If that were so, the proceedings ended with a decree dismissing the suit and there could thereafter be no question of applying under O. 9. R. 9 for restoration. As we have already observed the Court operated under O. 17, R. 2 read in with O. 9, R. 8. There is therefore no substance in this objection.

3. That leaves the question whether on an application being made under O. 9, R. 9 read in with O. 17, R. 2, the Court should have restored the suit. The Rule provides that a plaintiff so situate may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit.

4. The learned Judge came to the conclusion that no sufficient cause had been shown. The ground that was taken before him is the same as the ground that has been taken before us. The application was supported by an affidavit to the following effect:

That the plaintiff about a fortnight prior to the date fixed for evidence in the above case got an attack of typhoid and continued to be confined to bed upto 4th March 1937. That on account of the aforesaid illness plaintiff could not attend the Court on 4th March 1937 and was unable to instruct his counsel to examine his witnesses.

5. There is also a doctor's certificate put in to the following effect:

I hereby certify that I have examined Maneklal, son of Bhimraj, at village Karmadi, who is in extremely debilitated condition as a result of continued type of fever for 14 days (probably paratyphoid fever). He is not in a position to attend Court at least for a fortnight.

6. This is a claim which has been launched by the plaintiff in forma pauperis. It is a claim for a very substantial amount, approximately a lakh of rupees. It is a claim that is apparently founded upon the plaintiff's right springing out of adoption and the first question for determination was as to the factum of adoption. We gather this from the order sheets and the nature of the preliminary issue that was settled as long ago as 30th November 1936. That question of fact was going to be the subject of keen contest. The plaintiff alone named no fewer than 70 witnesses. The Court, seeing that it was likely to be a lengthy case, set aside a whole week, 4, 5, 6, 8, 9 and 10th March, for the hearing of these witnesses. On the very day that the first set of witnesses—and each day had its appropriate witnesses allocated to it were to be examined—counsel appeared for the plaintiff and asked for an adjournment, and on that being refused, said he had no instructions whereupon the case was dismissed.

7. It may be laid down as a certain proposition which hardly admits of exceptions that Courts should not lightly dispose of litigation without going into the merits. It is also equally plain that Courts are bound in certain circumstances to dismiss cases for default. One case is that indicated in O. 9, Rule 8. It is true that when a case reaches the stage that this had (that is to say, after the issue stage has in part been passed) the Court is not compelled to exercise its powers under O. 9, Rule 8, but is given power to make another order under O. 17, R. 2, and in any doubtful case the Court should so act.

8. It is however a matter for comment that for some years past in this Province the provisions of O. 17, Rule 1 were almost universally departed from. Those provisions, in our opinion, are extremely salutary. They make for justice, avoid coaching of witnesses, prevent to some extent perjury. Those provisions require that a case, once the witness stage is reached, shall be tried from day to day until it is concluded. If obeyed, long periods do not elapse between the giving of evidence by one side and the giving of evidence by the other or the giving of evidence by one witness and the giving of evidence by another. The strictest instructions have been given to all the Judges in this Province to see that rule is complied with. Inspections are made to see whether those orders are being obeyed and Judges have their confidential files marked if it is found that they are not obeying those instructions. It is a little hard on Judges to require them to comply with a rule of that nature, and then when they set aside a suitable period (as this learned Judge did) for the disposal of a lengthy witness case for day to day trial, to excuse a litigant whose conduct has resulted in the time thus set apart being wasted. In this case the learned Judge took occasion to inspect the Courts over which he has administrative control. Some Judges would not be in a position to so spend their time. Fixing other cases would be quite impracticable bearing in mind the circumstances appertaining in this Province.

9. These considerations, powerful as they are, should not however be allowed to destroy a meritorious case where the bona fides are not in doubt and where a sufficient cause for the failure exists. But here there is no doubt that bona fides are completely lacking. It is said that the plaintiff could not instruct his lawyer because he (the plaintiff) was ill. It is within the experience of every one who has been a lawyer that instructions to lawyers are given long before a case is called on in Court, certainly in a case of this type involving the calling alone by one side of 70 witnesses. Here the critical date was 4th March 1937. The application for leave to sue as a pauper, which embodies the plaint, was filed on 9th November 1935. That plaint which is drafted by a pleader could clearly not have been drafted by him unless he received instructions. A preliminary issue was settled on 30th November 1936 after counsel had made statements in Court. Time for filing lists of witnesses was given on 23rd December 1936. On 2nd January 1937 the plaintiff gave a list of 70 witnesses and those witnesses were allocated their various days. It is, in our opinion, obvious that no counsel could array all his witnesses like that putting this man in the first day, that man in the second day and so on unless he had instructions as to what they would say or the sort of evidence they were going to give on the subject they were going to speak about. The question that was going to be spoken to by these witnesses was the factum of adoption. The date of that event was so far back into the past that the plaintiff who is now 20 was then 4. It is manifest that a child of 4 or a man of 20 speaking with the know-ledge of a child of 4 with the defects of memory stretching over 16 years to over come, would not be in a position to give anybody instructions as to the details of the events that occurred at that date. On the other hand the plaintiff's father who would be a prominent participant in the adoption ceremonies would be more likely to be acquainted with what on that date occurred. The plaintiff's father was in the Court on 4th March 1937. The learned Judge suggested to counsel who appeared and asked for an adjournment that he might take instructions from the father if he, the counsel, was not sufficiently acquainted with the case to be able to call witnesses. After consultation the counsel found the father unable to give him any instructions. Their Lordships of the Privy Council observe in 24 NLR 182 (1928) 15 AIR PC 137 , 109 IC 467 , 55 IA 207 , 55 Cal 821 , 24 NLR 182 (PC) at page 185:

Their Lordships cannot agree with the course taken by the Appellate Court. As found by it, there was no “good cause shown” before the lower Court, and without such “good cause shown” it was therefore bound to pass the judgment it did. The Appellate Court do not say that any such “good cause” was shown even before them, and it is diffcult to understand, therefore, under what powers they claimed to overrule the lower Court.

10. We should be opening ourselves to similar criticizm if we in this case overruled an experienced Judge when he concludes that no good cause was shown for the nonappearance. Not only was it not shown to him, but it has not been shown to us. What has been shown to us is (accepting the medical certificate and the affidavit) that the plaintiff was too ill to attend the Court on that day. We have not been shown that he was unable to instruct anybody to appear for him on that date. Unless the work of Courts is to be reduced to chaos, or alternatively, unless the provisions of O. 17, R. 1, are to be given the go-by, some stop must be put to practices such as these—practices which as a rule have as their motive the unfair conduct of litigation. Whether that is so here or not we are not called upon to decide. All that we have to decide is whether the learned Judge was justified in concluding that sufficient cause had not been shown. In our opinion, the learned Judge was quite right in concluding on the evidence before him and the materials on the record that no sufficient cause for non-appearance was shown. The result is that the appeal fails and is dismissed.

11. The learned District Judge has, we think, perhaps exceeded what was called for in the matter of costs. But in view of the offer of the defendants-respondents to forgo their entire costs of appeal we let that order as to costs stand as being more beneficial to the plaintiff than half costs in both the Courts which we would otherwise have to award to the defendants.

D.S/.R.K

12. Appeal dismissed.