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1951 DIGILAW 63 (MP)

Ramswaroop Raghuwardayal v. Mataprasad Prabhudayal

1951-09-24

SHINDE

body1951
ORDER : This is an application in revision by the defendant against the order of the District Judge, Gwalior, dated 20th April 1951, by which he set aside the order of dismissal for default dated 24-2-1951, and restored the suit. The facts of the case briefly are that Ramprasad and others filed a suit against Ram Swaroop and others for partition of joint family property. In that suit on 21-2-1951 the trial Court appointed Mr. Ramratan Gupta guardian-ad-litem for the minors and ordered that for the time being Rs. 500/- be paid to the guardian-ad-litem and that out of the sum Rs. 250/- be paid to the guardian immediately and the balance of Rs. 250/- be paid within a month. The Court also fixed 24-2-1951 for further proceedings. On 24-2-1951, Ramprasad and his Pleaders appeared in Court when the Court opened. As the Court was busy with a criminal case they went away. After some time the plaintiff went to the typist to get his application which he wanted to file in Court. In the meanwhile the case was called and dismissed for default. After the order of dismissal for default was passed the plaintiff came into the Court and having discovered that his suit has been dismissed for default presented an application for restoration. That application was allowed by the Court after giving opportunity to the opposite parties, who were present that day, to cross-examine and to adduce their evidence. 2. The learned counsel for the appellant has raised the following contentions. (1) under Order 9, Rule 9, Sub-rule 2 notice should have been given to all the parties; as it was not done the order of the lower Court is wrong in law; (2) the lower Court has not found that the plaintiff was absent due to sufficient cause, (3) The costs awarded in the suit, whose valuation is 16 lacs, are absurdly disproportionate. The learned counsel for the opposite party has argued, inter alia that 24-2-1951 was not fixed by the lower Court for a hearing and hence the lower Court was wrong in dismissing the suit for default. The order of the lower Court, therefore, should be treated as an order passed under Section 151 of the Civil Procedure Code. I therefore, propose to deal with this point first. 3. The order of the lower Court, therefore, should be treated as an order passed under Section 151 of the Civil Procedure Code. I therefore, propose to deal with this point first. 3. Chitaley in his commentary has stated that the word 'hearing' means the taking of evidence or the hearing of arguments or the consideration of questions relating to the hearing of suit which would enable the judge to finally come to an adjudication upon it and not the consideration of merely interlocutory matters. In 'Lachmi Narain v. Balmukund', AIR (11) 1924 PC 198, their Lordships observe as follows : "In their (Judges of the High Court of Patna) view the 'hearing' mentioned in this rule only occurs when the Judge is taking the evidence or hearing arguments or otherwise coming to the final adjudication of the suit with perhaps one extension to the occasion when issues are to be settled; and was not meant to extend to occasions when interlocutory orders were being sought." "Their Lordships' do not think it necessary to determine whether the word 'hearing' should or should not have this particular limitation; because they think that the decision can be supported on another ground etc......." In this case which was the suit for partition a consent decree had been passed by the High Court. When the suit was remitted to the subordinate Judge for partition by metes and bounds the subordinate Judge fixed a date for hearing the parties and gave notice. On that date the plaintiff aid not appear and hence the suit was dismissed for default. Their Lordships of the Privy Council although did not lay down the limitations of the word 'hearing' held that the case did not come under Order 17, Rule 2 and the order made by the Sub-Judge was without jurisdiction. In 'Manohar Dass v. Birandari Sheikhupurain', AIR (23) 1936 Lah 280, Agha Haidar, J., accepted the exposition of law laid down by their Lordships of the Patna High Court in the case of 'Balmukund v. Lachmi Narain', AIR (7) 1920 Pat 595. In this case 15 January 1935, was fixed for the submission of the Commissioner's report. On that date as the plaintiff was not present the suit was dismissed for default. It was held that the parties had nothing to do with the matter. In this case 15 January 1935, was fixed for the submission of the Commissioner's report. On that date as the plaintiff was not present the suit was dismissed for default. It was held that the parties had nothing to do with the matter. The date on which the Court dismissed the plaintiff's suit was not a date of hearing and hence the order of the Subordinate Judge was without jurisdiction. If we turn to the wording of Order 17, Rule 2 we find that action for non-appearance can be taken only when hearing is adjourned and on the date fixed for hearing the parties or any of them are absent. Under Order 17, Rule 1, the Court has power to grant adjournment if sufficient cause is shown. Reading Rule 1 and Rule 2, together, therefore, it follows that if a party asks for adjournment and time is granted, then on the date of the adjourned hearing if any of the parties is absent action can be taken under Rule 2. But if the case is adjourned not at the instance of the party, Rule 2 will not apply. 4. From the facts of the case given above it is clear that on 21-2-1951 no adjournment was asked for, by any party. Nor was the date 24-2-1951 fixed for doing anything. Rs. 250/- were ordered to be paid immediately to the guardian and Rs. 250/-were to be paid within a month. Therefore, on 24-2-1951 apparently there was nothing to be done in connection with the appointment of the guardian-ad-litem. The only object of adjourning the case to 24-2-1951 could have been to decide as to the future conduct of the suit. This is purely an interlocutory matter. Therefore, the case is not governed by Order 17, Rule 2. No adjournment had been sought, nor was there anything to be done on the appointed date and therefore, it cannot be said that 24-2-1951 was fixed for the hearing of the suit. 5. The learned Counsel for the applicant referred me to 'Ghulam Hyder Khan v. Tekchand', AIR (6) 1919 Sind 89. In that case the plaintiff's Pleader had asked for adjournment to give whereabouts of defendant No. 4 and the case was fixed for hearing on 4-8-1916. On that date neither the plaintiff nor his Pleader appeared in Court. The Court thereupon dismissed the suit for default. In that case the plaintiff's Pleader had asked for adjournment to give whereabouts of defendant No. 4 and the case was fixed for hearing on 4-8-1916. On that date neither the plaintiff nor his Pleader appeared in Court. The Court thereupon dismissed the suit for default. This case is clearly distinguishable from the present case. The plaintiff had definitely asked for adjournment to give the address of the defendant and as on the appointed day the plaintiff did not appear the suit was dismissed for default. In these circumstances it was held that 4th of August was the date to which the hearing of the suit was adjourned and that the case fell under Order 17, Rule 2. This case, therefore, has no application to the present case. As already stated no adjournment was sought nor was any evidence to be taken nor were any arguments to be heard nor any questions relating to the suit which would enable the judge to finally come to an adjudication were to be considered. The only matter that could have been considered on that date was some interlocutory matter, in respect of the future conduct of the suit and hence absence of the parties on that date cannot be governed by Order 17, Rule 2. In my judgment 'Balmukund v. Lachmi Narain', AIR (7) 1920 Pat 595 and 'Manohar Das v. Birandari Sheikhupurain', AIR (23) 1936 Lah 280, are on all fours with this case. Consequently the order of the lower Court dated 24-2-1951 was passed without jurisdiction. 6. The order of the lower Court having been passed without jurisdiction, it is not necessary to. consider other points raised by the applicant. It may be necessary to issue notice to all the parties under Order 9, Rule 9 (2). The lower Court may also have made a mistake in not recording a clear finding as to whether there was sufficient cause for the non-appearance of the plaintiff and costs awarded may also not have been adequate. It is not necessary to exercise the powers under Section 115 of the Civil P. C. in all cases. Revisional powers are intended to be exercised with a view tot subserve and not to defeat the ends of justice : Vide 'Ramzan Ali v. Mt. Satul Bibi', AIR (35) 1948 All 244. It is not necessary to exercise the powers under Section 115 of the Civil P. C. in all cases. Revisional powers are intended to be exercised with a view tot subserve and not to defeat the ends of justice : Vide 'Ramzan Ali v. Mt. Satul Bibi', AIR (35) 1948 All 244. Where substantial justice has been rendered by the order of the lower Court the High Court will not interfere in revision notwithstanding the fact that the reasons for the order are not correct. (Vide 'Yaruddin Sheikh v. B. Das', AIR (33) 1946 Pat 165 and 'Hari Singh v. Narain Das', AIR (32) 1945 Lah 175. The High Court will not take a technical view and unnecessarily interfere in every case whether the order is made irregularly or even improperly unless grave injustice or hardship would result from a failure to do so. (Vide 'Vensimal Tarachand v. Karachi District Board', AIR (35) 1948 Sind 116. As a general rule when justice has been done between the parties the High Court will very rarely interfere with the orders of the lower Courts. Where the interference is likely to work not in the interest of justice but rather against it, the High, Court will not interfere. Vide 'Chanderbhan Singh v. Lallu Singh', AIR (34) 1947 All 343 and 'Rameshwar Lal v. Ramcharan Parshad', AIR (25) 1938 Pat 447. To interfere in this case on the ground that no notice was given to all the defendants or that the lower Court did not specifically find that there was sufficient cause for the non-appearance of the plaintiff would work, not in the interest of justice but against it, consequently in my judgment, it is not a fit case wherein power under Section 115 Civil Procedure Code can be legitimately exercised. 7. Accordingly I dismiss the revision and direct the parties to bear their own costs.