United Commercial Bank v. Jugeshwar — 1987 DIGILAW 47 (PAT)

Judgment A. K. Sinha, J. 1. This Miscellaneous (First Appeal) and the Civil Revision both are directed against the order dated 25-5-1983, passed in Misc. Case No.51 of 1982 by the learned lld Subordinate Judge, Patna, refusing to restore money Suit No.4 of 1981 which was dismissed for default on 27-7-1982. 2. The present miscellaneous appeal and the civil revisional application both are by the plaintiff. 3. The aforesaid Money Suit (4 of 1981) having been dismissed for default on 27-7-1982, the plaintiff/appellant-petitioner, on 7-8-1982, filed an application under Order IX Rule 9 of the Code of Civil Procedure (hereinafter to be referred as the code) read with Sec.151 of the Code. This was registered as Misc. Case No.51 of 1982. 4. The court below, on 25-5-1983 dismissed the miscellaneous case and refused to restore the suit. 5. By way of abundant precaution, as the application by the plaintiff/ appellant was also labelled under Sec.16 of the Code, the present civil revisional application has also been filed. However, the learned counsel for the appellant/petitioner states that he does not press the civil revisional application. Accordingly, the civil revisional application is dismissed as not pressed. It will be petinent to note here that the learned counsel for respondent No.1 conceded that as the impugned order is under Order IX, Rule 9 of the Code the present miscellaneous appeal was very much maintainable. Thus the present miscellaneous appeal is being disposed of as follows: 6. The learned counsel for the appellant submitted that a mere look at the order-sheet maintained in the suit would show that the plaintiff had always been present on all dates prior to 27-7-1982 and had never been negligent/careless ; rather the order sheet in the suit would show that the plaintiff had although been diligent. The learned counsel for the appellant further submitted that the issues having been settled on 20-7-1982, 27 7-19s2 was fixed (by the court) on 20-7-1982 as the very first date of hearing on which the suit was dismissed for default for non-appearance of the plaintiff. The learned counsel submitted that the non-appearance of the plaintiff/appellant on 27--7-1982 the very first date fixed for hearing) was a bona fide one under a mistaken notion that on 20-7-1982 the date fixed for first hearing was 20-8-1982. The learned counsel submitted that the non-appearance of the plaintiff/appellant on 27--7-1982 the very first date fixed for hearing) was a bona fide one under a mistaken notion that on 20-7-1982 the date fixed for first hearing was 20-8-1982. The learned counsel submitted that the plaintiff having been so careful and diligent although right from the filing of the suit up to the date of settlement of issues, there could be no reason for having any latches or negligence or carelessness on the part of the plaintiff to absent himself on the very first day of hearing ; in that view of the matter the learned counsel for the appellant submitted that there being no gross negligence or gross carelessness on the part of the plaintiff, the court below has committed illegality in refusing to restore the suit. The learned counsel for the appellant submitted that a mere perusal of the order-sheet maintained in the suit was enough to show that the plaintiffs failure to appear in the suit on 27-7-1982 (the very first date fixed for hearing) was not due to any desire to cause delay and the non-appearance on one day and on the very first day of hearing was really, on the facts of the present case, a bona fide one. 7. Respondent Nos.1 and 2 have engaged separate counsel and both the learned counsel have addressed the court separately. According to the common submission advanced on behalf of the respondents, the plaintiff having failed to establish sufficiency of cause for non-appearance on 27-7-1982 (the first date fixed for hearing) and the oral e -. idence adduced by the plaintiff, in support of its cause, being insufficient in the eye of law to prove the cause shown by the plaintiff ; the court below very correctly refused to restore the suit. The learned counsel for the respondents submitted that the court below having considered the evidences (oral and documentary) adduced by the plaintiff very carefully and having rejected the plaintiffs case, the finding arrived at by the court below needs no interference by this court. 8. In order to appreciate the respective submissions advanced by the respective learned counsel for the parties, it would be pertinent to state a few facts. 9. 8. In order to appreciate the respective submissions advanced by the respective learned counsel for the parties, it would be pertinent to state a few facts. 9. In 1981 the plaintiff-appellant filed Money Suit (4 of 1981) in the Court of Subordinate Judge (Ilnd Court) at iatna against the opposite parties for realisation of a claim to the extent of Rs.44, 159.34 with interest. Respondent No.2 is the guarantor and Respondent No.1 is the debtor. Respondent No.2 (Defendant No.2) (the guarantor) appeared on 6-4-1981. On 22-6-1981 respondent No.2 (defendant No.2) filed his written statement. Although summons were issued on 6-3-1981 the principal debtor defendant No.1 (respondent No.1) did not enter appearance till before 18-8-1981. On 18-8-1981 the principal debtor/respondent No.1 (defendant No.1) appeared and he filed written statement on 4-2-1982. Thereafter the court fixed 17-3 1982 the date for settlement of issues. However, for one reason or the other the issues were not settled till before 20-7-1982. It would be most pertinent to mention here that on all the dates starting from the filing of the suit the plaintiff although attended the case. However, the issues were settled on 20-7-1982 and it was on this date, i. e. on the date when the issues were, settled, that the court fixed 27-7-1982 as the first date of hearing. This (27-7-1982) was thus the first date of hearing in the suit and the plaintiff did not appear on this date. A persual of the order sheet dated 27-7-1982 shows that though both the defendants had given their haziri yet the principal defendant (defendant No.1) (respondent No 1) did not appear when the case was -alled out and the Money Suit was dismissed for default, 10. Thereafter on 7-8-1982 the plaintiff/appellant filed an application under the provisions of Order IX Rule 9 of the Code read with section 151 of the code and prayed for restoration of the suit on the ground that on 20-7-1982 when the plaintiff attended the case and the issues were settled, he was told by the bench Clerk that the suit was adjourned to 20-8-1982. This information by the peshkar of the court concerned was given to the Manager of the Bank (the plaintiff)of Patilputra Branch who had gone to take steps in the suit and the plaintiff took the information passed on by the Bench Clerk in good faith and took the next date of hearing as 20-8-1982. The ca e pleaded in the application filed under Order IX Rule 9 of the Code was that the learned counsel Shri Ajit Kumar sinha for the plaintiff also assured that the next date fixed in the case was 20-8-1982 and thereafter the learned counsel left for Baidyanath Dham, however, one Shri Ravindra Kumar Sinha (Advocate), friend of the plaintiffs lawyer, by chance happened to go to the court on 27th July, 1982 in connection with his own work and he came to know that the money suit in question was dismissed for non-appearance of the plaintiff. Thereafter the plaintiffs case, as pleaded in the Court below, was that when his learned counsel (Shri Ajit Kumar Sinha)returned from Baidyanath Dham to Patna on 6-8 -1982 his friend Shri Ravindra kumar Sinha (whose name has been mentioned above) came to him and informed him (Shri Ajit Kumar Sinha) about the dismissal of money suit in question for non-appearance of the plaintiff. The plaintiffs counsel, Shri Ajit Kumar Sinha felt surprised as to when the next date for hearing fixed was 20-8-1982 how it could be dismissed on 27-7-1982. 11. To this application filed by the plaintiff under the provisions of Order ix, Rule 9 of the Code the guarantor (defendant No.2) respondent No.2 filed rejoinder However, the principal debtor (defendant No. l)/respondent No.1 did not file any rejoinder. 12. As already mentioned above, the application for restoration of the suit filed by the plaintiff under the provisions of Order XI Rule 9 of the Code read with Sec.151 of the Code was numbered as Misc. Case No.51 of 1982. 13. The plaintiff entered evidence both oral and documentary in support of his case as pleaded in the aforesaid application. The guarantor (defendant no.2)/respondent No.1 also examined himself as opposite party no.1 in order to controvert the plea taken by the plaintiff for restoration of the suit. 14. The court below, on 25-5-1983 dismissed the Misc. Case No.51 of 1982 and refused to restore the suit. Hence the present appeal. 15. The guarantor (defendant no.2)/respondent No.1 also examined himself as opposite party no.1 in order to controvert the plea taken by the plaintiff for restoration of the suit. 14. The court below, on 25-5-1983 dismissed the Misc. Case No.51 of 1982 and refused to restore the suit. Hence the present appeal. 15. 1 have already indicated the respective submissions advanced by the respective learned counsel for the parties in paragraphs 6 and 7. It is well settled that to restore a proceeding dismissed summarily for non-appearance is a matter for the discretion of the court. There is no straight jacket which can cover up all types of cases in this category. The Court below has to exercise his discretion in restoring the suit or refusing to restore, on the particular facts of each case. In all cases in which applications are made to restore the matters summarily dismissed, there is always some degree of carelessness or negligence on the part of the applicant. But if a person whose suit has been dismissed summaiily either appears on the same day or immediately thereafter and produces not some unreasonable excuse for his absence, prima facie the court ought to exercise his discretion in his favour. Of course, the applicant has no absolute right to ask the court to waive its rule in his favour but it is a good working rule that if the plaintiff approaches the court at once or soon after the dismissal of the suit for default, and shows that his failure to appear was not due to a desire to cause delay but was a bona fide one, he ought generally to be given the right. to have the case restored on such conditions as the court may desire. To dismiss a suit for default is really a very serious matter but that course, by the court, ought not to be adopted unless, the court is really satisfied that justice so required. This, it is well settled that the court should refuse to restore the suit only if there is gross negligence or cress carelessness on the part of the plaintiff. 16. This, it is well settled that the court should refuse to restore the suit only if there is gross negligence or cress carelessness on the part of the plaintiff. 16. This being the settled principles of law, the question arises whether in the instant case the plaintiff was really grossly negligent or grossly careless and the other thing to be seen is whether the plaintiff (bank) absented itself with a view to cause delay in disposal of the suit. These are the real aspects to be considered in a case like the present one. 17. The Manager (Manvendra Choudhary) of the bank (the plaintiff)examined himself as A. W.1 and the other witness A. W.2 (Shailendra Kumar)examined is a lawyers clerk.1 he plaintiff (the applicant/appellant) also produced the diary of its learned counsel Shri Ajit Kumar Sinha. The entries in the diary of the plaintiffs learned counsel were marked as Ext.1 and 1 (a ). These were the evidences adduced on behalf of the plaintiff (the applicant) in support of its case. A. W.1 i. e. the manager of the bank (the plaintiff) has stated that he did come to the court on 20-7-1982 and he enquired from the Bench Clerk of the court concerned who informed him that the suit was adjourned to 20-8-1982. It is true that he has not come to say as to who was the Bench Clerk nor could he identify the Bench Clerk who had given the information. According to the evidence of A. W.1 he informed his lawyer about the adjournment of the case on 20-8-1982 and his learned lawyer entered in his diary. According to the evidence of A. W.2 it was he who informed the plaintiffs learned counsel. Though there seems to be little contradiction as to the source of information to the learned counsel i. e. whether A. W.1 informed the counsel or A. W.2 informed the counsel, but the fact remains that the next date fixed for hearing in the suit was 20-8-1982. It is also true that the learned counsel for the plaintiff has not been examined but nonetheless the learned counsel for the planitiff did give his personal diary to show that he was informed about the next date of hearing in the suit and that was 20-8-1982. It is also true that the learned counsel for the plaintiff has not been examined but nonetheless the learned counsel for the planitiff did give his personal diary to show that he was informed about the next date of hearing in the suit and that was 20-8-1982. The litlle contradiction, as just referred to above, in the evidence A. W.1 and A. W.2 is not such which can be termed as after thought and with a view to supporting the case made out in the application. The evidence of these two witnesses have been placed before me for consideration of this court. The minor contradiction, as just mentioned above does not lead to the conculsion that the plea of Bench Clerk informing A. W.1 or A. W.2 about the adjournment of the suit to 20-8-1982 was an after thought. The learned counsel for the respondents has not been able to show me from the order sheet that the plaintiff was ever negligent or careless right from the filing of the suit up to 20-7-1982 when the issues were settled. In fact, respective learned counsel for the respondents have not argued that the plaintiff has ever been negligent or careless prior to 20-7-1982. The learned counsel for the respondents, however, very strenuously urged that the prior conduct of the plaintiff need not be looked into with a view to disposing of the application for restoration of the suit what need to be looked into was insufficiency of cause on the date on which the suit was dismissed for default. It is true that the plaintiff has to satisfy the court about the suffciency of cause for his absence on the date lixed for hearing. However, incidentally with a view to judging the bona fide on the part of the plaintiff the court may look into the earlier conduct of the plaintiff to see whether the plaintiff was grossly negligent or grossly careless ov the absence was only with a view to causing delay in the disposal of the suit. In order to look into this important aspect, while dealing with such an application, the court necessarily will look to the order sheets as to whether the plaintiff has been grossly negligent/careless in the suit. In order to look into this important aspect, while dealing with such an application, the court necessarily will look to the order sheets as to whether the plaintiff has been grossly negligent/careless in the suit. I have already held above hat the plaintiff throughout has been diligent and careful and alert in pursuing the suit right from the beginning up to 20-7-82 when the issues were settled. 18. At the cost of repetition, the two witnesses examined on behalf of the plaintiff (bank) do not contradict each other to the extent that the plea taken by the plaintiff for its absence on the date concerned goes unproved unsupported. The finding about the plaintiffs plea to the effect that the information about the adjournment of the suit to 20-8-1992 was given by the Bench Clerk was an after thought arrived at by the court below is based on reasons which, in my opinion, are most illogical and unsound in law. 19. The plaintiff has also produced documentary evidence. The diary of the learned counsel for the plaintilf has been produced. The entries have been marked as Ext.1 and 1 (a), Ext 1 is an entry on 20-7-1982 and Ext.1 (a) is an entry on 20-8-1982 with regard to the present suit. It is true that the learned counsel for the plaintiff has not been examined but nonetheless diary of the learned counsel for the plaintiff was produced by the plaintiff in support if its case. A perusal of the impugned order shows that these entries i. e. Ext.1 and Ext 1 (a)in the diary of the learned counsel for the plaintiff have not been disbelieved and there could also be no reason to disbelieve the diary of a learned counsel regularly maintained in the course of his profession and more so, the diary of the learned counsel attending the cas. The respective learned counsel for the respondents have not argued that the learned counsel for the plaintiff wrongly entered the date of the adjournment of the suit in his diary and was falsely supporting the plaintiff. The learned counsel for the respondents could not argue as such because even in the rejoinder filed in the court below such a case has not been pleaded on behalf respondent No.2 (the guarantor) who filed the rejoinder in the court below. The learned counsel for the respondents could not argue as such because even in the rejoinder filed in the court below such a case has not been pleaded on behalf respondent No.2 (the guarantor) who filed the rejoinder in the court below. Thus there is no reason for disbelieving the entries in the diary of the learned counsel for the plaintiff which were duly made by the learned counsel in the diary regularly maintained in the course of his profession. 20. For the aforesaid reasons, for the respective learned counsel to argue that the story of the Bench Clerk telling the adjournment of the suit to 20-8-1982 was far from truth, has no substance. 21. The respective learned counsel for the respondents on the other hand submitted that the two witnesses examined on behalf of the plaintiff do not support the plaintiffs case as they have contradicted to such an extent that sufficiency of cause for non-appearance on 27-7-1982 is not proved. I am afraid there is no substance in this submission advanced on behalf of the respondents. I have already given my reasons in the aforesaid paragraphs. The learned counsel for the respondents have further submitted that the learned counsel for the plaintiff having not come to depose about the entries made by him in his diary, the entries cannot be looked into. Such an argument is fallacious and wrong in law. The entries in the diary have been regularly proved by the witnesses and hence the entries having been duly proved in law, the entries can be looked into in the eye of law. Only because the learned couasel has not come to depose, it cannot be said that the learned counsel made wrong entries in his diary. The learned counsel for the respondents then relied upon two cases in order to persuade this court to hold that this court on the facts of the present case, need not interfere with the impugned order under appeal The learned counsel relied upon the case of Mohammad Jahoor Mian v, Mosstt, Khatun and others, 1967 bljr 960. I do not understand how reliance has been placed upon this case by the learned counsel for the respondents. The point to be decided in that case was whether the date fixed for settlement of issues was also a date of hearing of the suit. I do not understand how reliance has been placed upon this case by the learned counsel for the respondents. The point to be decided in that case was whether the date fixed for settlement of issues was also a date of hearing of the suit. Thus it was absolutely a different point in that case. Secondly this decision was in a civil revisional application and, on the facts of that case, this court interfered with the order under revision in that case. The facts of that case are clearly distinguishable from the facts of the present case and hence, I hold that this decision cuts no ice for the respondents. 22. The learned counsel for the respondents then relied upon the case of phani Bhusan Mukherjee V/s. Phcni Bhusan Mukherjee, AIR 1957 Cal 170 . This decision again was a decision in a civil revisional case. The point to decided in that case was as to when would the provision under Order XVII Rule 2 of the Code of Civil Procedure apply and when Order JX Rule 3 of the Code of civil Procedure would apply. On the very facts of that case the question for consideration was altogether different. The other question to be decided in that case was still different than the one involved in the instant case. Thus it would appear that the question for consideration by this court in that case was absolutely different than that of the present case.1 feel once again surprised as to how the learned counsel for the respondents has placed reliance upon the ratio decided in that case on facts of the present case. I hold that the reliance placed by the learned counsel for the respondents upon the case of Mohammad Jahoor Main V/s. Mosstt. Khatun and others (supra)and Phani Bhusan Mukherjee V/s. Phani Bhusan Mukherjee (supra) is on miscon-ception. 23. For the reasons aforesaid, I hold that the plaintiff made out sufficient cause for its non-appearance on 27-7-1982. I further hold that the plaintiff has not been grossly negligent or grossly careless. I further hold that the non-appearance of the plaintiff on 27-7-1982 (i. e. the only non-appearance on this date) was not with a view to causing delay in the disposal of the suit. I further hold that the plaintiff has not been grossly negligent or grossly careless. I further hold that the non-appearance of the plaintiff on 27-7-1982 (i. e. the only non-appearance on this date) was not with a view to causing delay in the disposal of the suit. For the reasons mentioned above, I further hold that the absence of the plaintiff on the date in question i. e.27-7-1982 was a bona fide one and the story set up by the plaintiff to the ellect that the information about the adjournment of the suit to 20-8-1982 was given by the Bench Clerk of the Court concerned was not an after thought. 24. In the result, this appeal is allowed. The order of the learned court below dated 25-5-1983 (passed in Misc. Case No.51 of 1982) is hereby set aside and the suit is restored to its original file. The court will proceed with the suit now in its usual course and in accordance with law. Before parting with the judgment I must make it clear that this order is subject to the deposit of Rs.250/- in the court below within one month from today failing which this appeal shall stand dismissed automatically without further reference to the Bench. It is also made clear that once the money, as ordered by this court, is deposited it will be open to defendant No.2 respondent no.2 (Ashwini Kumar) (the guarantor) to withdraw that amount without furnishing any security to the court. I would have thought of allowing defendant No.1 (Jugeshwar Nath) to withdraw this amount and not defendant no.2 but as defendant no.1 was not present at the time when the suit was called out for hearing on 27-7-1982, he is not entitled to that amount. Let the lower court records be sent down to the court below at once without any further delay. (Lines of this judgment have been underlined by me for emphasis.)Appeal allowed.