Mathai v. Rosamma Mathew — 1992 DIGILAW 308 (KER)

ORDER K.S. Paripoornan, J. 1. The first counter petitioner in I. A. No. 4541 of 1989 (first defendant in O. S. No. 258 of 1984), Principal Sub Court, Kottayam, is the revision petitioner. The petitioner and the second counter petitioner in the court below (plaintiff and the second defendant in the suit) are the respondents herein. The first respondent herein (the plaintiff in the suit) filed a petition for restoration of the suit dismissed for default, to file. The court below allowed the same, by order dated 5-12-1990. The first defendant has come up in revision, against the afore - said order passed by the court below. 2. I heard counsel for the revision petitioner, Mr. K. C. John, as also counsel for the first respondent, Mr. Roy Chacko. 3. The revision petitioner and the first respondent are the husband and wife. There seems to be some difference of opinion between them. The suit was filed as early as in 1984. The suit was filed and conducted in the lower court by the plaintiff through a power of attorney holder. The revision petitioner herein (first defendant) filed I. A. No. 2215 of 1P85 for directing the plaintiff to appear in person in the court. The court below allowed the said application, on 30-8-1986. This is an order rendered under O.3 R.1 of the Code of Civil Procedure. The case was posted to 4-1-1988. On that day, neither the plaintiff nor her power of attorney holder was present. The suit was dismissed. The power of attorney holder filed an application for restoration of the suit. The court below noticed that the power of attorney holder was present at the time of roll call and the same presiding officer, who dismissed the suit, allowed the application for restoration. The revision petitioner herein filed C. R. P. No. 528 of 1989 in this Court. This Court noticed the fact that the suit was dismissed holding that the plaintiff and her power of attorney holder were absent; since it was proved that the power of attorney holder was present, it was held that the restoration ordered by the court below does not merit interference in revision by this Court under S.115 of the Code of Civil Procedure. 4. 4. In C. R. P. No. 528 of 1989, the order passed by the court below in I. A. No. 2215 of 1985 dated 30-8-1986 as one passed under Order III R.1 C. P. C was adverted to. This Court further noticed that the defendant has a plea that the power of attorney itself is spurious and not genuine. This Court observed that it is a question that has to be decided in the suit itself since this is one of the issues raised in the suit. The restoration of the suit to file on the ground that the power of attorney holder was present when the suit was called on for hearing on 4-1-1988 and the assumption that the plaintiff and the power of attorney holder were absent being a mistake, (the restoration of the suit was found not to merit interference in revision. This Court directed the suit itself to be disposed of by giving top priority. 5. The suit was included in the special list for trial on 4-12-1989. The power of attorney holder was present on that day in court. The plaintiff was absent. The court below held that the plaintiff has not complied with the order passed in I A. No. 2215 of 1985 dated 30-8-1986 directing the plaintiff to appear in person. There was non compliance of the order issued under Order III R.1 C.P. C. So, the suit was dismissed for non compliance of the said order, on 4-12-1989. The power of attorney holder filed I. A. No. 4541 of 1989 to restore the suit to file. The plea was that the dismissal of the suit is against the directions of this Court in C.R.P. No. 528 of 1989 and that the plaintiff is not bound" to appear in court. 6. The court below considered the matter in detail, by order dated 5-12-1990, and took the view that the order passed by this Court in C.R.P. No. 528 of 1989 impliedly dispensed with the personal appearance of the plaintiff, as ordered in I. A. No. 2215 of 1985. It was held that in view of the order of this Court in C. R. P. No, 528 of 1989, there is no justification for insisting on the personal appearance of the plaintiff. The court below held that there are sufficient grounds to restore the suit to file. It was held that in view of the order of this Court in C. R. P. No, 528 of 1989, there is no justification for insisting on the personal appearance of the plaintiff. The court below held that there are sufficient grounds to restore the suit to file. It is this order which is assailed in this revision filed by the first defendant in the suit. 7. Counsel for the revision petitioner, Mr. K. C. John, argued that the court below was in error in restoring the suit to file. Counsel referred to the provisions of Order III R.1 read with Order IX R.12, Order IX R.8 and Order IX R.9 C P. C and contended that in the absence of a clear or specific finding that there is 'sufficient cause' for non appearance of the plaintiff when the suit was called on for hearing, the court below has no jurisdiction to restore the suit to file. It was contended that there is no such finding in the order passed by the principal Sub Judge, Kottayam dated 5-12-1990. It was further argued that the lower court wrongly assumed that the personal appearance of the plaintiff was dispensed with, either expressly or impliedly, by this Court in C. R. P. No. 528 of 1989 Counsel stated that it is based on this fundamental mistake or error, the court below restored the suit to file Counsel went to the extent of suggesting that its a case where the plaintiff deliberately refused to comply with an order passed by a court and yet sought the aid or assistance of the court or wanted to prosecute the suit, the court below was competent to strike off the suit from the file, on that sole ground. It was argued that a party, who fails to comply with the order of the court, cannot seek its aid or assistance to prosecute the suit. On the other hand, Mr. Roy Chacko, counsel for the first respondent, submitted that it is implicit in the order passed by this Court in C. R. P No. 528 of 1989 that the appearance of the plaintiff in court was dispensed with, It is the order passed in I. A. No. 2215 of 1985, which was made a ground to dismiss the suit on the earlier occasion, but it was subsequently restored on the application of the power of attorney holder. This Court declined to interfere with the order of restoration in C. R. P. No. 528 of 1989. So, the non appearance of the plaintiff did not weigh with this Court in affirming the decision in restoring the suit to file, when the power of attorney holder filed an application for restoration of the suit. It was contended that this Court having directed the suit to be disposed of, it impliedly held that non appearance of the plaintiff is of no consequence. Mr. Roy Chacko, counsel for the first respondent, also submitted that even if there is any literal non compliance of the order passed in I. A. No. 2215 of 1985, that should not entail the extreme penalty of the suit being struck off from the file. 8. On hearing the rival pleas urged before me, I am of the view that the court below has not considered the real question that arose for consideration in a legal manner. In restoring the suit dismissed for default on 4-12-1989, the question that arose before the court was whether there was 'sufficient causa' for the non appearance of the plaintiff when the suit was called on for hearing. There should be a specific finding that there was sufficient cause for the non appearances when the suit was called on for hearing before the application restoring the suit to file is ordered. There is no such finding in the order passed by the learned Subordinate Judge dated 5-12-1990. Such a finding is a prerequisite in order to cloth the court with jurisdiction to restore the suit to file. In the absence of such a finding, the order passed by the court below is beset with a jurisdictional error or illegality. I hold so. The decision in Union of India v. M/s. Rama Engineering Works (Motihari) Ltd. (AIR 1974 Patna 288) cited by counsel for the revision petitioner supports the above conclusion. 9. On an earlier occasion, on 4-1-1988, the suit happened to be dismissed for non appearance of the plaintiff and her power of attorney holder. The power of attorney holder filed an application to restore the suit to file, stating that he was present at the time of roll call. The court below accepted that plea. The same presiding officer, who dismissed the suit, allowed that application. The power of attorney holder filed an application to restore the suit to file, stating that he was present at the time of roll call. The court below accepted that plea. The same presiding officer, who dismissed the suit, allowed that application. This order was assailed by the first defendant in C. R. P. No. 528 of 1989. This Court declined to interfere. It is evident that at that time, the suit happened to be dismissed on the ground that neither the plaintiff nor the power of attorney holder was present in court. But it was found that the power of attorney holder was present. He filed the application for restoration and proved that he was present in court at the time of roll call. The Court was satisfied that there was sufficient cause for restoration of the suit and the suit was restored to file. In C. R. P. No. 528 of 1989, there was no occasion to adjudicate the question as to whether non compliance of the direction of the court below in I. A. No. 2215 of 1985 asking the plaintiff to appear was the reason for the dismissal of the suit. The validity of the said order was not in question in C. R. P. No. 528 of 1989. This Court held that the order passed in I. A. No. 2215 of 1985 dated 30-8-1986 was under O.3 R.1 C. P. C and non compliance of such an order will cloth the court with jurisdiction under Order IX R.12, to dismiss the suit. There was no express or implied consideration about the legality or validity of the order passed by the court below in I. A, No. 2215 of 1985 dated 30-8-1986. 10. In this background, I hold that the court below was in error in holding that the personal appearance of the plaintiff in court was dispensed with impliedly by the directions in C.R.P No. 528 1989. In that revision petition, the legality or validity of the order passed In I. A. No. 2215 of 1985 dated 30-8-1986 did not arise for consideration. The validity of the said order was not germane to the question involved at that time. It was not adjudicated. In that revision petition, the legality or validity of the order passed In I. A. No. 2215 of 1985 dated 30-8-1986 did not arise for consideration. The validity of the said order was not germane to the question involved at that time. It was not adjudicated. In this perspective, I hold that the court below has proceeded on a wrong assumption that the non appearance of the plaintiff in court was dispensed with impliedly by the order passed in C. R. P No. 528 of 1989. It is on this wrong assumption, the court below further held that there is no justification for insisting for the personal appearance of the plaintiff and since that formed the basis for the dismissal of the suit on 4-12-1989, there is sufficient ground to restore the suit to file. I am of the view that the court below totally misconstrued and misunderstood the scope of the order passed by this Court in C. R. P. No. 528 of 1989. 11. It is agreed that the order passed in I. A No. 2215 of 1985 dated 30-8-1986 has not so far been set aside or nullified. It remains in force. Is the said order a meaningless one or ineffective one? Is a court helpless is that, it cannot give effect to an order passed by it? The answer is obvious. The court below was entitled to give effect to the order passed by it. In giving effect to the order, the court proceeds to decide the suit itself under O.3 R.1 C. P C. read with O.9 R.12 and O.9 R.8 and R.9 C. P. C. The suit itself can be disposed of on that basis. This Court only required the court below to dispose of the suit, in C. R. P. No. 528 of 1989. Those aspects have not been properly understood by the court below. I am of the view that the court below failed to consider the petition for restoration of the suit to file from a proper perspective or angle. The matter requires a reappraisal. The Court below totally misunderstood the scope of the order in C. R. P. No. 528 of 1989. It should be understood in its background and setting. It assumed that this Court dispensed with the appearance of the plaintiff. It is not so. 12. The matter requires a reappraisal. The Court below totally misunderstood the scope of the order in C. R. P. No. 528 of 1989. It should be understood in its background and setting. It assumed that this Court dispensed with the appearance of the plaintiff. It is not so. 12. In the light of the above, I hold that the order passed in I. A. No. 4541 of 1989 dated 5-12-1990 is tainted with jurisdictional error or illegality. The court below has exercised the jurisdiction illegally and with material irregularity. It has resulted in failure of justice. If the suit was rightly dismissed on 4-12-89, that vests the first respondent with a right which cannot be deprived except by process known to law and in the manner provided by law. In so far as the dismissal of the suit on 4-12-1989 has been set aside and the suit has been restored on untenable or mistaken basis, I set aside the order passed by the court below in I. A. No. 4541 of 1989 dated 5-12-1990. The matter is remitted to the court below for a fresh consideration, in accordance with law. I. A No. 4541 of 1989 is directed to be posted in the court below, for appearance of parties on 4-9-1992. It will be posted for fresh consideration. The revision is disposed of accordingly.