Raj Rani Srivastava v. District Judge Lucknow — 1996 DIGILAW 726 (ALL)

Judgment : BRIJESH Kumar, J. 1. This writ petition has been filed impugning the order passed by the learned District Judge, allowing the revision preferred by the opposite parties Nos. 2 to 4, setting aside the order passed by the trial court by which the Trial court had allowed the application of the petitioner/plaintiff under Order IX Rule 9 CPC and restoring the suit to its original number. 2. I have heard learned counsel for the petitioner and the learned counsel appearing for opposite parties Nos. 2 to 4. The facts in brief, to appreciate the point involved in proper background, are that the petitioner/plaintiff filed a suit for arrears of rent, damages and ejectment of opposite parties Nos. 2 and 3 from the premises A-91 Mahanagar (546/68) P. S. Mahanagar, Lucknow. The case was registered as Regular Suit No. 73 of 1969. The controversy, which seems to have arisen between the parties, was about the time of construction of the house. According to plaintiff, it was constructed after 1950, therefore, U. P. Temporary (Control of Rent and Eviction) Act, 1947, did not apply. In the alternative it was pleaded that even if the provisions of the said Act apply, the defendants/opposite parties were liable to be ejected under Clauses (a), (b) and (c) of sub section (1) of Section 5 of the Act and also for the reason that their tenancy was terminated under Section 106 of the Transfer of Property Act. The defendants, however, contested the suit and came out with the defence that the house was a pre-1950 construction, hence governed by the Old Act, namely, 1947 Act. The suit was however, decreed by Judgment and order dated 9-10-71 holding that it was post 1950 construction, hence it was not governed by Old Act No. III of 1947. An appeal filed by the defendants/opposite parties was dismissed. A second appeal was preferred before this Court, namely, Second Appeal No. 46 of 1973 which was allowed by judgment and order dated 21-2-75. It was found that since the construction was post 1950 and the Old Act 1947 was not applicable, hence the ejectment could not be ordered under clauses (b) and (c) of Section 5 (1) of the Act No. III of 1947. It was found that since the construction was post 1950 and the Old Act 1947 was not applicable, hence the ejectment could not be ordered under clauses (b) and (c) of Section 5 (1) of the Act No. III of 1947. Since, however, in the mean time Act 13 of 1972 had been enforced, it was provided that the plaintiff cold amend her pleadings in accordance with the provisions contained under Section 12 of 1972 Act, namely, U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It was also provided that the trial court could frame proper issues and decide the matter accordingly. The suit was thus remanded to the trial court. 3. THE petitioner moved application for amendment of the plaint which was al lowed by order dated 25- 2-77. THE petitioner was required to deposit an additional court fee of Rs. 997. 70 P. which, ac cording to the petitioner, was also paid on 15-4-77. So far payment of costs is concerned the plaintiffs case is that it was also paid but no receipt was obtained, hence the same was not filed in the Court, however, it was reported by the office that the court fee was filed but costs were not paid. THE case was ordered to be put up on 7-5-1977. On 15-7-77, the plaintiff was required to show cause as to why suit be ordered not to proceed for non payment of costs for amendment of the plaint. THE case was ultimately fixed for 23-9-77 for arguments on the point of payment of costs in context with Section 35-B of the Code of Civil Procedure. Since the counsel for the plaintiff was not present at the time the case was called, it was dismissed with costs. 4. THE plaintiff moved an application under Order 9 Rule 9 of the Code of Civil Procedure for setting aside order dated 23-9-77 dismissing the suit. THE application was, however, contested on the ground that the application under Order 9 Rule 9 of the Code of Civil Procedure was not maintainable since the suit was dismissed on 23-9-77 not because of non appearance of the plaintiff but for non payment of costs imposed on the plaintiff while allowing amendment of the plaint. THE application was, however, contested on the ground that the application under Order 9 Rule 9 of the Code of Civil Procedure was not maintainable since the suit was dismissed on 23-9-77 not because of non appearance of the plaintiff but for non payment of costs imposed on the plaintiff while allowing amendment of the plaint. THE Civil Judge, Lucknow, however, by order dated 5-1-81, allowed the application moved by the petitioner under Order IX Rule 9 of the Code of Civil Procedure holding that the suit would be taken to have been dismissed in default of the plaintiff. THE defendants/opposite parties, however, challenged the order passed by the Civil Judge by filing a revision which was allowed by Opposite Party No. 1, namely, the learned District Judge by order dated 5-8-1982 holding that order dated 23-9-77 could not be said to have been passed under Order IX Rule 8 of the Code of Civil Procedure, hence the application under Order IX Rule 9 of the Code of Civil Procedure was not maintainable. A copy of the order passed by the learned District Judge has been filed as Annexure-9 to the writ petition. THE controversy, thus, involved in the present petition is as to whether the order dated 23-9-77 was an order dismissing the suit in default passed under Order Ix Rule 8 of the Code of Civil Procedure or it was an order passed under Section 35-B of the Code of Civil Procedure dismissing the suit for non compliance with the order of payment of costs to the defendants on account of amendment of pleadings by the plaintiff. Before proceeding with the merits of the matter it would be appropriate to have the orders passed by the trial court dismissing the suit as well as the relevant provisions of the Code of Civil Procedure. A true copy of the order dated 23-9-77 has been filed as Annexure-3 to the writ petition. It reads as follows: "case called out, the defendants appeared, plaintiff did not appear. The plaintiff was allowed to amend plaint on payment of certain costs. But he did hot pay off such cost and inspite of this fact, amended the plaint. Then he was required to show cause as to why he be not forbided from prosecuting the plaint. But the plaintiff neither paid of the cost nor filed any explanation as required by notice. But he did hot pay off such cost and inspite of this fact, amended the plaint. Then he was required to show cause as to why he be not forbided from prosecuting the plaint. But the plaintiff neither paid of the cost nor filed any explanation as required by notice. Therefore, the plaintiff is prevented for prosecuting the plaint. Under the amended C. P. C. and in the result the suit is dismissed with cost. " Annexure 4 is extract of order sheet containing the orders passed by the trial court between 12-2-77 to 19-8-77. The relevant orders are quoted below: Order dated 25-2-77 70-A. by the plaintiff for amendment in the plaint. Pressed for cost by the defendant. The application is allowed. Let the amendment be done within 15 days. But the application is so allowed only on payment of Rs. 12 as cost. Munsarim will now report by 11-3-77 after the plaint is amended. Order dated 15-7-77 S. S. More for the defendant. None appeared for the plaintiff. Put upon 19-8-1977 for orders. The plaintiff shall show on the said date as to why he be not ordered to "not press" the suit, in default of payment of cost under the amended Court Fee Act. Order dated 19-8-77 73-D by plaintiff for adjournment on the ground that he is busy in the Hon'ble High Court in a part heard case. Allowed. Fixed 23-9-77, argument on the point as given in Sec. 35-B of the CPC". 5. THE trial court, as indicated above, allowed the application by order dated 5-1-81, a copy of which has been filed as An-nexure-7 to the writ petition holding that the order was passed due to non appearance of the plaintiff though the matter was listed for hearing on the point of Section 35-B of the Code of Civil Procedure. It was further found that the plaintiff explained the circumstances under which she failed to put in appearance of the date fixed. 6. THE revision, as indicated above, preferred by the defendants/opposite par ties was allowed by the learned District Judge. A copy of the order has been filed as Annexure-9 to the writ petition. It was further found that the plaintiff explained the circumstances under which she failed to put in appearance of the date fixed. 6. THE revision, as indicated above, preferred by the defendants/opposite par ties was allowed by the learned District Judge. A copy of the order has been filed as Annexure-9 to the writ petition. THE learned District Judge held that in the absence of plaintiff it is not necessary that the court must proceed to pass an order under Order IX CPC but has jurisdiction to pass such other order as it thinks fit. After refer ring two decisions relied upon by the defendants/respondents in support of the contention that order XVII Rule 2 CPC would apply, the learned revisional court recorded a finding as under: "it cannot be doubted, therefore, that when the plaintiff is absent at the time when the case is called, the court is not bound to act under Order 9 CPC and if in that situation, relying upon the provisions of Section 35-B of the CPC, the court prevents the plaintiff from prosecuting the suit further and, in consequence thereof, dismiss the suit, it cannot be said to have acted under the provisions of Order 9 CPC and must be held to have acted in manner otherwise. " The revisional Court, however, further observed that it could be contended that order of dismissal could be passed under Section 151 CPC to prevent the abuse of process of Court as the plaintiff had amended the plaint without complying with the condition of making the payment of the costs imposed. The relevant discussion is quoted as below: "it is a different matter that the validity of this order itself may be open to question in the sense that Section 35-B, CPC c;. y prevents the plaintiff from prosecuting the suit. In other words, it could also contemplate a position where the suit could continue to stay on the file of the Court without making any progress therein. Reference may be made to the provision of Order IX Rule 2 CPC where there is a specific provision that if summons has not been served upon the defendant in consequence of the plaintiffs' failure to pay the Court fee or postal charges, chargeable for such service, or to present copies of the plaint etc., the court may make an order that the suit be dismissed. There is no such corresponding provision in Section 35-B CPC. On the other hand, it may be contended that Section 151 of the CPC is wide enough to entitle the Court to order dismissal of the suit in order to prevent abuse of the process of the Court. After all, a party, which has obtained the benefit of an order of amendment on terms, does not abide by the terms, and the provisions of Section 35-B are treated to be mandatory, as heard by the Full Bench of the Punjab and Haryana High Court, the Court would well proceed to exercise its discretion to dismiss the suit for reasons of the abuse of the process of the Court. I need not say anything further in this regard because that is not the question involved in the present Revision. " 7. FROM the findings of the revisional court quoted above, it is evident that different reasonings were exempted and it was found that (i) it was discretionary to proceed or not under Order IX CPC in case of absence of plaintiff on an adjourned date, it was, therefore, not necessary to pass an order, under Order IX Rule 8 CPC (ii) that Order XVII Rule 2 CPC would be applicable or an order of dismissal would be covered under "any other order as court may deem fit to pass, (iii) it was open to argue that the order of dismissal of the suit on failure to show cause preventing the plain tiff to prosecute the suit under Section 35-B CPC an order dismissing the suit could be passed under Section 151 CPC to check the abuse of process of the Court but this question was not involved in this case. 11. It is to be noticed that the revisional court has not recorded any finding that the impugned order was not passed under Order IX Rule 8 CPC, it has only been observed that it was non mandatory to proceed under Order IX and without resorting to the provisions as contained under Order IX, the trial court could pass an order dismissing the suit under the other provisions of the Code of Civil Procedure. It, however, seems difficult to uphold the reasoning which has been adopted by the learned District Judge. It will be appropriate to quote certain provisions. It, however, seems difficult to uphold the reasoning which has been adopted by the learned District Judge. It will be appropriate to quote certain provisions. Section 35-B of the Code of Civil Procedure reads as follows: *s. 35b-Costs for causing delay - (1) if, on any date fixed for the hearing of a suit or for taking any step therein, a party, to the suit- (a) fails to take the step which he was required by or under this Code to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of- (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs; (b) the defence by the defendant, where the defendant was ordered to pay such costs. Explanation - Where separate defence have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs. (2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons. " 12. Order IX Rule 8 reads as follows: *r-8. " 12. Order IX Rule 8 reads as follows: *r-8. Procedure where defendant only appears.- Where the defendants appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it related to the remainder. 13. Order IX Rule 9 reads as follows: *r-9. Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under Rule VIII, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he 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, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. " 14. Order XVII Rule 2 reads as follows: *r-2. Procedure if ponies fail to appear on day fixed.-Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. " 15. Order XVII Rule 3 CPC reads as follows: *r. 3. Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2. " 16. " 16. According to the revisional court itself, the order of dismissal of the suit was not attributable to Section 35-B of the Code of Civil Procedure. So far question of passing the order of dismissal of suit on the ground of abuse of process of court under Section 151 CPC is concerned, the revisional court has rightly observed that this question is not involved in the present case. The learned counsel for the opposite party, however, made a submission that the order passed by the trial court dismissing the suit was on the ground of abuse of process of court. Firstly, I find that there is no such finding of any court nor I find any substance in the argument made on behalf of opposite party. The question of abuse of process of court depends upon facts and circumstances of the case. The fact cannot be lost sight of that the plaintiff/petitioner had fought first round of litigation up to this Court in Second Appeal, when the matter was remanded to the trial court. The plain tiff, after remand, moved application for amendment of the plaint and carried out the same and had also paid substantial amount of court fee. Only a sum of Rs. 121 on account of costs is said to have not been paid by the plaintiff. It cannot be said that it would in any manner serve the cause or purpose of the plaintiff to prolong the proceedings, rather, it would go against plaintiff's interest, hence, the argument advanced on behalf of the opposite party does not appeal to reason. 17. The revisional court is, however, of the view that the order of dismissal of suit could be passed under Order XVII Rule 2 of the Code of Civil Procedure where it provides that on failure of parties to appear in court on the date fixed, the court would dispose of the suit in one of the modes directed by Order or make such other order as it thinks fit (emphasis is laid by Court ). The whole question then for consideration would be as to whether an order of dismissal of the suit could be passed by the court in absence of the plaintiff, where the court has not chosen to proceed to dispose of the suit in one of the modes directed under Order 9 of the Code of Civil Procedure. The whole question then for consideration would be as to whether an order of dismissal of the suit could be passed by the court in absence of the plaintiff, where the court has not chosen to proceed to dispose of the suit in one of the modes directed under Order 9 of the Code of Civil Procedure. It is difficult to accept the findings of the revisional court that order of dismissal of the suit in absence of the plaintiff would be covered under Order XVII Rule 2 unless order of dismissal of the suit is passed in one of the modes provided under Order IX of the Code of Civil Procedure. In case, option to proceed under Order IX of the Code of Civil Procedure is not exercised, which provides for dismissal of the suit, it will not be possible for the Court to pass the order of dismissal of the suit under Order XVII Rule 2 under the clause" or make such other order as it thinks fit". The other order as the court may deem fit to pass, can only be an order Other than that of dismissal of the suit. Scope of the phrase 'such other order as it thinks fit' is limited. It does not vest any extra power in the court to dismiss the suit in absence of party where that option is very much provided under Order IX of the Code of Civil Procedure. Therefore, it is only reasonable to infer that any order other than dismissal of the suit could be passed as the Court would think fit to pass. Therefore, it is only reasonable to infer that any order other than dismissal of the suit could be passed as the Court would think fit to pass. As a matter of fact, if two provisions, namely, the Order IX Rule 8 CPC is read with Order XVII Rule 2 CPC it is to be found out Rule 2 is only supplemental to the provisions contained under Order IX of the Code of Civil Procedure, in the sense that Order IX CPC leaves no option for the Court but to dismiss the suit in absence of the plaintiff unless defendant admits the claim or a part thereof in which eventuality the Court may pass a decree against the defendant on his admission, barring which, that suit is to be dismissed in default of the plaintiff for appearance before the Court on the date fixed, but in appropriate cases, by virtue of last clause of Rule 2 of Order XVII CPC, it will be open to the Court to adjourn the case to some other date even though the plaintiff may be absent and such an order of adjournment would be governed by the last clause of making such other order as the court would think fit. 18. In one of the decisions of this Court reported in AIR 1957 Alld. 344, Msr. Jaggo v. Kanhaiya Lal (DB), scope of the phrase ". . . . . . or make such other order as it thinks fit" in Order XVII Rule 2 CPC was considered and it was held that it does not empower the court to decide the case on merit in absence of parties. The court could proceed to decide the suit on merit only in case a part of the evidence of the defendants had been recorded not otherwise. Such an order passed was held to be not referable to the clause "or make such other order as it thinks fit" under Order XVII Rule 2 CPC. Considering the relevant facts and the provisions it was held that the order amounted to an ex pane order and an application under Order IX Rule 13 was maintainable for setting aside such an order. 19. Considering the relevant facts and the provisions it was held that the order amounted to an ex pane order and an application under Order IX Rule 13 was maintainable for setting aside such an order. 19. In one of the cases reported in AIR 1977 MP 222 Rama Rao and others v. Shantibai and others (FB), the scope of expression 'such other order as it thinks fit' as used under Order XVII Rule 2 CPC was considered and it was held by the majority judgment that it empowers the Court to dispose of the suit in a mode other than that provided under Order IX. Such other order, permitted by Rule 2 ought to be of the kind not expressly specified, e. g. an order of ad journment. FROM the above observations it would be clear that an order of dismissal of the suit could not be passed under the last clause of Rule 2, since an order of dismissal of suit for non-appearance of plaintiff is provided for under Order IX CPC. Order of dismissal of suit, therefore, could not be attributable to any other provisions except under Order 9 CPC. Under the last clause of Order XVII Rule 2 CPC the power is to pass any other order meaning thereby an order other than that of dismissal of the suit. 20. It is contended by the opposite parties that a perusal of the order passed by the trial court dismissing the suit in absence of the plaintiff shows that the suit was not dismissed for the reason of absence of the plaintiff but for non-payment of costs under Section 35-B of the Code of Civil Procedure. It has already been discussed in the earlier part of the judgment that order of dismissal cannot be attributed to Section 35-B of the Code of Civil Procedure. It could also not be passed, as dismissed in the preceding para graph, taking shelter of the last clause of Rule 2 of Order XVII of the Code of Civil Procedure" or to make such other order as the Court deems fit". It could also not be passed, as dismissed in the preceding para graph, taking shelter of the last clause of Rule 2 of Order XVII of the Code of Civil Procedure" or to make such other order as the Court deems fit". A suit can be disposed of on merits in absence of parties only when the evidence of Part of it has been recorded but that is not the case here nor the point of abuse of process of Court so as to result in dismissal of the suit under Order 151 CPC is involved as rightly held by the revisional Court. In substance, the factual position that emerges is that the order of dismissal had been passed after noting the absence of the plaintiff Such an order could only be passed under Order IX Rule 8 CPC which alone would be applicable. 21. The substance of the whole order has to be seen and construed according to the facts and circumstances of the case, form of the order can always not be decisive. In this connection attention of the Court has rightly been drawn to a Full Bench decision of this Court reported in AIR 1970 Allahabad 257. Seth Munna Lai v. Seth Jai Prakash. It was held ". . . . . . . . . . it is permissible to entertain an application for restoration under Order IX even when the Court purports to act under Order XVII, Rule 3 it the circumstances set out by the Court are such that an order under Order IX read with Order XVII, R. 2 would be legally justified and the actual order passed is one which could be legally passed under Order IX read with Order XVII, R. 2 CPC. " 22. The above proposition squarely applies to the present case. The order of dismissal of the suit could be passed only under Order IX Rule 8 CPC. Such an order, as discussed and held above, could not be passed under the last clause of Order 17 Rule 2 CPC. Therefore, an application under Order IX Rule 9 CPC would be entertainable. In the case of Seth Munna Lal (supra) the Court had taken into account equitable consideration also as to be found discussed in paragraph 6 of the judgment. Those circumstances too apply in the present case as well. Therefore, an application under Order IX Rule 9 CPC would be entertainable. In the case of Seth Munna Lal (supra) the Court had taken into account equitable consideration also as to be found discussed in paragraph 6 of the judgment. Those circumstances too apply in the present case as well. The fact, which cannot be lost sight of, is that the plain tiff/petitioner has been prosecuting the suit upto this Court in Second Appeal, in the first round and after remand had amended the plaint and consequently deposited a substantial amount of additional court fee but has been thereafter non-suited in absence for non-payment of Rs. 12 as costs for amendment. The absence of the plaintiff was found duly explained by the trial court. The untenable objection taken by the defendant/opposite party about maintainability of application under Order IX Rule 9 CPC took all this lime unnecessarily. 23. For all the reasons indicated above, the revisional court erred in interfering with the order passed by the trial court allowing the application of the plaintiff/petitioner moved under Order 9 Rule 9 CPC and holding that such an application was not maintainable. 24. In the result, the petition is allowed with costs and the order passed by the revisional court dated 5- 8-1982, a copy of which has been filed as Annexure 9 to the writ petition, is set aside and the order of the Civil Judge allowing the application under Order IX Rule 9 CPC, a copy of which has been filed as Annexure-7 to the writ petition, is restored. Petition allowed.