Plantation Corporation of Kerala Ltd. v. Hussain — 1998 DIGILAW 183 (KER)

Judgment :- K.S. Radhakrishnan, J. The above mentioned Civil Revision Petition, Appeals and Civil Miscellaneous Cases are filed by the Plantation Corporation of Kerala Ltd. a Government of Kerala undertaking, who is the plaintiff in all the suits. 2. Plaintiff-corporation had entered into various agreements with respondents-defendants for the purpose of cutting and removing of rubber trees from their plantation. According to the plaintiff, defendants committed breach of the agreements and consequently they filed three suits, O.S. No. 73,74 and 75 of 1991 before the Munsiff s Court, Perambra and five suits, O.S. Nos. 47,51,52,45 and 50 of 1991 before the Sub Court, Quilandy. Three suits which were filed before the Munsiff s Court, Perambra were subsequently transferred to Sub Court, Quilandy and renumbered as O.S. Nos. 41,42 and 43 of 1995, and ordered to be jointly tried along with O.S. No. 50 of 1991 and other connected cases by order in LA, No. 1352 of 1992. 3. In all the suits, defendants filed their written statements and also raised counter claim against the plaintiff. Plaintiff filed a list of witnesses to be examined on 7.11,1992. One of the witnesses to be examined on the side of the plaintiff was one L. Krishnan Poti, a former Manager of the Perambra Estate during the relevant period. Learned Sub Judge on 30.5.1995 ordered the suits to be listed for evidence on 1.8.1995. on 26.7.1995, Manager of the Perambra Estate of the Corporation received a letter from Krishnan Poti, along with a medical certificate, intimating that he would not be in a position to travel from Kanyakumari to Quilandy, and requested to make alternative arrangement for taking his evidence. On receipt of the letter, plaintiff filed a petition, LA. No. 1001 of 1995 before the Sub Court under 0.26 R.1, read with 0.26 R.19 and S.151 CPC on 29.7.1995 for issue of a commission examine the said witness. Petition was posted for counter on 1.8.1995. Medical certificate stated that witness was suffering from kidney disorder, hyertension and diabetic. Defendants did not file any counter affidavit to the said petition, nor opposed the same. Petition was taken up to 1.8.1995 and learned Sub Judge dismissed the petition and granted two days time to produce the witness, and posted the suits for further evidence on 3.8.1995. 4. Medical certificate stated that witness was suffering from kidney disorder, hyertension and diabetic. Defendants did not file any counter affidavit to the said petition, nor opposed the same. Petition was taken up to 1.8.1995 and learned Sub Judge dismissed the petition and granted two days time to produce the witness, and posted the suits for further evidence on 3.8.1995. 4. Against the dismissal of I. A. No. 1001 of 1995 plaintiff had made arrangements for filing Revision Petition before this Court. Since a copy of the order was not obtained, plaintiff filed LA. No. 1029 of 1995 on 2.8.1995 for adjournment of the suits. That application was also not opposed by the defendants. However on 3.8.1995, learned Sub Judge dismissed the application for adjournment. 5. Learned Sub Judge on 3.8.1995 itself dismissed all the eight suits for default and allowed all the counter claims. It is necessary to extract the order of the learned Sub Judge; which is as follows: "Suit is for money. No witness and plaintiff are present today inspite of the directions contained in LA. No. 1001 of 1995. Counsel for the plaintiff are present. But for want of the presence of the plaintiff and their witness, suit is dismissed for default. No costs. Consequently, counter claim is allowed." 6. Plaintiff then filed 1. A. Nos. 1220,1221,1222,1223,1224,1.225,1226 and 1227 of 1995 in O.S. Nos. 45/91, 47/91, 50/91, 51/91, 52/91, 41/95 and 43/95, 42/95 respectively, under O. IX, R.9 CPC to set aside the order of dismissal and restore the suits. In the meanwhile, plaintiff also filed CRP No. 2558 of 1995 against the order in LA. No. 1001 of 1995 dismissing the application for issue of a commission to examine the former Manager of the Estate. 7. Against the judgment and decree dismissing the suits and allowing the counter, claims, plaintiff filed A.S. Nos. 50/96,763/95,749/95,49/96,762/95,141/96,142/96 and 789 of 1995 before this Court. While so, Sub Court took up for consideration all the applications filed for restoration of the suits. The Court dismissed all the applications. While dismissing the applications, the court below held as follows: "All the suits were included in the list of August, 1995, in the open Court on 30th May, 1995. The said 1. A. was preferred only when the suits came up for trial. A detailed speaking order has been rendered in the 1. The Court dismissed all the applications. While dismissing the applications, the court below held as follows: "All the suits were included in the list of August, 1995, in the open Court on 30th May, 1995. The said 1. A. was preferred only when the suits came up for trial. A detailed speaking order has been rendered in the 1. A. and a further opportunity was given to adduce evidence. It is pertinent to note that the suits are based on written agreements. These documents would itself serve as primary evidence. No scope for oral evidence. It was once considered and found that the evidence of the proposed witness was helpful to the plaintiff only to introduce the written agreements and other official papers said to have been regularly maintained by them in the transactions involving the defendants. Those documents would be even introduced through the present Manager of the plaintiff-corporation. Therefore, I declined to allow the I.A. filed for removal of the suits from the list." Court further held as follows : "Certain cases, like the present suits, could be determined without the help of oral evidence. Therefore, the failure of the present Manager or other official of the plaintiff-corporation to enter into the box could not be treated as a reason beyond their control as envisaged under O. IX, R.9 of CPC. Alternatively they could have introduced and marked the documents maintained by them. In turn I hold that the apparent laches and negligence of the plaintiff to proceed with the suits were deliberate and that they were adamant on their view that a Commissioner should be appointed for examining the proposed witness, who is residing in Tamil Nadu. I also felt that the respective defendants would be deprived of their right to follow the proceedings, if the recording of evidence is done at a different place other than the court. All the parties concerned and their counsel will be put to hardship if the said application was allowed. The District Hospital is situated very close to the court premises and if the witness needs urgent medical attention that can also be availed. More over, the petitioner has no case that the condition of the proposed witnesses aggravated. All the parties concerned and their counsel will be put to hardship if the said application was allowed. The District Hospital is situated very close to the court premises and if the witness needs urgent medical attention that can also be availed. More over, the petitioner has no case that the condition of the proposed witnesses aggravated. It is unknown as to why the petitioner has not taken steps for issuance of a witness summons to the proposed witness through court since the proposed witness could be considered only as a witness and not as the plaintiff in the suit". 8. Aggrieved by the orders passed in various applications, plaintiff filed C.M.A. Nos. 14, 79 and 80 of 1997 against the order in LA. Nos. 1221, 1222 and 1223 of 1995 respectively before this Court. On the basis of valuation in the suits, plaintiff filed C.M. A. Nos. 129,130,131,132, and 133 of 1996 before the District Court, Kozhikode, against the orders in I.A. Nos. 1220,1224,1225,1226 and 1227 of 1995. Since suits were jointly tried, plaintiff filed C.M. C. Nos. 1,2,4,5 and 6 of 1998 before this Court for transferring C.M. A. Nos. 129 of 1996 etc. to this Court for being disposed of along with C.M.A.No.14 of 1997 and other connected cases. 9. In the present cases, we are primarily concerned with the legality of the order passed by the Sub Judge in dismissing the applications for the issue of a commission, restoration of the suits as well as the legality of the judgment and decree passed in the suits and allowing the counter claims preferred by the defendants. 10. When the matter came up for hearing, we heard learned counsel appearing for the appellant as well as respondents. 11. At the outset we may say that we are thoroughly dissatisfied by the manner in which learned Sub judge dealt with the applications filed by the plaintiff for setting aside the order of dismissal of the suits as well as the manner in which suits were dismissed and counter claims allowed. 12. Plaintiff-corporation filed all together 8 suits against various defendants for recovery of damages for failure to carry out the work of cutting and removing of rubber trees from their plantation as per the agreement executed by each one of them. All the suits were posted for joint trial. 12. Plaintiff-corporation filed all together 8 suits against various defendants for recovery of damages for failure to carry out the work of cutting and removing of rubber trees from their plantation as per the agreement executed by each one of them. All the suits were posted for joint trial. Plaintiff submitted a list of witnesses to be examined on their side on 7.11.1992. One of the witnesses was one Krishnan Pod, who after retirement from the service of the Corporation, was settled down at Kanyakumari. Poti expressed difficulty to come all the way from Kanyakumari to Quilandy. 'He then sent a letter on 26.7.1995 to the Manager of the Perambra Estate with a medical certificate requesting for making alternative arrangement for taking his evidence. Plaintiff then filed I.A. No. 1001 of 1995 praying for issue of a commission to examine the witness. Defendants did not file any objections. However, the learned Sub Judge dismissed the application. Against the said order, plaintiff has filed CRP No. 2558 of 1995. 13. C.R.P. 2558 of 1995 was filed against the order in I.A. 1001/95 which was an application filed by the plaintiff to examine the previous Manager of the Estate by issuing commission. Commission application was dismissed by the learned Sub Judge. The sole reasons for rejecting the said petition is that the witness or his doctor did not state that his earlier state of health had been aggravated and that he was not seen hospitalised. According to the Court if the witness is not examined by the Court itself there will be possibility of mixing up the evidence by the Commissioner. According to learned Sub Judge, since suits were instituted on the basis of written agreements, those documents itself would serve as primary evidence. It is also noted by the learned judge that there was no scope for oral evidence. We hasten to add that it is not for the learned Sub Judge to determine whether there is any scope for oral evidence or not. Learned Sub Judge better remind her self to leave those matters to the parties who-agitate their claims in a court of law. Reasoning of the learned Sub Judge that if a commission is issued to examine a witness at Tamil Nadu, the same would adversely affect the interests of the defendants cannot be sustained. Learned Sub Judge better remind her self to leave those matters to the parties who-agitate their claims in a court of law. Reasoning of the learned Sub Judge that if a commission is issued to examine a witness at Tamil Nadu, the same would adversely affect the interests of the defendants cannot be sustained. The advice of the learned Sub Judge that if the witness needs urgent medical attention the same could be availed of from District Hospital which is situated very close to the Court premises was also unwarranted. 14. Learned Sub Judge proceeded as if Corporation an arm of the State will have to spend money if the commission is issued to examine the witness at Kanyakumari. We are surprised by the observations of the learned Sub Judge. Even for conduct of cases, naturally the State has to spend expenses if the claim of the State is genuine. Therefore, court need not lament upon the loss that would be caused to the State. Learned Sub Judge could have passed an order compensating the State, if ultimately the court finds that the case put up by the plaintiff was genuine. Therefore, there is no question of any loss to the plaintiff which is a State owned Corporation. This reasoning of the learned Sub Judge cannot be supported by any provision of law. 15. Learned Sub Judge dismissed the applications for restoration of the suits on the ground that plaintiff could not show 'sufficient cause' for their non-appearance when the suits were called on for hearing. We are afraid that learned Sub Judge has not properly understood the scope and ambit of 0.9, R.9 CPC. 0. 9, R.9 is extracted for easy reference: "(1) Where a suit is wholly or partly dismissed under R.8, 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 nonappearance 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 application has been served on the opposite party." The above mentioned rule contemplates that if a suit is dismissed for default, it should be restored only when "sufficient cause" is made out and not otherwise. When sufficient cause is shown the reopening is mandatory and when sufficient cause is not shown it is discretionary. If a suit is dismissed for default, not due to the fault of the plaintiff or due to reasons beyond the control of the plaintiff, needless to say, when an application is filed by the plaintiff, the court is bound to restore the suit, since those grounds would constitute sufficient cause for his non-appearance. Those are areas where the court has no discretion, and the court is bound to restore the suit, 'there may be cases where the plaintiff could not appear on the date notified due to his default, but the plaintiff should show sufficient reasons for his non-appearance. In those cases also, court is also bound to restore the suit, since the plaintiff has established sufficient cause. There may be also cases where the plaintiff could not establish sufficient cause. Still the court should exercise its discretion depending upon facts of each case. That is the reason why Legislature has given power to the courts to set aside the order of dismissal "on such terms as to costs or otherwise as it thinks fit." 16. Legislature has used the expression' as it thinks fit' in 0. 9, R.9, which gives considerable amount of discretion to the court while entertaining an application for restoration of the suit, which was dismissed for default. The expression 'as it thinks fit' came up for consideration before the Supreme Court in AIR 1984 SC 1164. Supreme Court said that that expression confers very wide jurisdiction on an authority which exercises the power. Calcutta High Court in AIR 1989 Cal. 91 (Dulal Chandra v.. The expression 'as it thinks fit' came up for consideration before the Supreme Court in AIR 1984 SC 1164. Supreme Court said that that expression confers very wide jurisdiction on an authority which exercises the power. Calcutta High Court in AIR 1989 Cal. 91 (Dulal Chandra v.. Banamati Guchatt), relying upon the decision of the Supreme Court in Collector, Land Acquisition, Anantnag v. Kattji, AIR 1987 SC 1353, while considering the scope of O. IX, R.9, took the view that while considering the expression 'sufficient cause' Legislature has intended to use it as an elastic expression so as to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose for the existence of the institution of Courts. According to the Court, a liberal approach ought to have been made to understand the 'sufficient cause' as to the absence of the petitioner on the date of dismissal of the suit for default. Court felt that for ends of justice, an opportunity may be given to the petitioner to contest the main case on merit. 17. A learned single judge of this Court also in Pokku v. Ammini,1987 (2) KLT 308 relied on the above mentioned Supreme Court decision, and took the view that there is a wide discretion with the court in deciding what'sufficient cause' is for the purpose of allowing or rejecting the prayer. Sufficient cause is an elastic expression for which no hard and fast guidelines could be given. The nature of the claims or contention and the effect which the decision of the case is having in the rights of parties cannot be ruled out as absolutely foreign to the area of consideration under any circumstances. A learned single judge of this Court also in Sreedhara Kurup v. Mickel, 1968 KLT 599 held that the touch-stone in a case under O.IX, R.9 CPC is the presence of 'sufficient cause' for non-appearance when the suit was called on for hearing. If there is no sufficient cause the court cannot restore the suit as a matter of grace. On the other hand, it has always to be remembered that the broad principle of natural justice that informs our judicial institution is that a litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. On the other hand, it has always to be remembered that the broad principle of natural justice that informs our judicial institution is that a litigant should not be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part. In the above mentioned decision, it was held that it was largely a matter of wise discretion to be exercised by the court bearing in mind the wholesome principle that the right of a party to be heard should be negatived only if there is gross negligence or gross carelessness and that if some steps have been taken and application for restoration has been made with some diligence and some evidence adduced making out a sufficient cause for absence, restoration should be ordered, minor misconduct or laches being corrected by the common curative of costs. 18. The High Court of Bombay also in P.O. Shamaksani v. Central Bank of India, AIR 1938 Bom 199 held that it is a very serious matter to dismiss a suit or summons or whatever it may be without hearing it and that course ought not to be adopted, unless the court is really satisfied that justice so requires. Thus, court should restore the matter unless there is gross negligence or gross carelessness. A Division Bench of the Allahabad High Court in Juggi Lal v. R.J. Gupta, AIR 1962 All. 407 held that there may have been a certain amount of carelessness and want of forethought on the part of the plaintiff in not bringing the witness to the court at 10 a.m., but this by itself would not constitute a mistake or gross negligence so as to disentitle the plaintiff to the relief or restoration sought by him. This Court in Aboo v. Ahammed,1986 KLT (SN) 49 (case No. 81) held that courts should take a broad view of the matter, well informed of that principle of natural justice that courts seldom decide disputes without affording a reasonable opportunity to the suiters before it to present their case. A Judge should endeavour vigorously to do justice, to the parties by exercising a wise and broad discretion with reference to the peculiar circumstances of the case. 19. It is therefore, evident that 0.9 R.9 should receive a liberal construction when a party moves the court for restoration of the suits which is dismissed for default. A Judge should endeavour vigorously to do justice, to the parties by exercising a wise and broad discretion with reference to the peculiar circumstances of the case. 19. It is therefore, evident that 0.9 R.9 should receive a liberal construction when a party moves the court for restoration of the suits which is dismissed for default. It is not as if the court should restore every case that is brought before it. Court should look into the attendant circumstances and the conduct of the parties. It is true that court should exercise its discretion on well settled legal principles and judicial pronouncements. 20. In the instant case, the court below dismissed all the suits for default and the applications submitted for restoration of the suits were dismissed. It is a case where the party has produced a medical certificate showing that the witness cannot travel from Kanyakumari to Quilandy. Therefore, court should have examined the medical certificate to decide whether the request of the witness to be examined by a commission was genuine or not. It is pertinent to note that no counter affidavit was filed by the defendants as against the medical certificate or as against the petition filed by the plaintiff to examine the witness at Kanyakumari. In the absence of contra evidence, there is no reason why the court has taken the view that the witness should come to Quilandy for giving evidence. It is also pertinent to note that on earlier occasions Court permitted the commission to examine a witness at Kanyakumari. It is also pertinent to note that the suit was taken up when the plaintiff s counsel was present. Plaintiff and witness are alone absent. We do not find any gross negligence or gross carelessness on the part of the plaintiff in not bringing the witness to the court on the relevant date. We are of the view that learned Sub Judge has not properly applied her mind while considering the applications for restoration. Applications were dismissed without properly understanding the scope of O. IX R.9 CPC. On facts of this case, plaintiff has made out sufficient cause for allowing the applications for restoration of the suits. Accordingly, we allow the applications for restoration of suits. 21. We are now concerned with the validity of the judgment and also judgment decreeing the counter claim. Applications were dismissed without properly understanding the scope of O. IX R.9 CPC. On facts of this case, plaintiff has made out sufficient cause for allowing the applications for restoration of the suits. Accordingly, we allow the applications for restoration of suits. 21. We are now concerned with the validity of the judgment and also judgment decreeing the counter claim. By a common judgment dated 3.8.1995, the learned Sub Judge dismissed eight suits, since no witness of the plaintiff and plaintiff were present, but counsel for the plaintiff was present. However, since all the suits were dismissed for default, all the counter claims were allowed. We have already found that orders passed by the learned Sub Judge in dismissing the applications for restoration of the suits, which are dismissed for default were illegal. Consequently, all the suits stood restored and the common judgment passed in all the suits will stand set aside. 22. However, we have to examine the legality of the judgment delivered by the court below in decreeing the counter claims filed by the defendants. Defendants' counter claims were allowed, since all the suits were dismissed for default, going by the judgment. Therefore, since the suits are restored to file, going by the order of the learned Sub Judge, the decrees passed allowing the counter claims should go. Even otherwise we feel that we should examine the illegality in the procedure adopted by the learned Sub judge in allowing the counter claims as a consequence of the dismissal of the suit for default. Learned Sub judge was of the view that since the suits were dismissed for default, all the counter claims have to be allowed. 23. We are of the view that this reasoning of the learned Sub Judge cannot be accepted. Under O. VIII, R.6A, a defendant in a suit may set up by way of counter claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Under sub-r.(4) of R.6A the counterclaim should be treated as a plaint and governed by the rules applicable to plaints. A counterclaim should contain grounds which are necessary for constituting a claim. Under sub-r.(4) of R.6A the counterclaim should be treated as a plaint and governed by the rules applicable to plaints. A counterclaim should contain grounds which are necessary for constituting a claim. Under R.6B, where any defendant seeks to rely upon any ground as supporting a right of counter claim shall in his written statement state specifically that he does so by way of counterclaim. Under R.61) if in any case in which the defendants sets up a counter claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be produced with. Under R.6C where a defendant sets up a claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter claim, but in an independent suit, the plaintiff may apply to the court for the order that such counter claim may be excluded and the court may on the hearing of such application make such order as it thinks fit. In effect a counter claim is to place the plaintiff in the position of a defendant who must defend himself and put in a reply thereto in respect of a counter claim. Since a counter claim is in its nature a cross-suit, a defendant seeking to avail himself of the counter claim must set out all the material facts on which he relies. As held by this Court in 1987 (2) KLT 561 counter claim is to be treated as a plaint. 24. In the instant case, with regard to counter claims two issues were framed, and they are issues 8 and 9: They are extracted as follows: 8. Whether any part of the counter claim is barred by limitation as alleged by the plaintiff? 9. Whether the defendant is entitled to get any amount from the plaintiff, if so what is the quantum? It is pertinent to note that defendants did not adduce any evidence to substantiate their counter claim. We are of the view that plaintiff is justified in contending that if the suits were dismissed that does not mean that automatically the counter claim should be allowed. Even then', defendants have to establish the counter claims against the plaintiff and those claims have to be examined by the court with available evidence adduced by the parties. We are of the view that plaintiff is justified in contending that if the suits were dismissed that does not mean that automatically the counter claim should be allowed. Even then', defendants have to establish the counter claims against the plaintiff and those claims have to be examined by the court with available evidence adduced by the parties. It is evident from the judgment of the learned Sub Judge that she has not even referred to any of the claims. Learned sub judge proceeded as if the moment the suits were dismissed for default, all the counter claims have to be allowed. We are of the view that learned Sub judge has completely misread the provisions of 0. 8, R.6. 25. We therefore, allow the CRP and all the appeals and set aside the ex parte decree as against the plaintiff as well as the decree passed in the counter claims raised by the defendants. Accordingly all the suits are restored to file and will be proceeded with in accordance with law. We also dispose of the CMCs. by giving the direction to the court below to dispose of the appeals at the earliest, in accordance with this judgment. 26. In the instant case, learned judge disposed of eight suits by a common order dated 3.8.1995. That common order gave rise to 8 applications for restoration before the Sub Court, 3 CMAs. before this Court and 5 CMAs. before the District Court, Kozhikode and 5 CMCs. before this Court, and 8 first appeals and one CRP before this Court. All these cases could have been avoided had the judge properly understood the provisions of 0.9 R.9, in the normal course we would have awarded costs to the appellant, to be borne by the defendants. However, due to reasonable attitude taken by counsel for the defendants and also the fact that defendants have not filed objections before the Sub Court for restoration of the suits or for issue of commission, we are not awarding costs to the plaintiff. We hasten to add that quality of justice is not dependent upon quantity of cases disposed of by courts. Learned Sub Judge should remind herself of this. Communicate this judgment to the learned Sub Judge wherever she is posted.