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2004 DIGILAW 1339 (RAJ)

Madanchand & Brothers v. Bank of Baroda

2004-09-15

P.C.TATIA

body2004
Honble TATIA, J.–Heard learned counsel for the petitioner. (2). By this revision petition, the petitioner is challenging the order dated 12.04.2004 by which the appellate court allowed the appeal of the plaintiff respondent bank and set aside the dismissal of the suit, which was dismissed in default. (3). Brief facts of the case are that the plaintiffs suit was dismissed in default as nobody appeared before the Trial Court on 6.03.1995. The plaintiff bank submitted an application under Rule 9 Order 9 C.P.C. stating therein that on that day, the advocates were on strike and the plaintiff had no knowledge about the date of the suit. The suit was fixed for framing issues only and the plaintiffs presence was not at all necessary as the court could have framed the issues and could have proceeded with the suit, therefore, the suit should not have been dismissed by the court below. It is further prayed that since the matter is relating to the recovery of the bank money and in case, the suit will not be restored, it will cause serious injustice. (4). The defendant submitted reply to the application and has raised an objection that the application under Rule 9 Order 9 C.P.C. has not been filed by an authorized person as it has been signed by one Shri J.P. Sharma, Senior Manager of the Bank whereas originally the plaint was submitted with the sign of Shri K.M. Mathur, Regional Manager of the Bank. It is also submitted that the grounds given in the application are vague and the application has been filed after inordinate delay without there being any application for condonation of delay. It is also submitted that there appears to be no reason for non-appearance of the plaintiff on the date when the suit was called for by the court below. (5). The Trial Court held that the application has not been filed by the proper person, therefore, the application deserves to be dismissed. Despite holding as above, the court below proceeded to decide the application on merit. The Trial Court held that the application has been filed after inordinate delay and the application for condonation of delay has also not been filed, therefore, the application is barred by time. Despite holding as above, the court below proceeded to decide the application on merit. The Trial Court held that the application has been filed after inordinate delay and the application for condonation of delay has also not been filed, therefore, the application is barred by time. The Trial Court has also found that the absence of the party and their advocate on the date when the suit was dismissed, was without any just and proper cause. (6). The respondent bank preferred appeal against the said order of the Trial Court. In the appeal, the respondent bank submitted an application under Section 5 of the Limitation Act to meet with the objection of not filing of application for condonation of delay along with application under Order 9 Rule 9 C.P.C. The appellate court after relying upon the judgment of the Honble Supreme Court delivered in the case of Rafiq & Anr. vs. Munshi Lal & Anr. (1), held that the respondent bank is a public financial institution and the plaintiff had no knowledge of the date fixed by the court below and in view of the fact that the Trial Court itself on earlier occasions, in same situation adjourned the case and there was no change in the circumstance on 6th Sept., 1995. The same situation of absence of the plaintiff was there on 24th Oct., 1994 and 9th Dec., 1994 also, then the court below should not have dismissed the suit on the date when the court below could have proceeded with the suit by framing the issues. In these circumstances, the first appellate court after condoning the delay in filing the application, set aside the order of dismissal of the suit. (7). Learned counsel for the petitioner vehemently submitted that the first appellate court has not considered the reasons given by the Trial Court and the application under Section 5 of the Limitation Act, which was filed by the plaintiff-bank in appeal, cannot be considered as an application, which is required to be filed before the Trial Court for condonation of delay in moving the application for restoration of suit. It is also submitted that the reasons given by the plaintiffs for their absence on the relevant date is not sufficient ground for setting aside the order of dismissal of the suit. It is also submitted that the reasons given by the plaintiffs for their absence on the relevant date is not sufficient ground for setting aside the order of dismissal of the suit. The learned counsel for the petitioner submits that this court in a recent judgment delivered in the case of M/s. Jugal Bhatia Pvt. Ltd. vs. Shri Nath Cement Industries Pvt. Ltd. (2), held that even if, the advocate told the litigant that he will inform the litigant to remain present in the court, cannot help the careless and negligent litigant and even if, said assurance was given, still the litigant is required to contact with his advocate and in view of the above, the reason given by the plaintiff is not sufficient for condonation of delay. (8). I considered the submissions of learned counsel for the petitioner and perused the facts of the case. Undisputedly, the suit was filed by the Bank through its representative. The suit was dismissed and the application under Order 9 Rule 9 C.P.C. was filed by the Bank and not by any person in his individual and personal capacity. The Trial Court failed to understand difference between the plaintiff and plaintiffs representative when the Trial Court observed that the suit was not filed by the applicant. The application itself contains the title which clearly shows that the application was filed by the plaintiff- bank and not by any person. Any change of officer of the bank cannot deprive that successor in office or any other officer, who is authorized specifically, or who can in exercise of his power by virtue of his post, can continue with the proceedings originally initiated on behalf of the bank by a competent person. In the same sequence, the successor in office or the officer, who is competent to move the application, can submit the application on behalf of the bank in court including the application for restoration of suit. Therefore, the reasons given by the court below appears to be contrary to the law, when the court below held that the suit was not filed by the applicant, therefore, applicant has no right to move application for restoration of the suit. (9). Therefore, the reasons given by the court below appears to be contrary to the law, when the court below held that the suit was not filed by the applicant, therefore, applicant has no right to move application for restoration of the suit. (9). The Trial Court since failed to appreciate the facts, which were taken note of by the appellate court and since the appellate court has given sufficient reason for holding the order of dismissal of the suit as wrong, therefore, the reason given by the first appellate court is an independent ground and can be a just ground for setting aside the entire order of the Trial Court. When the appellate court finds that the court below either failed to consider core question or has not applied its mind to the core question and if that core question if decided in favour of the aggrieved party, would reverse the result of the decision, then in same case even without reversing the findings or without rejecting the reasons, the appellant court may set aside the order of the lower court, but it depends upon fact of each case. (10). The ground given by the first appellate court is that on 24th Oct., 1994, 19th Dec., 1994 and 6.03.1995, the case was fixed for framing the issues and on all three days, the advocates were on strike, but the suit was not dismissed by the court on 24th Oct., 1994, 19th Dec., 1994 and what was the reason for the Trial Court to take a different stand on 6.03.1995 for dismissal of the suit is not clear. The first appellate court further held that the suit was fixed for framing the issue and even in the absence of the plaintiff, the court could have framed the issues and could have fixed the date for evidence of the plaintiff, but that has not been done. The first appellate court since found that on the relevant date presence of the party was not necessary, then what comes out from the order of the first appellate court is that the Trial Court without there being any change in circumstance, passed the order of dismissal of the suit on the date when presence of the party was not necessary. Therefore, this point goes to the root of the matter and in such circumstances, even if, there is some carelessness and negligence of the party to show reason for his absence (and when presence was not necessary), then a lenient view is required to be taken in the matter of condonation of delay. If the party is not required to remain presence in the court on a particular date looking to the proceedings to be taken by the court and the court can proceed with the suit even without assistance of party and his advocate, then it is always desirable that the court should not dismiss the suit. When suit is fixed for framing of issues and parties do not appear, despite Rule 3 of Order 9 C.P.C., the courts should not dismiss the suit as it will not advance cause of justice. (11). In this case, the first appellate court considered the facts and allowed the application under Section 5 of the Limitation Act. This order is discriminatory order and while exercising the revisional jurisdiction, this court is not inclined to take a view so as to deprive the plaintiff from prosecuting his entire suit involving only public fund. I do not find any reason for interference in the order passed by the first appellate court. (12). Since, in this case it has been held that the Trial Court could have proceeded with the suit on 6.03.1995 in absence of the party and advocate, then the judgments of this court relied upon by learned counsel for the petitioner has no application. In said M/s. Jugal Bhatia Pvt. Ltd.s case, (supra), basic factual difference is that, in that case the Trial Court could not have proceeded with the suit as written statement was not filed by the defendant in that case and the Trial Court could have proceeded with the suit only after passing order to proceed ex-parte against the defendant. In that case, plea of the defendant was that he did not contact his advocate for about three years as his advocate told him that he (his advocate) will call him. Such stand was rejected as no party can say that on saying of advocate, he can wait for such a long period when he (defendant) has not even submitted written statement. (13). In view of the above, the revision petition is dismissed.