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2010 DIGILAW 181 (MAD)

Zulaika Bi v. Mohanamba & Another

2010-01-19

M.VENUGOPAL

body2010
Judgment :- The Petitioner/Appellant/Plaintiff has filed this Civil Revision Petition as against the order dated 31.08.2000 in C.M.P.No.970 of 1996 passed by the Learned VII Additional Judge, City Civil Court, Chennai in dismissing the petition praying to restore C.M.P.No.1563 of 1995 dismissed for default dated 19.06.1996 filed by the petitioner under Order 9 Rule 9 of Civil Procedure Code. 2.The Learned VII Additional Judge, City Civil Court, Chennai while passing orders in C.M.P.No.970 of 1996 dated 31.08.2000 has inter alia opined that the reasons mentioned in the petition to restore C.M.P.No.1563 of 1995 to file are an unacceptable one for the reason, earlier C.M.P.No.242 of 1992 has been dismissed, which fact has been known to the petitioner and again in C.M.P.No.1563 of 1995 which has been filed to restore C.M.P.No.242 of 1992, the petitioner has not appeared properly and also not taken proper steps and has adopted an indifferent attitude and therefore, the same has been dismissed on 19.06.1996 and therefore, the reasons ascribed in the petition to restore C.M.P.No.1563 of 1995 are not proper and consequently, dismissed the petition without costs. 3.The learned counsel for the Revision Petitioner urges before this Court that the impugned order of the trial Court is contrary to law and without jurisdiction and further the delay of 84 days in representing the appeal which was returned for some compliance ought to have been excused and also that heavy stakes are involved in the matter as Mohanambal is not the daughter of the petitioners tenant Sivagami Ammal or her husband Masilamani and as a matter of fact Mohanambal has been brought up by Masilamani and as such the suit property cannot be claimed by Sivagami Ammal, who is an utter stranger to Mohanambal and therefore, the judgment of the trial Court upholding the right of Mohanambal, as the daughter of Sivagami Ammal is an erroneous one and that apart, when the petitioner has a substantial case in her favour and when she has a fair chance of success in her appeal, it is unlikely and unthinkable that the petitioner would have slept over the matter etc., but these aspects of the matter have not been looked into and appreciated by the trial Court in a proper perspective, which in turn has resulted in miscarriage of justice and therefore, prays for allowing the Civil Revision Petition in the interest of justice. 4.The revision petitioner in her affidavit in C.M.P.No.970 of 1996 has inter alia averred that her petition for leave to appeal as an indigent person in C.M.P.No.242 of 1992 has been dismissed for default for her non-appearance, as she has been ill and hence, she has filed C.M.P.No.1563 of 1995 for restoration and that the same has been posted to 19.06.1996 and her counsel has gone to Sabarimala, though she has taken steps she has not represented the matter properly and hence, the Court has dismissed her petition for default in taking steps and if C.M.P.No.1563 of 1995 for restoration is not ordered, she will be seriously prejudiced and further, she is a widow without any help and therefore, prays for restoring the C.M.P.No.1563 of 1995 to file. 5.In the counter filed by the 1st respondent (before the trial Court), it is among other things mentioned that it is strange that the 3rd respondent who is not a party to the proceedings viz., suit, first appeal and the application to permit the petitioner to file first appeal either in her own capacity or as legal heir of the deceased respondent Akbar Basha, is impleaded as party to the above application and moreover, the reasons mentioned in the petition for restoration are not acceptable and tenable and added further, no explanation is forthcoming as to why the petitioner has not attended the Court on that date and what has been the alternate arrangement made by her counsel to represent the matter and the allegations are mere lame excuses thought of and made for the occasion and indeed, the petitioner is in the habit of coming out with petition after petition and allow them to go for default and for projecting an application to restore the same and she is guilty of latches and the very fact that an appeal which has been returned for compliance, has been represented after delay of 84 days will go to show the attitude of the petitioner and there is no truth or bonafide in the contentions of the petitioner and the petition is devoid of merits and therefore, the same may be dismissed with costs. 6. 6. Be that as it may, at this stage, this Court pertinently points out that the revision petitioner has earlier filed C.M.P.No.1563 of 1995 praying permission of the trial Court to restore C.M.P.No.242 of 1992 in unnumbered A.S.SR.No.13364 of 1992 in O.S.No.5919 of 1984 dated 19.10.1995 wherein it is averred that C.M.P.No.242 of 1992 (leave to appeal as an indigent person) has been posted on 19.10.1995 and she has suddenly taken ill and he has lost consciousness and taken to Stanley hospital for immediate treatment on the night of 16th and she has been alright on 21.10.1995 and due to her unavoidable illness, she has not appeared before the Court on 19.10.1995 and therefore her absence is not wilful nor wanton but due to the aforesaid reason. 7. The 1st respondent in her counter affidavit in C.M.P.No.1563 of 1995 has stated that the petitioner has not at all been diligent in prosecuting the matter and she is guilty of latches and there is no truth or bonafide in the contentions of the petitioner. 8. A perusal of the notes paper in C.M.P.No.1563 of 1995 in C.M.P.No.242 of 1992 indicates that the matter has been posted for disposal and there has been no representation on the side of the petitioner and the petitioner has been called absent and resultantly, the petition has been dismissed for default. 9. It is true that the term Good Cause in Order 9 Rule 7 of Civil Procedure Code and Sufficient Cause in Order 9 Rule 13 of Civil Procedure Code do not possess a substantial difference in meaning, as opined by this Court. 10. As counsel are officers of Court and though a mistake or negligence of a counsel can be taken into account, yet negligence of an advocate cannot be a sufficient cause for non-attendance in all cases. Furthermore, there is no absolute rule that negligence of counsel is Sufficient Cause. 11. It is to be borne in mind that there is no straight-jacket cast iron formula for determining what is sufficient cause so as to confer relief to a litigant under Order 9 Rule 9 of Civil Procedure Code and the matter is within the domain and wisdom, good sense and discretion of Law Courts. No wonder, as to what is sufficient cause depends on the facts and circumstances of each case in the considered opinion of this Court. No wonder, as to what is sufficient cause depends on the facts and circumstances of each case in the considered opinion of this Court. Generally, the term sufficient cause ought to be considered with pragmatism in justice oriented approach rather than following a technical rigidity. 12. One cannot brush aside an important fact that the Limitation Act enables a Court of Law to do substantial justice to the parties in disposing of the matters on merits. Also, the term sufficient cause employed by the legislature is elastic enough to enable the Courts to apply the law with a view to subserve the ends of justice – that being the life purpose for the existence of the institution of Courts. It is not in dispute that the revision petitioner has filed earlier C.M.P.No.1563 of 1995 praying permission of the Court to restore C.M.P.No.242 of 1992 and the same has been dismissed on 19.06.1996 by the trial Court for the reason that there has been no representation on the side of the petitioner and further that the petitioner has been called absent and hence, the trial Court has been perforced to dismiss the petition for default. The petitioner after filing C.M.P.No.1563 of 1995 praying to restore C.M.P.No.242 of 1992 to file is expected to be diligent in prosecuting a matter without any latches. However, owing to her nonappearance before the trial Court on 19.06.1996, the C.M.P.No.1563 of 1995 has been dismissed for default. Though the petitioner ascribes the reason in her affidavit that she has suddenly taken ill and lost her consciousness and later, she has been alright only on 21.10.1995, no semblance documentary proof from the hospital authorities has been projected on the side of the petitioner to prove her version to the subjective satisfaction of this Court. 13. Also, the other reason mentioned by the revision petitioner in C.M.P.No.970 of 1996 to the effect that when C.M.P.No.1563 of 1995 has been posted to 19.06.1996 before the trial Court, her counsel has gone to Sabarimala and though she has taken steps she has not represented the matter properly etc. cannot be a valid, tenable and acceptable one in the considered opinion of this Court and resultantly, this Court comes to an inevitable conclusion that on the facts and circumstances of the present case, it cannot adopt a liberal approach and consequently, the Civil Revision Petition fails. cannot be a valid, tenable and acceptable one in the considered opinion of this Court and resultantly, this Court comes to an inevitable conclusion that on the facts and circumstances of the present case, it cannot adopt a liberal approach and consequently, the Civil Revision Petition fails. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Consequently, the order passed by the trial Court in C.M.P.No.970 of 1996 dated 31.08.2000 is affirmed by this Court for the reasons assigned in this revision.