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2013 DIGILAW 1013 (MP)

Rama Shankar v. Balak Das

2013-08-27

G.D.SAXENA

body2013
JUDGMENT G. D. Saxena, J.:- 1. This is an appeal under Order XLIII, Rule 1(c) of Civil Procedure Code by the plaintiffs/appellants, against an order dated 19th January, 2005 in Civil Suit No. 12/2003 passed by the Additional District Judge Sabalgarh, district Morena (M. P), dismissing thereby the application filed under Order IX, Rule 9 of Civil Procedure Code for restoration of suit which was dismissed in default of appearance of the plaintiffs and on pleading no instructions by their counsel, vide order dated 13th December, 1999. 2. The facts, in short, just for decision of this appeal are that late Durga Prasad had earlier instituted a Civil Suit No. 28A/1989 for declaration, recovery of possession and permanent declaration against respondent/defendant with regard to the properties bequeathed by late Raghuveer Das by executing a Will dated 30th September, 1988 in favour of Durga Prasad. During pendency of the suit, plaintiff Durga Prasad died and present appellants being his legal representatives were brought on record by substituting the deceased. Along with the suit, the application under Order XXXIX, Rules 1 and 2, Civil Procedure Code for temporary injunction was also filed by plaintiffs. Same was dismissed by an order dated 20-7-1990. Aforesaid order of dismissal dated 20-7-1990 was challenged by the appellants/plaintiffs before this Court in Misc. Appeal No. 122/90. By allowing the appeal by an order dated 29th August, 1991, this Court directed the trial Court for return of the plaint to the plaintiffs under Order VII, Rule 10, Civil Procedure Code for taking steps in appropriate forum. Being aggrieved by the order dated 29th August, 1991 of this Court, the appellants preferred the Intra-Court Appeal being No. 28/91 which was also dismissed by the Division Bench of this Court being not maintainable with a liberty to the appellants to file review petition for considering the order dated 29th August, 91. During pendency of the review petition before this Court, further proceedings in a pending suit before the trial Court were stayed. On 30th September, 1999, the appellants by filing the petition also informed the trial Court regarding stay of the proceedings by this Court. On 13th December, 1999 when the case of the plaintiffs was called on, they were absent and their counsel pleaded no instructions, consequently, the suit of plaintiffs was Dismissed in their absence. On 30th September, 1999, the appellants by filing the petition also informed the trial Court regarding stay of the proceedings by this Court. On 13th December, 1999 when the case of the plaintiffs was called on, they were absent and their counsel pleaded no instructions, consequently, the suit of plaintiffs was Dismissed in their absence. Subsequently, an application under Order IX, Rule 9, Civil Procedure Code for restoration of the original suit was preferred, which was dismissed vide order dated 19th January, 2005 by the trial Court hence, this appeal. 3. The submissions put forth on behalf of the appellants are that while passing the impugned order under appeal, the learned trial Court fell in error in not following the various judgments passed by Hon'ble. Apex Court as well as this Court on the point involved in this case. It is submitted by the counsel that since further proceedings of the case were stayed by this Court in the pending review petition, the plaintiffs/appellants were not present and they also did not contact their counsel as they were under impression that their matter would not be taken up owing to stay order granted by this Court. It is further submitted that no information was received about final result of the review petition pending before this Court and when the plaintiffs came to know through the public notice published in daily newspaper on 2nd August, 2003, they filed the application under Order IX, Rule 9, Civil Procedure Code for restoration of their suit along with application under sections 5 and 17 of the Limitation Act for condonation of delay in submitting the petition but the learned trial Judge without considering the cause for delay in filing the application and without going through the application moved under sections 5 and 17 of the Limitation Act, dismissed both the applications, which action according to the learned counsel is not sustainable in law. Therefore, on the basis of the aforesaid submissions, it is prayed that by allowing the appeal, the order impugned may be set aside and the learned trial Court may be directed to restore the suit to its original number and decide the same thereafter in accordance with law. 4. Therefore, on the basis of the aforesaid submissions, it is prayed that by allowing the appeal, the order impugned may be set aside and the learned trial Court may be directed to restore the suit to its original number and decide the same thereafter in accordance with law. 4. On the other hand, learned counsel appearing for the respondent/defendant opposed the prayer of the appellants for allowing the appeal and restoration of the civil suit which was already dismissed by the trial Court by the reasoned order. Accordingly, it is prayed that the appeal may be dismissed being devoid of substance. 5. The questions for consideration in this appeal are whether the order passed by the trial Court is suffering from any error and is liable to be set aside in view of the specific facts and circumstances of the case and/or whether the appellants have been prevented by sufficient cause from appearing in a suit pending before the trial Court ? 6. Heard the learned counsel for the parties. Also perused the proceedings of the trial Court and the provisions of law applicable to the case. 7. Before considering the questions involved in this appeal, it will be necessary to go-by the relevant provisions of law which are reproduced below: - 8. Order IX, Rule 9 of Civil Procedure Code reads as under:- “9. Decree against plaintiff by default bars fresh suit. - Where a suit is wholly or partly dismissed under Rule 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 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.” 9. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 9. Now, coming to the case at hand, it appears that when learned Single Bench directed the trial Court vide order dated 29th August, 1991 for return of the plaint to the appellants/plaintiffs under Order VII, Rule 10, Civil Procedure Code, the appellants against the said order preferred the Intra-Court Appeal being No. 28/91 which was also dismissed as not maintainable with a liberty to file review petition, for consideration of the order dated 29th August, 1991 passed in Misc. Appeal No. 122/90. It would be relevant to mention here that in the order dated 29th August, 1991, the learned Single Bench granted stay of further proceeding before the trial Court till the period of one month from the date of the order so as to enable the parties to move and adopt the course in accordance with law. It is contended by the learned counsel for the appellants that on 30th September, 1999, the appellants by moving the petition informed the trial Court regarding stay of the proceedings by this Court but despite having requisite knowledge of the stay of proceedings, the trial Court dismissed the suit in the absence of the appellants and on pleading no instructions by their counsel. This argument has no merit. From perusal of the record of review petition (M.C.C. 17/98), this Court finds that only the interim order was passed in Misc. Appeal No. 122/90 which was made effective only for a period of one month, from 29th August, 1991 till 29th September, 1991. This period of one month already expired as the period of stay was never further extended in the review petition by this Court. Appeal No. 122/90 which was made effective only for a period of one month, from 29th August, 1991 till 29th September, 1991. This period of one month already expired as the period of stay was never further extended in the review petition by this Court. Under the circumstances, the appellants ought to have contacted their counsel with a view to know the result of the pending suit as they were duly represented through counsel from the very beginning, but as appears from the facts, the appellants slept over the matter not only for a month but for a period of three years and ultimately from the public notice published in a daily newspaper on 2nd August, 2003, they could gather and then filed the application under Order IX, Rule 9 Civil Procedure Code for restoration of the suit along with application under sections 5 and 17 of the Limitation Act for condonation of delay. This lapse on their part, therefore, does not entitle them to seek remedy under Order IX, Rule 9 of Civil Procedure Code. 10. It may further be mentioned here that to consider the application under Order IX, Rule 9 of the Code of Civil Procedure, it has to be determined whether party to the suit honestly and sincerely intended to remain present before the Court when it was called on and did its best to do so. In this case, as discussed above, appellants were not prevented by sufficient cause, to show that they honestly and sincerely intended to remain present when the suit was called on for hearing. They did not even care to gather the information about the pending suit in a Court. Hence, the cause shown by them is the cause for which they could be blamed for non-appearance. The meaning of word “Sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. The sufficient cause must establish that, the party had not acted in negligent manner or there was a want of bonafide on its part. 11. In view of this, the reasons urged in the petition for restoration of suit were not sufficient to restore the suit by condoning such inordinate delay of three years. The sufficient cause must establish that, the party had not acted in negligent manner or there was a want of bonafide on its part. 11. In view of this, the reasons urged in the petition for restoration of suit were not sufficient to restore the suit by condoning such inordinate delay of three years. The facts on record indicate that the absence was inspired purely by dilatory tactics and therefore the learned trial Court held that the appellants have in not making their appearance or informing their counsel neglected their duty towards the Court and rightly decided to proceed against the consequences of such negligence. In such circumstances dismissal of the suit in absence of party or his counsel does not require to be set aside as observed by this Court in the case of Puranlal v. Laxmiram, reported in 1961 MPLJ SN 6. 12. This Court, therefore, finds no merits in this appeal. Consequently, it is dismissed. Appeal dismissed.