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2014 DIGILAW 203 (BOM)

Harsukh B. Gohel v. Vinod Kumar Bindlish

2014-01-27

S.C.GUPTE

body2014
Judgment : P.C. : 1. This Notice of Motion is taken out by the Plaintiff for setting aside an order dated 18 February 2011 passed by a learned Single Judge of this Court, dismissing the Summary Suit for want of prosecution. 2. The suit claims a decree for a sum of Rs. 20,00,000/-with interest from date of filing of the suit till payment and or realisation. The suit is filed on the basis of a Memorandum of Understanding executed between the Plaintiff and the Defendants. 3. By an order dated 10 December 2009, unconditional leave to defend was granted to the Defendants. The Defendants, thereafter, filed their Written Statement and the suit was posted for evidence. On 12 April 2010, the Plaintiff sought time to file his affidavit in lieu of examination-in-chief along with the affidavit of documents and therefore, the suit was adjourned for a period of one week. On 19 April 2010 when the matter was taken up for hearing once again, the Plaintiff failed to file his affidavit in lieu of evidence as well as the affidavit of documents. On an adjourned date, i.e. on 26 April 2010, once again, time was sought by the Plaintiff. Thereafter the matter was called out on 11 January 2011, when the Plaintiff was still not ready with his affidavit and original documents and the matter was adjourned to 18 February 2014. The matter was called out on 18 February 2011, when once again time was sought on the ground that the Plaintiff was out of Mumbai. This Court came to the conclusion that despite repeated opportunities being given, the Plaintiff had failed and neglected to file his affidavit in lieu of examination-in-chief and documents and that the Plaintiff was, therefore, not interested in prosecuting the suit. This Court, accordingly, dismissed the suit for want of prosecution on 18 February 2011. 4. This Court came to the conclusion that despite repeated opportunities being given, the Plaintiff had failed and neglected to file his affidavit in lieu of examination-in-chief and documents and that the Plaintiff was, therefore, not interested in prosecuting the suit. This Court, accordingly, dismissed the suit for want of prosecution on 18 February 2011. 4. The present Notice of Motion is taken out by the Plaintiff for setting aside the order of 18 February 2011, on the ground inter-alia that on account of the Plaintiff's ill-health, he could not initially attend the hearing or instruct his Advocates to prepare the necessary affidavit of evidence in lieu of examination-in-chief and the affidavit of documents; that after he recovered from his ill-health, the Plaintiff prepared an affidavit of evidence, which was affirmed on 29 April 2010; that on 18 February 2011 the Plaintiff had gone out of Mumbai for urgent personal work and, as such, could not remain present in Mumbai on that day and had to instruct his Advocates to seek a short adjournment. The Plaintiff submits that in these premises and having regard to the fact that the Plaintiff has an excellent case on merits, the order of dismissal of the suit passed by this Court deserves to be set aside. The Plaintiff has, accordingly, applied for setting aside that order and restoration of the suit under Order IX Rule 9 of the Code of Civil Procedure, 1908. 5. Learned Advocate for Defendant No.1 has raised two preliminary objections to the maintainability of the present Notice of Motion. Firstly, it is contended that having regard to the provisions of Sections 3 and 4A of the Bombay City Civil Court Act, 1948 (“City Court Act”), the present Notice of Motion, being a proceeding of a civil nature arising within the City of Greater Mumbai and made cognizable by the Bombay City Civil Court, ought to be transferred to that Court. Secondly, it is submitted that the provisions of Order XVII Rule 2 read with the provisions of Order IX, do not apply to an application for restoration of a suit dismissed for non-prosecution, as in the instant case, and no application for setting aside the dismissal order can filed either under Rule 4 or Rule 9 of Order IX. 6. Secondly, it is submitted that the provisions of Order XVII Rule 2 read with the provisions of Order IX, do not apply to an application for restoration of a suit dismissed for non-prosecution, as in the instant case, and no application for setting aside the dismissal order can filed either under Rule 4 or Rule 9 of Order IX. 6. Let me take up first the issue of jurisdiction of the Court to entertain this Notice of Motion having regard to Sections 3 and 4A of the City Court Act. It is submitted by the learned Advocate for Defendant No.1 that by reason of the amendment of the City Court Act by Bombay City Civil Court (Amendment) Act, 2012(“Act of 2012”), the present Notice of Motion ought to be transferred to the City Civil Court. The Learned Advocate submits that all suits and/or proceedings of a civil nature not exceeding rupees one crore in value come within the purview of Section 3 of the City Court Act and are required to be transferred to the City Civil Court by virtue of amended Sub-section (1) of Section 4A if pending in this Court on the date of commencement of the Act of 2012. The learned Advocate submits that the present Notice of Motion is a proceeding of a civil nature not exceeding rupees one crore in value and pending in this Court on the date of coming into force of the Act of 2012 and therefore ought to be transferred to the Bombay City Civil Court. 7. Section 3 of the City Court Act, after its amendment by the Act of 2012, reads as follows:- “3. The [State] Government may, by notification in the Official Gazette, establish for the Greater Bombay a court, to be called the Bombay City Civil Court. 7. Section 3 of the City Court Act, after its amendment by the Act of 2012, reads as follows:- “3. The [State] Government may, by notification in the Official Gazette, establish for the Greater Bombay a court, to be called the Bombay City Civil Court. Notwithstanding anything contained in any law, such court shall have jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature not exceeding rupees one crore in value arising within the Greater Bombay, except suits or proceedings which are cognizable” (a) by the High Court as a Court of Admiralty or Vice-Admiralty as a Colonial Court of Admiralty, or as a Court having testamentary, intestate or matrimonial Jurisdiction, or (b) by the High Court for the relief of insolvent debtors, or (c) by the High Court under any special law other than the Letters Patent, or (c-1) by the High Court under the Parsi Marriage and Divorce Act, 1936; or (c-2) by the High Court in respect of intellectual property matters; or (d) by the Small Cause Court : Provided that, the State Government may, from time to time, after consultation with the High Court, by notification in the Official Gazette, enhance the pecuniary jurisdiction of the City Court and correspondingly alter the pecuniary jurisdiction of the High Court. 8. Sub-section (1) of Section 4A of the City Civil Court Act, after its amendment by the Act of 2012, provides as follows:- “4 A. (1) Notwithstanding anything contained in Section 9 of the Bombay City Civil Court and the Bombay Court of Small Causes (Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1986, all suits and proceedings cognizable by the City Court under section 3, and pending in the High Court on the date of coming into force of section 4 of the Bombay City Civil Court (Amendment) Act, 2012 not being suits or proceeding falling under clauses (a) to (d) of section 3, shall stand transferred to the City Court.” 9. The question essentially is, what is meant by the word 'proceeding' in the sections quoted above. The word 'proceeding' is not defined in the Act nor is it defined under the Code of Civil Procedure, 1908. The word 'proceeding' ordinarily relates to a form of law, the mode in which a judicial transaction is conducted. The question essentially is, what is meant by the word 'proceeding' in the sections quoted above. The word 'proceeding' is not defined in the Act nor is it defined under the Code of Civil Procedure, 1908. The word 'proceeding' ordinarily relates to a form of law, the mode in which a judicial transaction is conducted. In Black's Law Dictionary the word 'proceeding' is explained as follows "In a general sense, the form and manner of effecting judicial business before a court or judicial officer". 10. Though this may be its meaning in general acceptation, what we are really concerned with here is the meaning of the word 'proceeding' used in the statute quoted above. This meaning will have to be gathered by looking at the statute itself and considering the context in which the word is used in the statute. While construing the expression “proceeding” appearing in Section 24 1(b) of the Code of Civil Procedure, the Supreme Court stated in Ramchandravs. State of UP ( AIR 1966 SC 1888 ): “The expression “proceeding” used in this section is not a term of art which has acquired a definite meaning. What its meaning is when it occurs in a particular statute or a provision of a statute will have to be ascertained by looking at the relevant statute. Looking to the context in which the word has been used in S.24(1)(b) of the Code of Civil Procedure it would appear to us to be something going on in a Court in relation to the adjudication of a dispute other than a suit or an appeal. Bearing in mind that the term “proceeding” indicates something in which business is conducted according to a prescribed mode it would be only right to give it, as used in the aforesaid provision, a comprehensive meaning so as to include within it all matters coming up for judicial adjudication and not to confine it to a civil proceeding alone.” 11. In the Code of Civil Procedure itself the word 'proceeding' appears in different contexts and conveys different meanings according to these contexts. For example, as explained by the Supreme Court in Ramchandra'scase (supra), in Section 24 of the Code of Civil Procedure, the expression 'proceeding' means something going on in a Court in relation to the adjudication of a dispute other than a suit or an appeal. For example, as explained by the Supreme Court in Ramchandra'scase (supra), in Section 24 of the Code of Civil Procedure, the expression 'proceeding' means something going on in a Court in relation to the adjudication of a dispute other than a suit or an appeal. 'Proceeding' under Section 24 would include an execution proceeding. On the other hand, in Section 141 of the Code of Civil Procedure all proceedings of a civil nature would include proceedings under Order IX but would not include execution proceedings. So also, the term appears in different statutes and takes its colour from the context in which it is used. The Supreme Court in the case of BabuLal vs. Hazari Lal Kishori Lal (1982) 1 SCC 525 : AIR 1982 SC 818 ) construed the word 'proceeding' used in the Specific Relief Act thus: “17. The word ‘proceeding’ is not defined in the Act. Shorter Oxford Dictionary defines it as “carrying on of an action at law, a legal action or process, any act done by authority of a court of law ; any step taken in a cause by either party”. The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in S. 22 includes execution proceedings also. ........ Execution is a stage in the legal proceedings. It is a step in the judicial process. It marks a stage in litigation. It is a step in the ladder. In the journey of litigation there are various stages. One of them is execution.” 12. It is, therefore, necessary to look at the provisions of the statute with which we are concerned here for ascertaining the meaning of the word 'proceeding'. Section 3 of the City Civil Court Act, 1948 is a jurisdictional provision which provides for the jurisdiction of the Court to receive, try and dispose of all suits and other proceedings of a civil nature. It is to be noted that proceedings of civil nature are prefaced by the word “other” and these proceedings are contradistinguished from suits. Section 3 of the City Civil Court Act, 1948 is a jurisdictional provision which provides for the jurisdiction of the Court to receive, try and dispose of all suits and other proceedings of a civil nature. It is to be noted that proceedings of civil nature are prefaced by the word “other” and these proceedings are contradistinguished from suits. They are, obviously, other than suits but at the same time in the nature of suits. The expression 'proceedings' here obviously means proceedings covering original matters like probates, guardianships, divorce, insolvency etc. This is further clear from the explanation which follows in Section 3 itself. The proceedings such as testamentary or admiralty proceedings (which are not suits) are excluded from the ambit of proceedings which can be received, tried or disposed of by the City Civil Court. 13. The question as to what is meant by 'proceedings' other than suits and appeals in a Court of civil jurisdiction was considered by the Privy Council in the case of ThakurPershad vs. Sheikh FakirUllah and Anr. (1894) L.R. 22 I.A. 44). in the context of Section 647 of the Code of Civil Procedure 1882, as it stood when that Code was first enacted. The Section, namely, Section 647 of the Code of Civil Procedure, as it then stood, ran as follows: “647. The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction other than suits and appeals. The High Court may, from time to time, make rules to provide for the admission, in such proceedings, of affidavits as evidence of the matters to which such affidavits respectively relate; and such rules, on being published in the local official Gazette, shall have the force of law.” Construing the expression 'proceedings' used in Section 647 the Privy Council in the case of ThakurPershad, held that the 'proceedings' referred to in Section 647 cover only original matters in the nature of suits such as proceedings in probates, guardianships, and so forth. 14. Having regard therefore to the context in which the word 'proceedings' is used in Section 3 and 4A of the City Court Act, I am of the view that the expression includes only original matters which are in the nature of suits and not proceedings adopted by a party in a suit. 14. Having regard therefore to the context in which the word 'proceedings' is used in Section 3 and 4A of the City Court Act, I am of the view that the expression includes only original matters which are in the nature of suits and not proceedings adopted by a party in a suit. A Notice of Motion under Order IX Rule 4 or Order IX Rule 9 is a proceeding adopted in a suit and not covered in the expression proceeding as used in Section 3 or 4A of the City Court Act. Such Notice of Motion is not cognizable by the City Civil Court independently of the suit in which it is taken out and therefore, not liable to be transferred to that Court. 15. Now, as regards the maintainability of the present Notice of Motion under Order IX Rule 9 of the Code of Civil Procedure, it is submitted by the learned Counsel for the Plaintiff that in the present case when the Court passed its order on 18 February 2011, the Court was actually proceeding under clause (b) of Rule 3 of Order XVII and therefore necessarily under Rule 2 of that Order. The learned Counsel further submitted that the expression 'presence of the parties' used both in Order XVII and Order IX implies effective presence and in the absence of such effective presence if the Court proceeds to dismiss the suit for non-prosecution, it is akin to dismissal of the suit for default under Rule 3 or Rule 8 of Order IX and in such a case an application for restoration of the suit by setting aside the dismissal order lies under Rule 4 or Rule 9 of Order IX depending on whether the suit is dismissed under Rule 3 or Rule 8 of Order IX. 16. On the other hand, it is submitted by learned Counsel for Defendant No.1 that the Court has already exercised its discretion under Section 148 of the Code of Civil Procedure when it declined to enlarge the time as sought by the Plaintiff and has proceeded to decide the suit under clause (a) of Rule 3 of Order XVII. It is submitted by the learned Counsel that under these circumstances an application for setting aside the order does not lie either under Rule 4 or under Rule 9 of Order IX. 17. It is submitted by the learned Counsel that under these circumstances an application for setting aside the order does not lie either under Rule 4 or under Rule 9 of Order IX. 17. Here is a suit where the Plaintiff has appeared through an Advocate but has been unable to proceed with the hearing of the suit due to inability to lead evidence on the date of hearing and as a result, the suit is dismissed for non-prosecution. The question is: Does an application under Order IX Rule 4 or Rule 9, as the case may be, lies for restoration of such a suit. The answer depends on whether the Court acted under Rule 3 or Rule 8 of Order IX whilst passing the order of dismissal. This in turn brings us to the question whether the Court has acted under Rule 2 read with Rule 3 of Order XVII, as explained below. 18. Rules 1(1), 2 and 3 of Order 17 which deals with adjournments, read as follows: ORDER XVII ADJOURNMENTS 1. Court may grant time and adjourn hearing — (1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. 2. Procedure if parties 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 may 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. Explanation.—Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. 3. Explanation.—Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. 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." 19. As may be seen, Rule 3 operates in a situation where a party to a suit, to whom time has been granted, fails to produce evidence or to cause attendance of his witness or to perform other necessary act. The Court has two options in such a situation. The first option is exercised in a case where the parties are present. In that case, the Court may proceed to decide the suit forthwith. A decision of the Court in the suit implies a decision on merits as discussed by me later in this judgment. The other option is available when the parties are, or any one of them is, absent. In such a case, the Court has a discretion to proceed under Rule 2. Rule 2, on its part, gives a discretion to the Court to proceed to dispose of the suit in any of the modes prescribed in that behalf by Order IX or make such other order as it thinks fit. 20. Thus, the first question to be considered is whether the Court has proceeded on the basis of presence or absence of parties, or any of them. This necessarily takes us to the question as to what is meant by 'appearance' or 'absence' of parties. The provisions of Order IX deal with the subject of 'appearance of parties' and the consequence of their non-appearance. Order IX provides different modes in which the Court may deal with the situation of absence of either parties. This necessarily takes us to the question as to what is meant by 'appearance' or 'absence' of parties. The provisions of Order IX deal with the subject of 'appearance of parties' and the consequence of their non-appearance. Order IX provides different modes in which the Court may deal with the situation of absence of either parties. Rule 2 provides for a case where the defendant's absence is caused by non-service of summons in consequence of the plaintiff's failure to pay costs. The Court has an option to dismiss the suit in such a case. Rule 3 is another mode where neither of the parties appears before the Court. In such a case the Court has an option again to dismiss the suit. The consequence of dismissal of the suit either under Rule 2 or Rule 3 is provided for by Rule 4 of Order IX. Where a suit is dismissed under Rule 2 or Rule 3, as the case may be, the plaintiff has an option to bring a fresh suit or apply for an order to set aside the dismissal, in which case he must satisfy the Court that there was sufficient cause for his failure to serve writ of summons or for his non-appearance, as the case may be. Rule 5 provides for another situation where the Court has an option to dismiss a suit, where after the writ of summons sought to be served on the defendant is returned unserved and the plaintiff fails to apply for fresh summons. The consequence of such dismissal is provided under sub-rule 2 of Rule 5, namely, that the plaintiff may (subject to the law of limitation) bring a fresh suit. The procedure where only the plaintiff appears in the different contingencies, namely, (i) where the summons is duly served, (ii) when the summons is not duly served, and (iii) when the summons is served but not in due time, is provided for in Rule 6. The procedure where only the defendant appears and the plaintiff does not appear when the suit is called on for hearing is provided for in Rule 8. The procedure where only the defendant appears and the plaintiff does not appear when the suit is called on for hearing is provided for in Rule 8. Rule 8 provides that in such a case 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 is empowered to pass a decree upon such admission and where only a part of the claim is admitted, to dismiss the suit so far as it relates to the remainder. Where the suit is wholly or partly dismissed under Rule 8, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action but he may apply to the Court for setting aside the order of dismissal, in which case he must satisfy the Court that his non-appearance, when suit was called on for hearing, was due to a sufficient cause. In such a case, the Court shall make an order setting aside the dismissal upon such terms as it may deem fit and appoint a day for proceeding with the suit. 21. A learned Single Judge of this Court in the case of PrashantVagaskar v/s Municipal Corporation of Greater Bombay (2002(4) Bom. C.R. 363) was faced with a situation where in a suit, which was adjourned from time to time, the Court declined to accept a request for adjournment sought on behalf of the Plaintiffs on the ground that none of the Plaintiffs, except Plaintiff No.2, was present before the Court on that day and that Plaintiff No.2 was not ready with the evidence. All the Plaintiffs were, however, represented by Counsel on that day when this request was made. The learned Counsel for the Plaintiffs, though present, in the above situation, did not take any steps to proceed with the suit. The Court treated this attitude on the part of the Plaintiffs as an attempt to protract the trial of the suit. The Court, in the premises, proceeded to dismiss the suit. The dismissal order was challenged in the appeal before the learned Single Judge. The substantive question which needed consideration in PrashantVagaskar's case (supra) by the learned Single Judge was : Whether mere physical presence of a litigant is sufficient for the purposes of prosecuting a suit? The Court, in the premises, proceeded to dismiss the suit. The dismissal order was challenged in the appeal before the learned Single Judge. The substantive question which needed consideration in PrashantVagaskar's case (supra) by the learned Single Judge was : Whether mere physical presence of a litigant is sufficient for the purposes of prosecuting a suit? The Court in PrashantVagaskar's case analyzed the provisions of Order XVII Rules 1, 2 and 3 as well as Order IX Rules 8 and 9. The Court held that Rule 2 of Order XVII only applied when one or both of the parties did not appear on the day fixed for the adjourned hearing. The Court noted that in that event, the Court is thrown back to Order IX with the additional power to make “such order as it thinks fit”. The Court noted that it was clear that the last words of the Rule confer a discretion on it, but such discretion must be exercised judiciously. A Judge exercising such discretion, noted the Court, may grant further adjournment if the circumstances justified on merits, but he should have material before him to justify that course. In this backdrop of the facts of that case and the analysis of the provisions, this Court held in PrashantVagaskar's case (supra) as under : “When the plaintiffs were found to be not ready with their evidence, can it be said that the trial Court was justified in treating the mere physical presence of the litigant as appearance for the purposes of prosecuting the suit. This point has been elaborately dealt with by some of the High Courts in India like those in Manannisa vs. Ramkalpa Gorain (1907) ILR 34 Cal. 235, Satishchandra vs. Ahana Prasad, (1907) ILR 34 Cal 403 (F.B.), Lalji Sahu vs. Lachmi Narain, AIR 1918 Patna 351. In all these cases, it has been uniformly held that appearance (mere presence) does not mean physical presence of the party concerned, but appearance must be purposeful for the purpose of prosecuting the case or suit pending in the Court. In other words, appearance/presence should be for the purposes of taking part in the proceeding and that it includes preparedness to cite evidence and/or to produce documents or to take any step for disposal of the suit/case as may be considered necessary. In other words, appearance/presence should be for the purposes of taking part in the proceeding and that it includes preparedness to cite evidence and/or to produce documents or to take any step for disposal of the suit/case as may be considered necessary. Therefore, if a party to a suit for some reason or other is precluded from being ready to take part in the prosecution of the suit but somehow manages to come with a view that the case should be got adjourned for some other day, his appearance in such a circumstance will not amount to an appearance as contemplated under Order 17, Rule 2 of Civil Procedure Code. In this view of the matter, the appearance of the plaintiff on 30-8-2001 was no appearance for the purpose of the suit.” 22. This Court in PrashantVagaskar's case (supra) referred to the view of the Full bench of Calcutta High Court in SatishChandra Mukerjee Vs. Ahara Prasad Mukerejee (1907) ILR 34 Cal. 403). In that case, referring to the term 'appearance', the Full Bench of Calcutta High Court had noted as follows:- “The term 'appearance' is nowhere defined in the Code and as pointed out by Benson, J. in Seeley V. Evans (1838-19 Wendell 459) has several significations the word must always be understood in reference to the particular subject matter to which it relates and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case. It seems to me that having regard to the scope of section 556 of the Civil Procedure Code and the object to be gained by the attendance or appearance of the appellant on the day fixed for the hearing of the appeal the mere appearance of the counsel to make an application for adjournment ought not to be treated as appearance so as to oust the application for adjournment ought not to be treated as appearance so as to oust the jurisdiction under section 558 of the Civil Procedure Code, if proper cause is shown. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party. I do not feel much pressed by the reference made to the case in which evidence may have been taken and which has been partially argued.” 23. After considering various authorities on the point, Court in PrashantVagaskar's case came to the following conclusion:- “22. In this view of law, therefore, mere fact that the plaintiff No.2 was present in the Court at the time when the suit was called for dismissal on 30-8-2001, cannot on the facts of this case, provide for any valid ground for holding that the plaintiffs were present in the Court and in spite of that, they defaulted in taking part in proceedings or were guilty of by-passing the Court. In the facts and circumstances, the plaintiffs were justified in praying for adjournment and, therefore, in my opinion, the Court below was wrong in refusing to grant adjournment, merely on the technical ground that one the plaintiffs was physically present in the Court and was not ready to proceed with the suit. 23. The Code of Civil Procedure has been designed to facilitate fair trial of the suits. It is not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of provisions that leaves no room for reasonable elasticity of interpretation should therefore be guarded against: (provided always that justice is done to 'both' sides) least the very means designed for the furtherance of justice be used to frustrate it.” 24. The view expressed by this Court in PrashantVagaskar's case was later followed by atleast three learned Single Judges of this Court in the cases of ShriSubhash Mataji Pulate vs. Smt. Laxmibai Somaji Khillare (2005(3) ALL MR 828) (Per B.P. Dharmadhikari, J.), M/s. Devidayal Sales Pvt. Ltd. vs. The State Trading Corporation of India & Anr. (Notice of Motion No.4424/07 in Suit No.725/79 decided on 25 February 2009) (Per A.A. Sayed, J.) and BhalchandraGanesh Naik & Anr. vs. Sona Hotel (2009(3)Bom.C.R.780) (Per Pangarkar C.L.,J.). 25. In the case of SubhashMataji Pulate, this Court was concerned with a case where the Plaintiff failed to adduce evidence and prove her contention. The facts were similar to the facts of the present case. The suit was dismissed for want of prosecution. vs. Sona Hotel (2009(3)Bom.C.R.780) (Per Pangarkar C.L.,J.). 25. In the case of SubhashMataji Pulate, this Court was concerned with a case where the Plaintiff failed to adduce evidence and prove her contention. The facts were similar to the facts of the present case. The suit was dismissed for want of prosecution. An application for setting aside the dismissal order was filed by the plaintiff. The ground urged was that when the suit was fixed for evidence, talks regarding compromise had taken place between the parties and as such the plaintiff could not lead evidence in the suit. This Court in SubhashMataji Pulate's case noted that when the order of dismissal was passed, though the plaintiff as also defendants were present, their purpose was only to obtain adjournment in view of the talks of compromise going on between the parties. They were not appearing before the Court for the purposes of prosecuting further their suit. The Court in this context considered the judgment of this Court in PrashantVagaskar's case (supra) and treated the case as one in which the parties were absent. 26. The next judgment is that of a learned Single Judge in the case of M/s. Devidayal Sales Pvt. Ltd. (supra). That case also was an application on behalf of the plaintiff for restoration of the suit which was dismissed for non-prosecution. On the day when the matter was called out in that case the deponent, who had affirmed the affidavit in support of the Motion and who was a Junior Advocate, had appeared for the plaintiff and sought adjournment on the ground that the plaintiff's Counsel was hospitalised earlier and was advised bed rest. The Court was not inclined to adjourn the matter. The matter was finally kept back but ultimately dismissed for want of prosecution in the afternoon session. On the application for setting aside the order of dismissal, the learned Single Judge after considering the provisions of Order XVII Rule 2, of the Code of Civil Procedure 1908 and relying upon the decision of this Court in PrashantVagaskar's case (supra), allowed the application for restoration. On the application for setting aside the order of dismissal, the learned Single Judge after considering the provisions of Order XVII Rule 2, of the Code of Civil Procedure 1908 and relying upon the decision of this Court in PrashantVagaskar's case (supra), allowed the application for restoration. In the course of his judgment, the learned Single Judge of this Court also noted the High Court amendment of Andhra Pradesh adding an explanation to Order XVII Rule 2 to the effect that the mere presence in Court of a party or his Counsel not duly instructed shall not be considered to be an appearance of the party. Having regard to the material adverted to above, the learned Single Judge in DevidayalSales Pvt. Ltd. (supra) came to the conclusion as follows:- “15. Thus, the presence of a Counsel has to be an effective presence, not mere physical presence. The Counsel should be ready with the matter and be able to assist the Court. The appearance of a Counsel who has instructions only to apply for an adjournment or to have the matter kept back cannot be considered as an appearance at all in the context of Order 17 Rule 2 or Order 9 Rule 8 of Code of Civil Procedure. If one peruses the Vakalatnama, it ordinarily mentions the words “act appear and plead” for and on behalf of the party. The appearance of a Counsel who is not able to or unwilling to plead the cause of his client can hardly be termed as an appearance. It may be mentioned that it has become a matter of routine and everyday practice in this Court to let juniors appear and seek adjournments or have the matter kept back and many a times they are not even aware about the subject matter. Their presence cannot be termed as their “appearance” for the purposes of Order 17, Rule 2.” 27. Another learned Single Judge of this Court in the case of BhalchandraG. Naik (supra) on a consideration of the relevant applicable rules under Order XVII and Order IX held as follows:- “Be that as it may, the effect of the order as earlier said is one of the dismissal of the suit. Another learned Single Judge of this Court in the case of BhalchandraG. Naik (supra) on a consideration of the relevant applicable rules under Order XVII and Order IX held as follows:- “Be that as it may, the effect of the order as earlier said is one of the dismissal of the suit. The application under Order IX, Rule 9 can be said to be maintainable because of the fact that the order could be said to be the one falling under Rule 3(b) of Order 17 as a very insignificant part of the evidence of the plaintiffs was recorded and the plaintiff was absent. When the case falls under Rule 3(b) one has to necessarily revert back to Order 17, Rule 2. If one has to revert back under Order 17, Rule 2 necessarily one has to make an application under Order IX, Rule 9 for restoration of the suit. Therefore, an application as filed by the plaintiffs/appellants was quite tenable. The following decisions lay down the same proposition. A.I.R. 1943 Bom. 321, (Basalingappa Vs. Shidramappa) and 2004(1) Bom.C.R. 242 (S.C.) : 2003(5) S.C.C. 641 , (B. Janakiramaigh Chetty Vs. A.K. Parthasarthi & others).” 28. The authorities discussed above make it clear that in the event a party, though appearing through an Advocate, is unable to proceed with the hearing of the suit due to inability to lead evidence on the date of adjourned hearing (after time was granted by a Court to produce evidence) and the Court dismisses such a suit for non-prosecution, the Court effectively proceeds as though the party was absent and therefore invokes the provisions of Rule 3(b) of Order XVII of the Code of Civil Procedure. The Court in such a case exercises its option to proceed under Rule 2 of Order XVII and passes an order in one of the modes provided in that behalf by Order IX. The relevant modes in this behalf are the modes of dismissal of a suit either under Rule 3 of Order IX where neither party appears or under Rule 8 where only defendant appears. In either of the two cases, the plaintiff, who suffers dismissal of a suit as a result, has an option to apply for restoration of the suit under Rule 4 of Order IX or Rule 9 of Order IX, as the case may be. 29. In either of the two cases, the plaintiff, who suffers dismissal of a suit as a result, has an option to apply for restoration of the suit under Rule 4 of Order IX or Rule 9 of Order IX, as the case may be. 29. There is one more reason why such dismissal cannot be considered to be an order under Rule 3(a) of Order XVII. Clause (a) of Rule 3 contemplates a decision of the suit on merits. For such a decision to be rendered there must be some evidence on record which enables the court to decide the suit. If there is no evidence on record, the court cannot proceed to decide the suit. The only other option, under Rule 3, is recourse to clause (b) of that Rule, namely, to proceed under Rule 2 of Order XVII. Under Rule 2, the court may pass any of the orders which can be passed in the absence of a party or parties (the modes provided by Order IX) or grant time to the plaintiff (such other order as it may think fit). In PrakashManchanda’s case the Supreme Court considered the case of closure of the defendant’s evidence due to absence of his witnesses. After such closure, arguments of the plaintiff were heard and a decree was passed. The defendant applied for setting aside the ex-parte decree. The application was disposed of by the trial court holding that the case was disposed of not in accordance with Order XVII Rule 2 but in accordance with Order XVII Rule 3 and therefore the application under Order IX Rule 13 was not maintainable. The Supreme Court allowed the appeal holding that the trial court could not have proceeded to dispose of the suit on merits and the application under Order IX Rule 13 was maintainable. This is what the Supreme Court had to say: “It is clear that in cases where a party is absent the only course as mentioned in Order 17 Rule 3 (b) is to proceed under Rule 2. It is therefore clear that in absence of the defendant, the court had no option but to proceed under Rule 2. This is what the Supreme Court had to say: “It is clear that in cases where a party is absent the only course as mentioned in Order 17 Rule 3 (b) is to proceed under Rule 2. It is therefore clear that in absence of the defendant, the court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as it now stands also clearly lays down that if any one of the parties fails to appear, the court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure. It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy.” 30. The decision of the Supreme in PrakashManchanda's case is a clear authority for the proposition that if on a date fixed, one of the parties remains absent and for that party no evidence has been examined upto that date, the Court has no option but to proceed in accordance with Order XVII Rule 2 in any one of the modes prescribed under Rule 9 of the Code of Civil Procedure. Having regard to the judgment of our Court in PrashantVagaskar's case (supra) and the dicta of the Supreme Court in PrakashManchanda's case (supra) the Court in SubhashMataji Pulate allowed the application under Order IX Rule 9 with the following observations : “11. Having regard to the judgment of our Court in PrashantVagaskar's case (supra) and the dicta of the Supreme Court in PrakashManchanda's case (supra) the Court in SubhashMataji Pulate allowed the application under Order IX Rule 9 with the following observations : “11. In present revision though both the parties were present, it is apparent that they were not ready and willing to go on with the trial of the Suit because of talks of compromise going on between them and also there was no material before the trial Court to enable it to decide the suit on merits as required by Order 17, Rule 3(a) of Civil Procedure Code. Hence, under the circumstances, the impugned order cannot be read as an order under Order 17, Rule 3(a) of Civil Procedure Code. The trial Court has dismissed the suit in default on 21-12-1993 and has correctly entertained the application under Order 9 of Civil Procedure Code and has correctly restored the suit back to file by its judgment dated 22-1-1998.” 31. I must at this stage deal with a few other authorities of our Court cited at the bar. One is a decision of a learned Single Judge of our Court in the case of State Bank of India Vs. M/s. Kumar Apparel Industries (ALL MR 683) and the others are decisions of another learned Single Judge in the cases of ICICI Bank Ltd. Vs. Vikram Seth (2012 (3) LJSOFT 22) and Cotton Corporation of India Ltd. Vs Sree Shanmugar Mills & Anr. (2012 (2) ALL MR 554). 32. In the case of State Bank of India (supra) the Court was concerned with the provisions of Order XIV Rule 1(5) of the Code of Civil Procedure when the matter was posted for framing of issues. The Court noted that it was clear from this rule that though it is for the Court to frame issues, the Court is required to do so after examination under Rule 2 of Order X and after hearing the parties or their pleaders. The Court noted that there could be, and indeed there are suits where the pleadings and documents are voluminous enough for the Court to require Counsel to assist it in framing of issues. The Court noted that there could be, and indeed there are suits where the pleadings and documents are voluminous enough for the Court to require Counsel to assist it in framing of issues. In these circumstances, in a given case if the party is unable to assist the Court through its Counsel to frame issues the Court is well within its rights to dismiss the suit. In that context, the Court observed as follows:- “9. Even otherwise on a plain construction of scheme of Order IX rules 8 and 9 of the Code of Civil Procedure, it is clear that those provisions apply only where the Defendant appears and the Plaintiff does not appear. The phrase 'does not appear' must be given its plain and natural meaning and cannot include a case where advocate appeared as is in this case but cannot or refuses to go on with the matter. It makes no difference if the matter is considered under Order IX rule 3 of the Code of Civil Procedure, which reads as follows: 3. Where neither party appears, suit to be dismissed:- Where neither party appears when the suit is called on for hearing, the Court may take an order that the suit be dismissed. 10. This suit (sic provision?) is also not attracted in the present case since this is not a case where neither party appeared when the suit was called out for hearing. The dismissal of the suit cannot be taken to be one under this rule.” It must be noted that in the case of State Bank of India (supra), none of the earlier authorities including the judgment of our Court in the case of PrashantVagaskar (supra) was cited before the Learned single Judge. So also the decision of the Supreme Court in the case of PrakashManchanda (supra) was not cited before the learned Single Judge. The learned Single Judge came to the conclusions set out above in paras 9 and 10 of his judgment on construction of the scheme of Order IX Rules 8 and 9 without reference to the law laid down by our Court in the cases cited above. 33. The learned Single Judge came to the conclusions set out above in paras 9 and 10 of his judgment on construction of the scheme of Order IX Rules 8 and 9 without reference to the law laid down by our Court in the cases cited above. 33. In the case of ICICI Bank Ltd. (supra) and Cotton Corporation of India Ltd. (supra), a learned Single Judge of this Court (Roshan Dalvi J., in both the cases) came to a conclusion that to a dismissal of a suit for non-filing of affidavit of evidence the provisions of Order IX do not apply and an application for setting aside the dismissal does not lie under Order IX in such a case. None of the earlier judgments, including the judgments of four Single Judges of our Court, which have extensively discussed the law on the point, starting from the case of PrashantVagaskar (supra) to the case of BhalchandraG. Naik (supra) was either cited or considered by the learned Single Judge in the case of ICICI Ltd. and Cotton Corporation of India Ltd. (supra). 34. The decisions of the two learned Single Judges of our Court in State Bank of India, ICICI Bank and Cotton Corporation of India were rendered per incuriam since they did not consider the decisions of coordinate jurisdiction of our Court as noted above. 35. Having regard to the case law discussed above, including the four judgments of learned Single Judges of this Court, which have held that appearance of advocate without readiness to proceed with the matter is no presence of the party and the judgment of the Supreme Court in PrakashManchanda's case (supra), which clearly goes on to hold that if on a given date one of the parties remains absent and there is no evidence on record, the Court has no option but to proceed under Order XVII Rule 2 in any one of the modes prescribed under Rule 9 of the Code of Civil Procedure, I hold that an application for restoration of the suit dismissed for non-prosecution due to the plaintiff’s inability to lead evidence on the particular day is maintainable under Order IX Rule 4 or Rule 9, as the case may be. 36. The application for restoration in the present case may actually be treated as an application under Order IX Rule 4, as both the parties can be said to be absent. 36. The application for restoration in the present case may actually be treated as an application under Order IX Rule 4, as both the parties can be said to be absent. The Plaintiff was not present for the reasons noted above and the Defendant was admittedly absent. The application is clearly maintainable. 37. On the question of merits of the present application, it is alleged by the Plaintiff that on the date of dismissal of the suit on 18 February 2011 the Plaintiff was away from the City and could not remain present for leading of evidence though his affidavit of evidence was ready, having been affirmed on 29 April 2010. I have perused the affidavit of evidence in lieu of examination-in-chief of the Plaintiff tendered by learned Counsel for the Plaintiff. The affidavit was indeed affirmed on 29 April 2010. Having regard to the averments in the affidavit in support of the Notice of Motion and after perusal of the affidavit of evidence, I am of the view that this is a fit case where the Notice of Motion should be allowed and the order of dismissal of the suit dated 18 February 2011 should be set aside. 38. Having regard to the discussion, I pass the following order: ORDER (i) Notice of Motion is made absolute in terms of prayer clause (a). (ii) The delay, if any, is condoned. (iii) The affidavit of evidence in lieu of examination-in-chief of the Plaintiff dated 29 April 2010 tendered by the learned Counsel for the Plaintiff is taken on record. (iv) The compilation of documents together with the affidavit of documents tendered by Counsel for the Plaintiff is taken on record. (v) The suit is transferred to the Bombay City Civil Court for trial. (vi) The Plaintiff shall pay the cost of this application quantified at Rs. 50,000/- to Defendant No.1. (vii) On the application of the learned Counsel for Defendant No.1 the order is stayed for a period of six weeks from today.