Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1394 (GAU)

Neelav Chaliha v. Ditul Das

2018-09-18

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. Heard Ms. B. Chowdhury, the learned counsel appearing for the appellant as well as Mr. P. Medhi, the learned counsel appearing for the respondents. 2. By this appeal under Order XLIII Rule 1(c) CPC, the appellant has challenged the order dated 19.05.2017, passed by the learned Civil Judge No. 3, Kamrup (Metropolitan), Guwahati in Misc.(J) Case No. 289/2016, arising out of Money Suit No. 257/2015, thereby rejecting the prayer made by the appellant under Order IX Rule 9 CPC for restoration of the proceedings of Money Suit No. 257/2015 to file. 3. The learned counsel for the appellant has submitted that the appellant had filed a summary suit for recovery of a sum of Rs. 50,00,000/- (Rupees Fifty lakh only) from the respondents. The appellant had taken steps for service of notice on the respondents in the suit and accordingly, the respondents had entered appearance in the suit on 11.12.2015. It is submitted that the appellant-plaintiff had remained unrepresented before the learned trial Court on 11.12.2015, 07.01.2016, 10.02.2016, 02.03.2016 and on 02.05.2016 and therefore, on 02.05.2016, the suit was dismissed for non-prosecution. It is submitted that on 02.05.2016, the date on which the suit was dismissed for non-prosecution, the learned counsel for the appellant had remained absent as she was out of station. By referring to the Cause-list of this Court dated 02.05.2016, it is submitted that the counsel was on leave from 25.04.2016 to 15.05.2016. It is further submitted that there was an error in noting of the case in the diary which led to the non-appearance of the counsel before the learned trial Court. In support of the submissions made by the learned counsel for the appellant has relied on the cases of (1) Lalta Prasad and Anr. Vs. Ram Karan, Manu/UP /0045/1912 and (2) Aman Alli Saheb Vs. K. Venkata Rama Suryanarayana Subba Raju, Manu/AP/00454/1984. 4. The respondents herein had filed their written objection in respect of the said application filed under Order IX Rule 9 read with Section 151 CPC. The learned trial Court, by impugned order dated 19.05.2017 had concluded that as the appellant had remained absent without steps on 11.12.2015, 07.01.2016, 10.02.2016, 02.03.2016 i.e. prior to 02.05.2016, the appellant had failed to assign cause for his previous absence. The learned trial Court, by impugned order dated 19.05.2017 had concluded that as the appellant had remained absent without steps on 11.12.2015, 07.01.2016, 10.02.2016, 02.03.2016 i.e. prior to 02.05.2016, the appellant had failed to assign cause for his previous absence. Moreover, the learned trial Court had held that the statement about the absence on 02.05.2016 was contradictory to the statement that there was a wrong entry in the diary and for these two reasons, the application under Order IX Rule 9 CPC was rejected. Hence, it is submitted by the learned counsel for the appellant that as the appellant had not been able to show good cause for non-appearance of the counsel on the date when the suit was dismissed for non-prosecution, this was a fit case for interference with the order impugned in this appeal. 5. Per contra, the learned counsel for the respondents has opposed this appeal and it is submitted that as per the orders passed by the learned trial Court, upon appearance made by the respondents in the suit on 11.12.2015, direction was passed by the learned trial Court to the appellant to serve summons for judgment as per the provision of Order XXXVII Rule 4 CPC. Therefore, on the failure of the appellant to take appropriate steps in terms of the said order dated 11.12.2015, coupled with the fact that the counsel had remained absent on call for the suit on five dates mentioned hereinbefore, the order of dismissal of the suit as well as the order passed on an application under Order IX Rule 9 CPC cannot be faulted with. 6. Having heard the learned counsel for both sides, two things is required to be dealt with. First question arises in view of the decision of this Court in the case of Nazrul Islam Borbhuiya Vs. Yakub Ciddikie, (2006) 3 GauLT 828 . In the said case, examining the scope of Order IX Rule 9 CPC, this Court, by following the ratio laid down in the case of Rahimuddin Sheikh and Ors. Vs. Sarifan Nesa and Ors., (1954) AIR Gauhati 92 and Biswanath Nagnath Andage Vs. Yakub Ciddikie, (2006) 3 GauLT 828 . In the said case, examining the scope of Order IX Rule 9 CPC, this Court, by following the ratio laid down in the case of Rahimuddin Sheikh and Ors. Vs. Sarifan Nesa and Ors., (1954) AIR Gauhati 92 and Biswanath Nagnath Andage Vs. Mahadeo Sultanappa Waghmode, (1964) AIR Bombay 40, held that even when a suit was dismissed for non-prosecution, the Order IX rule 9 CPC would have no application if the date of hearing had not been fixed or if the same had not been notified to the plaintiff and that an application for restoration of such a suit would fall under the scope of Section 151 of the Code. Nonetheless, it was held that as the source of jurisdiction/power is traceable, the fact that a party had invoked a wrong provision of law or jurisdiction cannot be a ground for non-suiting him and the same cannot prevent a competent Court of jurisdiction from exercising such jurisdiction/power to grant appropriate relief. 7. The second point which arises in this application is that when the suit was dismissed for non-prosecution vide order dated 02.05.2016, whether the appellant is required to satisfy the Court as regards the previous non-appearance of the counsel. In this connection, this Court is of the view that a satisfactory explanation is only required to be given for the date on which the counsel had not appeared and on which date, the suit was dismissed for non-prosecution. In that respect, it is seen that the appellant has been able to demonstrate that on 02.05.2016, when the suit was dismissed for non-prosecution, the counsel was on leave and the name of the counsel is reflected in the Cause-list dated 02.05.2016 of this Court in the letter of absence column. As the previous conduct of the appellant on the previous dates was already condoned by the learned trial Court by not dismissing the suit on the previous dates even when the appellant was found absent on call. The conduct of the appellant on the previous dates cannot be examined for the purpose of restoration of the suit which was dismissed for default on 02.05.2016, as good and sufficient cause was shown for nonappearance on that date. 8. The conduct of the appellant on the previous dates cannot be examined for the purpose of restoration of the suit which was dismissed for default on 02.05.2016, as good and sufficient cause was shown for nonappearance on that date. 8. Under the circumstances, the learned trial Court is found to have committed a jurisdictional error to rely on the previous conduct of the counsel in the suit because the said conduct of the appellant for remaining absent on call was not under scrutiny of the learned trial Court on 02.05.2016. 9. Therefore, following the ratio laid down by this Court in the case of Nazrul Islam Borbhuiya, it is held that the learned trial Court could have exercised powers under Section 151 CPC, notwithstanding the application made under Order IX Rule 9 CPC and moreover, having seen that the non-appearance of the appellant on 02.05.2016 has been satisfactorily explained, this Court is inclined to set aside the impugned order dated 19.05.2017, passed by the learned Civil Judge No. 3, Kamrup (Metropolitan), Guwahati. 10. Accordingly, the proceedings of Money Suit No. 257/2015 stands restored to the file of the Court of learned Civil Judge No. 3, Kamrup (Metropolitan), Guwahati. However, for dragging the respondents to the Court to defend this appeal, this Court is inclined to impose a cost of Rs. 2500/- (Rupees two thousand five hundred only) on the appellant, which should be deposited before the learned trial Court for onward payment to the respondents-defendants. Such cost shall be deposited on the next date fixed before the learned trial Court. 11. Both sides, who are duly represented by their learned counsel are directed to appear before the Court of learned Civil Judge No. 3, Kamrup (Metropolitan), Guwahati on 10.10.2018, without any further notice of appearance and if the said date is a non-working day in the Court, on immediate next working date and by producing a certified copy of the order of this Court, the parties shall seek further instructions from the said learned Court.