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2018 DIGILAW 998 (MP)

Sushila Sharma v. Sunil Malviya

2018-12-04

SUBODH ABHYANKAR

body2018
ORDER : 1. This civil revision under Section 115 of CPC has been filed by the defendant/applicant against the order dated 16.04.2018 passed by the learned Fifth Additional Judge to the Court of First Additional District Judge, Bhopal in M.J.C. No.268/2017 whereby the learned Judge of the Trial Court has allowed the application of the plaintiff/non-applicant filed under Order 9 Rule 9 of CPC for restoration of Civil Suit No.376-A/2011 which was dismissed for want of prosecution by invoking proviso to Rule 1 of Order 17 of CPC on 28.02.2017 as the non-applicant/plaintiff had already availed more than three adjournments by that date. 2. In brief the facts of the case are that the plaintiff had preferred the civil suit on 11.07.2011 for specific performance of contract dated 29.06.2009 as also for permanent injunction against the defendant/applicant. In the aforesaid suit, after the notices were served on the defendant, written statement was also filed by her and the issues were framed on 23.08.2013. 3. The case of the applicant/defendant is that despite many opportunities granted to the plaintiff/non-applicant, he failed to adduce his evidence and lastly on three occasions, namely, 30/6/2016, 08/08/2016 and 10/02/2017 the adjournments were granted to the plaintiff to adduce the evidence on cost and on 28.02.2017 when the plaintiff was required to adduce his evidence, instead of giving evidence, an application under Order 17 Rule 1 of CPC was filed for adjournment of the case and the Trial Court vide its order dated 28.02.2017 dismissed the suit on account of non-appearance of the plaintiff but in the presence of the counsel for the plaintiff. After the aforesaid suit was dismissed, an application under Order 9 Rule 9 read with Section 151 of CPC was filed by the plaintiff for restoration of the same which was registered as MJC No.268/2017 along with an application under Section 5 of the Limitation Act for condonation of delay in filing the said application. After the aforesaid suit was dismissed, an application under Order 9 Rule 9 read with Section 151 of CPC was filed by the plaintiff for restoration of the same which was registered as MJC No.268/2017 along with an application under Section 5 of the Limitation Act for condonation of delay in filing the said application. In the said application, the plaintiff averred that on 28.02.2017 when the matter was fixed for leading the evidence, he was not in Bhopal and hence he could not mark his presence before the Court, however the intimation regarding dismissal of the suit was given by the counsel for the plaintiff on 22.3.2017 only and as the plaintiff was already indisposed on 20.3.2017, he could not prefer an application for restoration of the suit within 30 days’ time and as such the application was filed after a delay of 06 days. The said application as also the application for condonation of delay was allowed by the learned Judge of the Trial Court vide its order dated 16.04.2018 holding that since the plaintiff has already incurred huge expenses in contesting the suit as he has not only paid an advance amount to the defendant but has also paid court fee of Rs.1,51,000/-towards filing of the suit and as such only on technical grounds the plaintiff cannot be deprived of his right to contest the suit, hence the application for restoration of suit was allowed at the cost of Rs.5000/-. 4. Learned counsel for the defendant/applicant has assailed the aforesaid order and has submitted that the learned Judge of the Trial Court has lost sight of the fact that the plaintiff was not able to show the sufficient cause for not appearing on the date of hearing when the matter was fixed for leading his evidence and only a casual excuse has been put forth that he was not available on the said date in Bhopal. The counsel has submitted that the learned Judge of the Trial Court has lost sight of the fact that the suit was filed in the year 2011 and has been dismissed for want of prosecution/leading evidence by the plaintiff in the year 2017 which in itself is sufficient ground to not to entertain the application for restoration of suit filed by the plaintiff. The counsel has further submitted that the suit was dismissed in the presence of the counsel for the plaintiff and allegedly its intimation was also not given by the counsel in time but there is nothing on record to demonstrate that the plaintiff was not informed in time by his counsel or that he was informed only on 22.03.2017 as submitted by the plaintiff. In support of his contention, the counsel has also placed reliance on the judgment rendered by this Court in the case of Rama Shankar and others vs. Balak Das, reported 2013(4) MPLJ 167 in which it is held that the plaintiff’s honesty and sincerity to remain present in the court have to be seen while dealing with an application for restoration of the suit. 5. Learned counsel for the plaintiff/non-applicant on the other hand has vehemently opposed the revision and has submitted that no illegality has been committed by the learned Judge of the Trial Court. It is further submitted that the plaintiff/non-applicant was prevented to lead his own evidence and his non-appearance was bona fide as he was not present on the said date in Bhopal. It is further submitted that the plaintiff has already incurred huge amount in contesting the suit as he has paid not only the advance amount of Rs.1,00,000/-to the defendant but has also paid Rs.1,51,000/-towards the court fee and has also got the agreement impounded before the Stamp Collector in which also he has spent substantial amount. Thus it is submitted that bona fides of the plaintiff cannot be doubted in the light of the aforesaid expenses incurred by him. It is further submitted that the plaintiff cannot be held responsible for the delay caused in leading the evidence. It is submitted that the revision being misconceived is liable to be dismissed. 6. Heard learned counsel for the parties and perused the record. 7. The question which falls for consideration of this Court is whether the learned Judge of the Trial Court was justified in allowing the application filed by the plaintiff/non-applicant under Order 9 Rule 9 of CPC. 8. 6. Heard learned counsel for the parties and perused the record. 7. The question which falls for consideration of this Court is whether the learned Judge of the Trial Court was justified in allowing the application filed by the plaintiff/non-applicant under Order 9 Rule 9 of CPC. 8. Order 9 Rule 9 provides that such application where a suit has been dismissed for non-appearance of the plaintiff can be entertained if the plaintiff 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 or as it may deem fit. A perusal of the record reveals that a suit was filed by the plaintiff on 11.07.2011 for specific performance of contract dated 29.06.2009 to purchase a plot for a consideration of Rs.29,00,000/-. Towards the aforesaid contract, the plaintiff has also paid an advance of Rs.1,00,000/-to the applicant/defendant, however due to non-performance of the same, the said suit has been filed. It is also a matter of record that the issues in the suit were framed on 23.08.2013 and the matter was fixed for leading the plaintiff’s evidence on 03.09.2013. From 03.09.2013 till 10.02.2017 i.e. for a period of more than three and a half years the plaintiff did not lead his evidence although in the meantime the contract in question was also got impounded by the plaintiff but it was at his instance only and even otherwise the same was received back from the office of District Registrar on 07.07.2015 i.e. more then two years ago. On 10.02.2017 also the time was sought on the ground of illness of the sister of the counsel appearing for the plaintiff and in the aforesaid order dated 10.02.2017, it is observed that the matter is pending since 2011 and on 30.06.2016 and 08.08.2016 the time was granted to the plaintiff at the cost of Rs.200/-and Rs.500/-respectively to lead evidence but neither the evidence was led nor any list of witnesses was filed, hence at the cost of Rs.500/-the matter was adjourned on 10.02.2017 to 28.02.2017 but on 28.02.2017, on which date as already observed above due to non-appearance of the plaintiff the case has been dismissed. In the considered opinion of this Court, mala fide of the plaintiff is writ large on the face of the proceedings. In the considered opinion of this Court, mala fide of the plaintiff is writ large on the face of the proceedings. It is surprising that despite obtaining several opportunities to lead evidence the non-applicant/plaintiff did not lead his evidence even on cost as many as three occasions as mentioned above on 30/06/2016, 08/08/2016 and 10/02/2017. On 28.02.2017 when the impugned order was passed, the plaintiff did not appear to lead his evidence and the reasons assigned for non-appearance that he was not present at Bhopal cannot be said to be justifiable or reasonable looking to the fact that the case was pending before the Civil Court since 2011 and he has already availed many opportunities to lead evidence including three opportunities with cost which shows the mala fide intention of the non-applicant/plaintiff to proceed with the case apparently to gain undue advantage of his dilatory tactics. 9. It is also apparent that the plaintiff would be seeking the execution of the sale deed for consideration of Rs.29.00 lakhs after a period of 10 years, for which the contract was entered into between the parites only in the year 2009. It is anybody’s guess that the valuable property of the contract which took place between the parties on 29.06.2009 for consideration of Rs.29.00 lakhs must have risen substantially and may be by manifolds and by keeping the matter pending before the Trial Court, the plaintiff has already gained the advantage of higher market value of the property. 10. So far as the cost imposed by the Trial Court on the plaintiff is concerned, it was ridiculously low and must have been happily accepted by the plaintiff. In the considered opinion of this Court, the conduct of the plaintiff is deplorable and has caused utter prejudice to the rights of the applicant/defendant. In the considered opinion of this Court, it is a sheer misuse of the process of the Court and the expenses incurred by him until now cannot be ground to condone his action and restore the suit. In the case of Rama Shankar (supra), this Court in para 10 held as under:- “10. In the considered opinion of this Court, it is a sheer misuse of the process of the Court and the expenses incurred by him until now cannot be ground to condone his action and restore the suit. In the case of Rama Shankar (supra), this Court in para 10 held as under:- “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 bona fide on its part.” (emphasis supplied) 11. In view of the same, the impugned order dated 16.04.2018 whereby the plaintiff’s suit has been restored to its original number and he has been allowed to lead further evidence cannot be said to be justified under any provisions of law. 12. Accordingly, the civil revision stands allowed and the 13. This Court also believes that it is necessary to discourage impugned order dated 16.04.2018 is hereby set aside. such unscrupulous litigants hence a cost of Rs.10,000/-(Rupees Ten Thousand) is also imposed on the non-applicant/plaintiff for the aforesaid reasons as mentioned herein above for misusing the process of Court. The said cost shall be paid by the non-applicant/plaintiff to the applicant/defendant within a period of one month from the date of receipt of certified copy of this order in the bank account of the defendant, the details of which shall be provided to the counsel appearing for the plaintiff or the plaintiff himself in the Trial Court.