K. Venkatrama Naidu (died) per L.Rs. vs State of Andhra Pradesh and Others

Ramesh Madhav Bapat, J.—The petitioners herein were the original plaintiffs in O.S. No. 129 of 1984 and O.S. No. 53 of 1982 respectively pending on the file of the Prl. Subordinate Judge, Chittoor. The respondents herein were the defendants.

C.R.P. No. 3724 of 1994 arises out of the judgment passed in CM. A. No. 42 of 1992 on the file of the District Judge, Chittoor, which arises out of LA. No. 699/88 in O.S. No. 129 of 1984.

CR.P. No. 3779 of 1994 arises out of the judgment passed in C.M.A. No. 43 of 1992 on the file of the District Judge, Chittoor, which arises out of LA. No. 700/88 in O.S. No. 53 of 1982.

The suits filed by the petitioners herein were dismissed. Against the said orders, the petitioners herein preferred two Interlocutory Applications i.e., I.A. No. 699/88 in O.S. No. 129/84 and I.A. No. 700/88 in O.S. No. 53 of 1982 respectively in the Court of the Principal Subordinate Judge, Chittoor. Both the I.As., alleged to have been filed under Order IX Rule 9 C.P.C. to set aside the orders of dismissal. Both the I.As., were dismissed by the Principal Subordinate Judge, Chittoor. Against the said orders, the above said C.M.A.Nos.42 and 43 of 1992 were filed and they were disposed of by the learned District Judge, Chittoor by a common order and therefore these two CR.Ps., are also disposed of by a common order.

The brief facts leading to the above litigation can be narrated as follows: That one K. Venkatrama Naidu plaintiff in O.S. No. 129 of 1984 filed this suit seeking to set aside the order of the Government of Andhra Pradesh made in Memo No. 3726/B2/72 dated 11-7-1975 directing assignment of Ac.3-29 cents of the plaint schedule property to the 2nd defendant and for costs. He had also filed another suit O.S. No. 53 of 1982 seeking the order of injunction restraining the defendants 2 to 7 by way of permanent injunction from alienating the plaint schedule properties. Both the suits were part heard and when the plaintiff in both the suits was present but did not proceed with the trial of the cases and hence the suits filed by him were dismissed by the learned Judge. The plaintiff i.e., K. Venkatrama Naidu preferred I.A. No. 699 of 1988 in O.S. No. 129/84 and I.A. No. 700/88 in O.S. No. 53 of 1982 on the file of Principal Subordinate Judge, Chittoor under Order IX Rule 9 C.P.C. seeking to set aside the orders of dismissal dated 22-7-1988 passed against him and to restore the suits. These I.As., were dismissed by the learned Judge and hence CMA.Nos.42 and 43 of 1994 were preferred. Both the C.M.As., were dismissed and hence the revisions.

Considering the facts as stated above, the point arises for consideration whether the orders passed by the learned Judge dismissing the suits are the orders under Order IX Rule 8 C.P.C. or they are the orders under Order XVII Rule 2 C.P.C. or they are the orders under Order XVII Rule 3 C.P.C

As stated in the foregoing paras of the order, the petitioners i.e., the plaintiffs started leading evidence in the lower Court. In other words, both the suits were part heard and the plaintiffs side was being heard by the learned Judge. On the date of dismissal though the original plaintiff was present in the Court, refused to lead evidence on the ground that his Advocate was not present and the suits involved complicated questions of facts and law. The learned Judge did not accept the contention of the original plaintiff and the suits were dismissed.

We have now to see as to whether the aforesaid orders of dismissal come under the purview of Order IX Rule 8 C.P.C. Order IX Rule 8 C.P.C. reads as follows:

"Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, 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 shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."

By reading the Order IX Rule 8 C.P.C., it is evident that after the formalities of issuing summon, etc., on the defendant are completed and on the defendant filing the written statement and if the matter is posted for leading the evidence of the plaintiff and the plaintiff does not appear, the Court has dismissed the suit. In that event, the only remedy open for the plaintiff to file an application under Order IX Rule 9 C.P.C. to set aside the order of dismissal. The fresh suit is totally barred.

Now we proceed to see what are the provisions in Order 17 Rules 2 and 3 C.P.C. Those provisions are extracted as under:

"2. 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. 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."

It is evident that Rule 2 of Order 17, C.P.C. will come into play when the suit is fixed on a particular day for appearance of the parties; if the plaintiff remains absent, the Court is at liberty to pass an order under Order 9 C.P.C. dismissing the suit of the plaintiff, whereas Order 17 Rule 3 C.P.C. speaks about when the Court calls upon the plaintiff to produce the evidence and the plaintiff fails to produce evidence. In that event Rule 3 of Order 17 C.P.C. will come into operation. As stated above, in the present case, the original plaintiff i.e., Sri K. Venkatrama Naidu, had led partial evidence. The docket order shows that on 20-4-1988 the original plaintiff late K. Venkatrama Naidu filed a petition to send for the documents from the District Collector''s Office, Chittoor. The said prayer appears to have allowed. The matter was posted on 22-7-1988 for leading the evidence of the plaintiff. It appears that the plaintiff requested the Court to take up the trial of the suit after lunch since his counsel wants to peruse the records from the District Collector''s Office, Chittoor. The said prayer appears to have been granted. Again the matter was called out after lunch. At that time, the Counsel for the plaintiff and the original plaintiff did not come to peruse the record. After lunch the suit was called again. The original plaintiff was directed to bring his Counsel. On the same day, the original plaintiff represented the Court that his Counsel was engaged in another suit and therefore the learned Judge took up the trial of another suit. Again at 4-00 p.m. the original plaintiff was called upon to call his Counsel. At that time the Counsel''s clerk represented that his Counsel has gone home. At 4-45 p.m. the original plaintiff was directed to bring his Counsel. At that time the clerk of the Counsel represented that his Counsel had gone home and not likely to return. In those circumstances, the original plaintiff was called to adduce further evidence, but the original plaintiff refused to do so and therefore both the suits came to be dismissed.

Looking to the chronological events as stated above, it is evident that the original plaintiff and his Counsel were not ready to adduce the further evidence. In fact, the Court held that the plaintiff has no further evidence to lead and since there is no evidence on behalf of the original plaintiff to substantiate his claim, the suits came to be dismissed. In such circumstances, it must be held that the suit was dismissed by the learned Judge on is merits. In that event, it cannot be said that the suit was dismissed in default of the original plaintiff and therefore this Court has no hesitation in holding that the application for setting aside the order of dismissal under Order 9 Rule 9 C.P.C. would not lie. The only remedy open for the original plaintiff to file an appeal under Order 41 C.P.C. before the proper forum. Therefore, this Court holds that the learned Judge rightly dismissed the I.As., which were filed under Order 9 Rule 9 C.P.C.

The learned Counsel for the petitioners herein invited my attention to a ruling reported in Rafiq and Another Vs. Munshilal and Another, in which it was held that "party should not suffer for misdemeanour or inaction of his Counsel." Considering the facts as stated in the body of the order, their Lordships were pleased to set aside the order of dismissal and costs were levied on the Advocate, who defaulted in representing his client. This Court holds that the facts stated in the above case are not applicable in the present set of facts. The learned Counsel for the petitioners herein himself has taken through the chronological order of events which occurred on the date of dismissal. It is evident from the docket order that right from the morning till evening all the opportunities were given, to the original plaintiff as well as to his Counsel in order to accommodate them in all respects. The Advocate with perverse attitude did not appear before the Court with a prayer to adjourn the matter for sound reasons. He went away out of the Court even without informing the Court by leaving the plaintiff all alone in the Court to face the music. Such attitude of the Advocate is deprecated by this Court. The original plaintiff and his advocate probably thought that the Courts are totally helpless and they cannot do anything in the matter. The Counsel representing the original plaintiff in the lower Court and the original plaintiff himself thought that the adjournment is as a matter of right which is not so in law.

The learned Counsel for the respondents herein had pointed out that in the earlier C.R.P. filed by the present petitioners herein, this Court had directed for expeditious hearing of the original suits. Even the order of the High Court for expeditious hearing was in force, the petitioners herein were trying to protract the proceedings.

The learned Counsel for the petitioners herein invited my attention to the Andhra Pradesh High Court Amendment to the proviso (sic. Explanation) of Order 17 Rule 2, C.P.C. which reads as follows:

"The mere presence in the Court of a party or his Counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of this Rule."

With this amendment it was submitted by the learned Counsel for the petitioners herein that the original plaintiff was present in the Court. The Advocate was not there and therefore the matter ought to have been adjourned.

I am inclined to accept the (said) proposition as stated in the foregoing paras of the order that it was an intentional act on behalf of the original plaintiff and his Counsel to protract the proceedings and harass the defendants-respondents. Such attitude cannot be encouraged by the Court.

It can be seen from the judgment of the appellate Court that the Appellate Court rightly held that the applications under Order 9 Rule 9 C.P.C. will not lie. The petitioners herein ought to have filed an appeal and therefore on technical grounds the learned District Judge dismissed both the C.M.As.

It further appears from the judgment of the learned District Judge in both the C.M.As. that he also considered the facts alleged in the appeals on their merit, though he was not required to do so and held that there are no merits in the facts for restoring the suits of the original plaintiff on file.

Considering the above position of law and facts, this Court holds that the learned District Judge rightly dismissed both the C.M.As. No interference is required at the hands of this Court while exercising the revisional jurisdiction. Hence, both the Civil Revision Petitions are dismissed with costs.