Kanhaiyalal vs Somwar Bharti

Samvatsar, J.—This revision-application is filed by the defendants against an order of the Civil Judge at Indore restoring the Civil Suit No. 1778 of 1952 under the provisions of Order 9 Rule 9, Civil Procedure Code.

The plaintiff Somwar Bharti filed a suit in the court of the Civil Judge at Indore against the petitioners for possession of certain lands in Motitabela at Indore and for permanent injunction. The suit was filed on 24-12-1952. The defendant did not file any written statement, but objected to the correctness of the boundaries of the land given by the plaintiff. The court therefore ordered the plaintiff to give further particulars of the boundaries of the disputed land. The plaintiff failed to furnish the particulars required, even though some opportunities were given to him. On 13-4-1955 when the case was called for hearing it was found that the plaintiff had not furnished the particulars required. He was also not present. His pleader was also absent. The suit was therefore dismissed.

On 9-5-1955, the plaintiff applied to the court under the provisions of Older 9 Rule 9 C.P.C. to restore the suit. He alleged in the application that on 12-4-1955 be suddenly got ill and was not in a position to move on the date of hearing. He could not therefore remain present in court nor could he Inform the pleader about his illness; that as he was prevented from sudden Illness from attending the court, the suit should be restored and proceeded with.

The application was opposed both on merits and on the technical ground that the order of dismissal of the suit was passed by the court under the provisions of Order 17 Rule 3 and therefore the application to restore it was not competent.

In order to prove that he was ill, the plaintiff examined himself, and the medical practitioner who treated him in that illness, the trial court was satisfied on this evidence that the plaintiff was prevented from attending the court on the date of hearing on account of his illness.

On the other contentions raised, viz. that the present application was not competent, the trial court held that the order of dismissal of the suit was not passed under the provisions of order 17 Rule 3 and restored the suit on payment of 10 rupees costs, Aggrieved by this order, the defendants have preferred this revision-application,

The only point that arises for consideration is whether the order of dismissal of the suit dated 13-4-1955 was an order passed under the provisions of Order 17 Rule 3 C. P.C. and whether the application for restoration was not competent.

Order 17 Rule 5 empowers the court to decide the suit on merits, if a party, whom time has been granted to produce his evidence or to perform any other act necessary for the further progress of the suit fails to do so. The provisions of this order are however permissive and not mandatory and it is open to the court to dismiss the suit for default, even though, it can by reason of the default committed by the plaintiff proceed to decide it forthwith. In this case 13-4-1955 was fixed to enable the plaintiff to furnish the required particulars, but on that date not only the particulars were not furnished, but the plaintiff was not present. It was therefore a case, where the court was empowered to decide the suit on merits or to dismiss it for default of appearance. The court did not decide the suit on merits but simply dismissed it.

Mr. Phadke, learned counsel for the petitioner contended that in the circumstances of this case, the dismissal of the suit must be regarded as a dismissal on merits, because one of the reasons for this dismissal was that the plaintiff had failed to furnish the particulars as ordered by the Court. Mr. Phadke referred two decisions of the Nagpur High Court reported in AIR 1940 261 (Nagpur) (Firm Baxiram Rudamal vs. Seth Gokuldas Kishanlal) and AIR 1941 223 (Nagpur) (Nazir Abbas Sujjat Ali vs. Raza Azamshah Raza Suleman Shah)

In the case of Firm Baxiram Rudamal Vs. Seth Gokuslad Kishanlal, the plaintiff had filed a suit for damages of breach of contract. The trial Court directed him to clarify his pleadings having decided that as they stood, the suit could not be fairly adjudicated upon. The plaintiff was found to be avoiding in giving the necessary particulars. On 16th October 1937, the trial judge adjourned the case on payment of Rs. 20 as costs and warning the plaintiff that if he failed to give particulars on the adjourned date, his suit will be dismissed. The plaintiff still failed to give the particulars and applied for adjournment. The case was adjourned on payment of further costs, but as even on the adjourned date, the plaintiff did not pay the costs nor furnish the particulars, his suit was dismissed. The plaintiff went up in appeal against the dismissal of the suit, and the appellate court, out of sprit of mercy, gave the plaintiff another chance and remanded the case, The defendant went up in appeal which was allowed by the High Court as it was of the opinion, that in view of the conduct of ''he plaintiff, the leniency which was shown by the appellate court was not justified.

The learned judge, in course of the judgment made the following observations for the guidance of the courts.

It is not, broadly speaking, desirable that case should be lost in this way. It is not desirable that judges should be stringent where it comes to dealing with litigants who may have gone wrong because they were unaware of the ways of Courts or of the world or were ignorant or ill advised. It is not advisable on the other hand to allow litigants to take up a contumacious attitude, holding their facts back until they have had an opportunity of fishing about in their opponent''s evidence.

This is not a case of latter kind, The plaintiff according to the finding of the trial court which was not challenged before me, was ill on 14-4-1955 and was for that reason unable to comply with the order of the Court.

It does not then appear from the report of Baxiram Rudamal that the plaintiff was absent in that case and the question whether the dismissal of the suit was under the provisions of Order 17 Rule 2 or under the provisions of Order 17 Rule 3, did not arise for consideration. The decision in that case has therefore no direct bearing on the point raised in this case.

In Nazir Abbas Sujjat Ali vs. Raza Azamshah Raza Suleman Shah also, the plaintiff''s suit was one for damages. The plaintiff was ordered to furnish certain particulars with respect to the claim on merits. He was given two opportunities, but he failed to give the required particulars. The court thereupon passed the following order.

The plaint does not mention anything as to when the amounts were alleged to have been embezzled. Under the circumstances it is not possible to proceed with the case. It is fair that the defendants especially defendant 4, should Know about the period in which the amounts were said to have been embezzled, As the plaintiff insists on not giving the period in which the sums are alleged to have been embezzled, the defendants have no case to meet, The defendants are therefore discharged. The plaintiff shall bear his own costs and pay the costs of the defendants in the suit.

The order was inconclusive and neither the plaint was rejected nor was the suit dismissed in specific terms. The plaintiff filed an appeal which was allowed. The matter was taken to the High Court in revision by one of the defendants and the only contention raised by him was that the appeal was incompetent. It was held on the facts of that case that either it was a case of rejection or the plaint or dismissal of the suit and the appellate court had therefore jurisdiction to entertain the appeal. From the report of that case also it does not appear that on the material date the plaintiff was absent in the trial court and at any rate the question whether the order can be Interpreted as an order under the provisions of order 17 Rule 2 C.P.C. was not at all raised. The two Nagpur High Court''s decisions therefore do not cover the point raised in this case and are distinguishable on facts. In both the Nagpur cases the court bad practically come to the conclusion that it was not possible to proceed further in the absence of the particulars demanded from the plaintiff, and the action taken by the Court could very well be supported under the provisions of Order 17 Rule 3 C.P.C.

The order of the court dated 13-4-1955 by which the suit was dismissed does not disclose whether it is an order passed on merits of the case or whether it is an order passed under the provisions of Order 17 Rule 2 C.P.C, The court which had passed the initial order of the dismissal of the suit treated that order as one passed under the provisions of Order 17 Rule 2-C. P.C. and considering that one of the reasons which led to the dismissal of the suit was non-appearance of the plaintiff and his pleader, I do not think that the view taken by the lower court is erroneous in any manner.

There are no grounds to interfere in revision. The revision fails and is hereby dismissed with costs.