Kaushalya Devi Agarwal vs Life Insurance Co. and Others

S.C. Pandey, J.—This is an appeal against the order dated 10.9.90 passed by the IInd Addl. District Judge, Chhindwara in M.J.C. No. 526/89 whereby he rejected the application under Order 9 Rule 9 CPC for restoring the suit of the Appellant.

The Appellant filed an application under Order 13, Rule 1 CPC as an indigent person, it was registered as Civil Suit No. 6/89 after disposal of the application. On 23.6.89 the case was fixed for filing written statement. The case was dismissed for default of appearance of Appellant and her Counsel.

The Appellant, then filed an application under Order 9, Rule 9 CPC for restoration of the suit. Her case was that she was suffering from high blood pressure and dysentery on 23.6.89, and, therefore, she was unable to appear before the Court on 23.6.89. It was also alleged in the application that wife of the Counsel for the Appellant in the lower Court had expired. For this reason, the Counsel was absent from Chhindwara. In such a circumstance, he too was unable to appear before the Court. This application was supported by an affidavit of the Appellant.

The Respondents filed written reply denying the allegation made by the Appellant that she was suffering from blood pressure. However, the date of illness in the reply was mentioned to e 23.6.89 instead of 23.5.89. This mistake was not corrected by the Counsel for the Respondents or the Court and, therefore, there was no effective denial of the fact if the Appellant was really ill on 23.6.89 because the record was never corrected. One is unable to say whether this was a typographical or inadvertent error. Be as it may, nobody noticed this error on the part of the Respondents; However, it was not disputed by the Respondents that the Counsel for the Appellant in the Court below was unable to attend the Court personally because his wife had expired and he was not in Chhindwara on 23.6.89.

It appears that on the basis of application and the reply the Court thought that the Respondents are really contesting the case of the Appellant for restoration and, therefore, evidence was also allowed to be led on the issue, whether there was sufficient cause for non-appearance of the Appellant on 23.6.89.

The Appellant examined herself as P.W.I and her witness Ishwar Prasad was examined as P.W.2. Both these witnesses stated in evidence that on 23.6.89 the Appellant was suffering from high blood pressure and dysentery. However, the Appellant to file one medical certificate which was not proved by examining the doctor who issued the medical certificate. The Respondent did not lead any evidence to controvert the assertion of the Appellant.

The Court below, however, did not believe the evidence led by the Appellant that she was`s ill on 23.6.89. It was also held by the Court below that the medical certificate was filed by the Appellant very late. Further, the Court below had held that the Appellant was suffering from high blood pressure from last six years and, therefore, it must have been part of her life for last six years. It appears that Court below thought that she could attend the Court despite high blood pressure. As to the case of the Appellant that she was suffering from dysentery, the Court below held that she had not pleaded that she was suffering from dysentery in her application under Order 9, Rule 9 of the Code of Civil Procedure. Further the Court below was of the view that since Ishwar Prasad had stated that the Appellant was ill on 22.6.89 and not on 23.6.89, therefore, there was no reason for not appearing on 23.6.89. Thus, according to Court below, there was no ''sufficient cause'' for restoring the suit to file.

It is clear from the order passed by the Court below that he had not considered any way the effect of admission made by the Respondents that the Counsel for the Appellant was absent because of death of his wife. It is, obvious, that absence of the Counsel of the Appellant was for the sufficient cause and assuming for a moment that the Appellant was not ill on 23.6.89. There is no apparent reason for holding that her Counsel would not have attended the Court on her behalf on 23.6.89, in her absence, if his wife had not expired it is also possible that the case would not have been dismissed for default on his appearance on 23.6.89. This aspect of the case was never looked into by the Court below and on this point alone the appeal deserves too be allowed and the order of the Court below could be set aside.

However, on going through the evidence of Kaushalya A.W.1 and Ishwar Prasad A.W.2 and ignoring the medical certificate which was not proved, this Court comes to a conclusion that the Appellant was suffering from high blood pressure and, therefore, she did not attend the Court. The statement of Kaushalya A.W.1 and Ishwar Prasad A.W.2 are uncontroverted. There is no reason to disbelieve them. It is possible that the witnesses are not entirely truthful. Even so, the Court is bound to find out the probabilities in the matter. The Court below has been very harsh on the Appellant and has tried to find out a way to dismiss her case by being too astute. It is well established that dismissal in default of appearance could not be used as a weapon to punish the parties and, therefore, provision of Order 9, Rule 9 CPC are usually interpreted liberally so that opportunity be given to the parties to contest the case on merits.

In view of the discussion aforesaid, it is found that there was sufficient cause, for non-appearance of the Appellant on 23.6.89 and the application under Order 9, Rule 9 CPC should have been allowed by the Court below. For the reasons aforesaid the order passed by the Court below is set aside, and the appeal is allowed. There shall be no order as to costs.

It is directed the case will go back to the Court below and the Civil Suit shall be registered at its original number for disposal on merits. It is further directed that the parties will appear before the Court below on 30.10.89 for taking date of further appearance. The office is also directed to take effective steps for sending the record of the case immediately.