M. Suryanarayana Setty vs M.V. Sreerama Gupta and Others

K.V. Narayana Raju, M.-This application under Regulation 28(A) of the Karnataka Appellate Tribunal Regulations is for restoring Apl. No. 534/79(LR) which was dismissed on 23-5-1980 for default of appearance of the counsel and also the appellant.

The application filed on 18-6-1980 within time is supported by two affidavits, one by Sri H.B. Narayan, Advocate the other by the petitioner himself. The advocate has stated in his affidavit that he was appearing for the petitioner along with Sri K.N. Subba Reddy, advocate; that he could not be present on 23-5-1980 since he was out of station; that the party also was not able to be present since he was not feeling well. The applicant Suryanarayana Setty himself has said that he was not well and that his absence was bonafide and not intentional. He has added that his counsel was out of station on account of vacation for Civil Courts.

The advocate for respondent 1 and the State Representative for respondents 2 and 3 orally opposed the application and contended that neither the advocate nor the applicant made out sufficient cause for his absence on 23-5-1980.

Having considered the arguments advanced and perused the record, we are of the opinion that there is not even a serious attempt at making out a case of sufficient cause for the default on the part of the advocate, Sri Narayan. There is not even a whisper as to why the senior Advocate Sri K.N. Subba Reddy also was not able to attend the court. A perusal of the order sheet shows that the one or the other of the advocates appeared intermittently and that none of them appeared on most of the dates on which the case was called on for hearing. On 20-2-1980 Sri Narayan took adjournment on the ground that Sri K.N. Subbareddy was unwell. That statement suggests that said Sri Subba Reddy was expected to conduct the case.

Be that as it may, the question is whether the applicant has made out sufficient cause for non-appearance. "Sufficient Cause" doubtless has not been defined anywhere. The expression however has been described and explained in several cases. It is a question of fact depending upon the circumstances of each case and is not subject to any hard and fast rule except that the court must exercise a judicial discretion in the matter. A perusal of the commentary under Order 9 Rule 9 CPC in AIR Commentaries would convince that an absence caused despite diligence and honest attempt at being present and conducting the case only will constitute sufficient cause. If a party or his agent such as an Advocate remains absent because he thinks that enjoying the summer vacation is more important and urgent than conducting a case before this Tribunal which does not enjoy such vacation, we do not think that the party or the advocate is making out a sufficient cause for the absence. On the other hand such an attitude only establishes the utter indifference if not the callousness of the party or the advocate in the conduct of the case.

In A.I.R. 1921 Nagpur 3 and A.I.R 1959 Calcutta 389 it was held that the mere absence of a party''s pleader or the fact that the pleader was engaged elsewhere does not amount to sufficient cause. In AIR 1927 Oudh 211 it was said that the fact that in the District, pleaders take up cases in different courts and cannot be present at one and the same time in all the courts will not suffice. We would however not go to such extremes. If an advocate is diligent and is making all efforts to conduct the matters to the best of his ability, the fact that at a particular time he was unable to be present at a particular place because he was busy at another place in connection with the discharge of his professional duties, we should have no hesitation to hold that the advocate was prevented by sufficient cause by appearing in a particular court. In the case before us such is not the case and unfortunately the advocate appears to think that wherever he is and whatever he may be doing his absence in the court must always be treated as making out sufficient cause. He has not said that he had to be out of station on account of some urgent call and that he was not left with sufficient time to make out alternative arrangements for the representation of the petitioner in the case. What is more what prevented the other advocate who was on record from appearing in court is left to be imagined. We have no option but conclude that both of them were indifferent to the consequences. Sri Narayan, advocate has simply said that he was out of station and it is only the applicant who has said in his affidavit that his advocate was out of station on account of vacation. Such a situation we think makes out more the want of sufficient cause than the existence of it.

The learned counsel for the applicant has invited reference to 1971(1) MLJ. 447 which deals with the meaning of "sufficient cause" used in Sec. 29 of the Rent Control Act. He has also referred to 1973(2) Sh. Notes Item 225 in which it was only held that an application for restoration of an application under Order 9 Rule 9 CPC dismissed for default may be entertained under Section 151 CPC. These two cases do not help the applicant. The last case relied on is 1972(2) M.L.J. Sh. Notes Item 228 in which it was pointed out that the Judge erred in rejecting the application for restoration on the ground that the advocate did not make arrangements for a representation that he was engaged in another court, and that therefore there was no sufficient cause. This case also cannot serve because it is not the case of the applicant that the advocate was busy in another court on that day.

The only thing that remains to be considered is the affidavit of the applicant who has said that he was ill and so did not appear. His presence was not necessary and he has not made out a prima facie case of illness by producing a medical certificate. Oral assertions of interested parties cannot carry them far. On the whole, we are of the opinion that the applicant and his advocates have not made out sufficient cause for restoration of the appeal dismissed for default. The application is dismissed.