Maharaja of Vizianagaram vs Lingam Krishna Bhupati and Others

Davies J.

In Appeal No. 17 of 1901. - Following the decision of this Court in the case of Gilkinson v. Subramania Aiyar ILR 22 M. 211 I must bald that

there is no appeal in this case and accordingly dismiss this appeal with costs.

In appeal against order No. 12 of 1901. - I agree with the District Judge that there was no sufficient cause for the non-appearance of the

plaintiffs'' Vakil in court when the case was called on for hearing and therefore dismiss this appeal with costs.

In Civil Revision Petition No. 40 of 1901. - In this case the Judge dismissed the suit u/s 102 of the CPC for default of the appearance of the

plaintiff''s Vakil at the time the case was called on. As the case was part-heard and this was an adjourned date of hearing, the appropriate section

of the Code under which the Judge ought to have acted was Section 157. Under that section he could either have dismissed the suit for default or

passed such other order as he thought fit. The question is whether it was present to the Judge''s mind when he dismissed the suit for default that he

had the option of passing any other order that he thought fit. There is no indication that he did consider that he had an alternative course. The

indications are that he did not. In the first place the wording of the order dismissing the suit, namely, that the ""plaintiff not being present either in

person or by Vakil, the suit is dismissed with costs,"" would indicate that the dismissal of the suit was a necessary consequence of the non-

appearance of the plaintiff. It would seem to imply that there was no alternative. The further order of the Judge on the application to restore the

case to the file contains the following ""paragraph:--8. ""It cannot be seriously contended that the failure of the pleaders to appear is due to any other

cause but negligence pure and simple. It is certainly hard on the plain-tiff that his suit should be dismissed under these circumstances, bat the

provisions of the Procedure Code are strict, and I cannot see my way to putting the suit back."" The Judge also remarks in para. 9, ""I am

constrained therefore, though, against my will, to dismiss the application with costs."" Thus he deplores the rigour of the law overlooking the latitude

it allowed him. This to my mind clearly shows that the Judge .thought that the hardship done was not of his own doing but was attributable only to

the law while as a matter of fact his was not so. He could have exercised his discretion and prevented the dismissal of the suit by passing some

other order, and his language shows that he would have done so had he considered the provisions of Section 157 of the Code.

In the second place, the order passed by the Judge was certainly not an order that any reasonable Judge would have passed u/s 157 of the

Code. The plaint was that of a minor. The amount of the claim was about a lac of rupees. The suit was being fought step by step up to the date of

its dismissal. Sir V. Bhashyam Aiyangar had journeyed from Madras to prosecute the suit, and its dismissal, in such circumstances, was a penalty

upon both the Vakil and his client out of all proportion to the fault of the Vakil in being half an hour late at court. I am therefore satisfied that the

Judge did not act u/s 157 of the Code of Civil Procedure. He thereby failed to exercise the discretion vested in him by that section, in other words

he failed to exercise a jurisdiction vested in him by law. We can, therefore, interfere with his order u/s 622 of the Code, and for the reasons

already stated I am of opinion that he ought not to have summarily dismissed the suit u/s 102 of the Code as he has done. I would accordingly

direct that it ha restored to the file for disposal according to law on condition that Mr. D.V. Narasing Rao, Sir v. Bhashyam Aiyangar''s junior in

the case, do pay the costs of the day on which the suit was dismissed for default, he having undertaken before us to do so. What those costs were,

will be taxed by the District Judge.

There will be no costs of this petition.

Moore, J.

Original Suit No. 7 of 1899 came on for hearing before the District Judge of Vizagapatam on the 24th October 1900 and was adjourned till tlie

following day. On the 25th the Judge appeared in Court very-shortly after 11 a.m., and this suit was called on but no one appeared for the plaintiff.

The Judge waited some minutes and then disvnissed the case by the following order: ""Plaintiff not being present either in person or by Vakil, the

suit is dismissed with costs."" A short time afterwards the two pleaders for the plaintiff appeared in court, and a petition was presented to the Judge

requesting"" him u/s 103 of the CPC to set aside his order of dismissal. On the 15th November this petition was rejected as the Judge held that the

pleaders had failed to show that they had been prevented by any sufficient cause from being present in court when the suit was called on for

hearing.

Appeal No. 17 of 1901 is an appeal against the order of dismissal of the suit passed by the Judge.

Appeal against order No. 12 of 1901 is an appeal against the order of the Judge rejecting, u/s 103 of the Civil Procedure Code, the petition

requesting him to set aside his order of dismissal on the grounds that he in passing that order failed to exercise a jurisdiction vested in him by law

and acted illegally and with material irregularity.

Following the judgment of a Bench of this Court, in GilKinson v. Subrahmania Aiyar ILR 22 M. 221 it must be held that there is no appeal

against the order of the Judge in dismissing the suit.

Appeal No. 17 of 1901 is dismissed with costs.

As the Judge is clearly right in holding that the plaintiffs'' pleaders completely failed to show that they were prevented by any sufficient cause

from appearing when the suit was called on for hearing, appeal against order No. 12 of 1901 must be dismissed with costs.

The Civil Revision Petition remains for consideration. There can be no question that when on the morning of the 25th October the plaintiff

failed to appear in person or by pleader, the section of the Code under which the judge was bound to proceed was Section 157. Under the

powers given to him by that section it was open to him to dismiss the suit for default u/s 102 or to make such other order as he thought fit. He

might, for example, have ordered the hearing to be adjourned to the following day, making such orders as to the costs of the day as he thought fit.

It is now urged in support of this petition that the wording of the two orders passed by the Judge show beyond all reasonable doubt that the

existence of this section or the nature of the powers given to him under it were not present 4o Mr. Bell''s mind when he passed his orders of the

25th October and the 15th November, that it is imposible to believe that, if he had duly considered the wide latitude granted to him u/s 157 with

respect to the order that he should pass when the plaintiff and his pleaders failed to appear, he would have passed the order that he did on the 25th

October, and that such being the case, it should be held that he acted with material irregularity in dismissing the suit. After full consideration of the

wording of Mr. Bell''s two orders, I am of opinion that this contention is a valid one. The Judge has unfortunately not mentioned the sections under

which he passed his order of the 25th October, but there are, as it appears to me, very strong grounds for holding that when he passed it he had

Section 102 alone in his mind and did not consider Section 157. The former of these sections gives the court no option. If the plaintiff or his

pleader does not appear the suit must be dismissed. The wording of the order leaves but little doubt in my mind that Mr. Bell considered that he

had no option but to dismiss the suit. If he was conscious that he had the power of making such order as he thought fit, it is only reasonable to

assume that he would have referred to this fact and given some reason for passing an order for dismissal in preference to any other order. It also

appears to me to be difficult to believe that a Judge of experience, if he had duly considered the nature and extent of the powers conferred on him

by Section 157 could have arrived at the conclusion that it was just and equitable to dismiss a suit for a large sum of, money on the sole ground

that the plaintiff''s pleaders on a morning when it is clearly shown that the weather was most inclement were a few minutes late in coming to court.

A consideration of the warding of the 8th paragraph of the order of the 15th November confirms me in the opinion that I have just expressed. Mr.

Bell then observes that it was carbonyl hard on the plaintiff that his suit should have been dismissed under the circumstances, but that the provisions

of the CPC were strict. This remark is perfectly true if Section 102 alone is considered, but it is unintelligible if the Judge had the provisions of

Section 157 in his mind when he dismissed the suit, for the provisions of that section are, as has already been pointed our, by no means strict but

give the Judge the widest possible latitude as to the order that he should pass. For these reasons I consider that 1 am bound to hold that the Judge

passed his order without reference to the provisions of Section 157, that he consequently failed to consider the extent of the option conferred on

him by that section, and that he jumped to the conclusion that he was bound to dismiss the suit and in consequence passed an order doing so

which, the. wording of his later order shows beyond all reasonable doubt, he would not have passed if he had not been mistaken as to his legal

powers under the CPC and taking this view, of his action it follows that I must hold that in passing his order he failed to exercise a jurisdiction

vested in him by law. The order of the Judge dismissing this suit must, therefore, be set aside under the powers given by Section 622 of the CPC

and he must be directed to take the suit on his file on the terms mentioned by Davies, J., in his judgment and proceed to dispose of it according to

law. The parties will pay their own costs in so far as this petition is concerned.