Radhey hyam vs Sarwanand Upadhyay

This is defendant''s First Appeal From Order under Order 43, Rule 1 (d) of the CPC (for short the Code) against order dated 24th March 1989 passed by 1st Additional Distt. Judge rejecting the application to rehear the appeal and to recall ex parte decree dated 4th January 1989.

Factual matrix of the case is that the appeal was fixed for hearing on 4th January, 1989 and on that date Radhey Shyam appellant No. 1 fell seriously ill and could not attend the court but the appeal was decided ex parte against the appellants. Restoration application was filed by the appellants stating that appellant No. 1 was doing pairabi and he fell seriously ill and he has filed medical certificate as Annexure 2 to the affidavit accompanying the restoration application. Medical Certificate indicates that Radhey Shyam was suffering from typhoid fever. By the impugned order restoration application has been rejected.

Mr. B. N. Rai, learned counsel for the appellant urged that the application for restoration under Rule 21 of Order 41 of the Code was accompanied by the Medical Certificate and sufficient ground was made out for not appearing on the date fixed, consequently ex parte decree ought to have been set aside. Learned Judge erred in rejecting the same by making just sweeping observations that appellant No. 2 must have been deputed to attend the Court in case appellant No. 1 was ill. As the procedure has been provided under Rule 21 Order 41 of the Code to do complete justice between the parties court must have taken reasonable view.

Mr. Sankatha Rai, learned counsel for opposite parties urged that impugned order is perfectly correct. The appellant did not mention the name of Doctor nor he mentioned the desease. In case appellant No. 1 could not attend the Court he should have sent appellant No. 2 to come to the Court and do pairabi.

Having heard learned counsel for the parties, the scope of restoration application under Order 41, Rule 21 has to be decided and the Court below was concerned as to whether "sufficient cause" for non-appearance of the appellant was made out or not? In the present case application was accompanied by medical certificate issued by Dr. S. Pandey, B.A. B.M.S. Learned Judge has not relied upon the same simply on the ground that appellant No. 1 did not mention name of the Doctor. In a country like ours where a sizeable number of citizens suffer from illiteracy, in rural areas it is very rare that even regular pairokar is aware of the legal technicalities. Pairavi of appeal requires some knowledge of the facts of the case so that pairokar may instruct his counsel to argue it on particular point and client may assist the counsel on facts relevant on the point. It is not just in a mechanical way that in place of appellant No. 1, appellant No. 2 should have attended the Court. It has not been shown by the respondents that appellant No. 2 was also acquainted with the facts of the case. Rule of procedure has been provided with a view to do complete justice between the parties and not an end in themselves. Rules of procedure are instruments to achieve justice and are not-hurdles to obstruct the pathway to justice. Here the construction of Order 41, Rule 21 is involved. It has to be interpreted in a way so as to promote justice and prevent its miscarriage by enabling the Court to do justice in different situations and circumstances all of which cannot be envisaged by the legislature. In interpreting rules of procedure one has to keep in mind that construction which is rigid and negatives the cause of justice must be avoided. The reason is obvious, the procedure is meant to subserve and not to thwart the cause of justice (See Owners & parties interested in Owners and Parties interested in M.V. "ValiPero" Vs. Fernandeo Lopez and Others, .

Procedural law should subserve and should not control the Courts of justice. Procedural wrangle is eroding the faith in our judicial system, the lawyers and judges are to be conscious and the courts need not be fettered by technicalities. (See P.N. Dua Vs. P. Shiv Shanker and Others, , Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, Under the facts and circumstances of the case a more practical view, embedded in the social conditions of ours where ignorance of law and illiteracy are still in vague, ought to have been taken into account particularly where question was violation of principle ''AUDI AL-TERAM PARTEM''. Natural justice is a great humanising principle intended to invent law with fairness and to secure justice. Tt is inherent under Article 14 of the Constitution and an essential principle of due process.

In the present case 1 am of the view that more reasonable and practical view ought to have been taken by the learned Addl. Distt. Judge keeping in view social conditions prevalent in the country where litigants in the remote corners of the country are not conversant with the legal technicalities. Appellant No. 1 was acquainted with the facts of the case, not always necessary that appellant No. 2 could also have been acquainted with the facts of the case and would have rendered services to the counsel. The ends of justice require that expression ''sufficient cause'' must not be interpreted in a narrow and pedantic sense rather liberal spirit should inspire the court called upon to interpret it. A reasonable, liberal and justice oriented view must be taken consistent with the facts of the case. The expression ''sufficient cause'' is adequately elastic to enable the courts to apply the law in a meaningful manner so that the ends of justice are served. In my opinion in the present case sufficient cause has been made out. Impugned order deserves to be quashed.

In the result appeal succeeds and is allowed. Impugned orders dated 24-3-1989 and 4-1-1989 are set aside. The appeal is restored to its original number. 1st Additional Distt. Judge is directed to decide the appeal on merits after affording parties opportunity of hearing, within 3 months from the date a certified copy of this order is produced before him. There shall be no order as to costs.

Appeal allowed.