Rambhanjan Singh vs Pashupat Rai

Dawson Miller, C.J.—This is an application in revision from an order of the District Judge of Shahabad, affirming an order of the Subordinate Judge dismissing an application of the petitioner for restitution of his suit under Order 9, Rule 9, Civil Procedure Code.

The suit in question was ordered to be heard on the 9th March, 1922. Upon that day the petitioner apparently arrived at Court but he went away again and although he had instructed a pleader on his behalf in other proceedings in the suit nobody appeared on his behalf when the case was called on for hearing on that day. His case was accordingly dismissed under Order 9, Rule 8, for default of appearance. The petitioner thereupon took proceedings under Order 9, Rule 9, before the Subordinate Judge, asking that the case should be restored and giving as a ground for his non-appearance at the hearing the fact that his brother had been taken ill which he was informed of on the day ha went to Court and that he had gone away to look after his brother. No sort of reason was given apparently why his pleader should not have been instructed to appear on his behalf on that day. The pleader, however, when called upon said that he had no intructions in the matter. The learned Subordianate Judge refused to accept the explanation given by the plaintiff as sufficient within the meaning of Order 9, Rule 8, and he dismissed the application for restitution. The matter then came before the learned District Judge on appeal and he too refused to restore the case.

The only grounds which were open to the plaintiff for obtaining an order under Order 9, Rule 9, were those which are mentioned in the Order itself, namely, that there was sufficient cause for the plaintiff''s non-appearance when the suit was called on for hearing. If the plaintiff showed sufficient cause then the Court could make an order setting aside the dismissal of the suit and appoint a day for proceeding with it. When the matter came before the learned District Judge it appears that a further point was argued before him in support of the application. The point put forward then and the point which has been argued before us in this application was that the trial Court, instead of dismissing the suit, ought to have rejected the plaint under the provisions of Order 7, Rule 11. It seems to me that in the circumstances which have arisen it was not open to the plaintiff to put forward that matter as a ground for having his case restored under Order 9, Rule 9. The order made or the decree passed, dismissing his suit on the 9th March, 1922, may or may not have been a proper order to make, but there was no appeal or application in revision from that order and if the order was an improper one on the ground that the Court ought not to have passed it at that stage before considering the question which arose under Order 7, Rule 11, then that was a matter either for appeal or revision but there was no appeal or application in revision from that order and it was accepted by the plaintiff as a proper order. The only step which the plaintiff did take was an attempt under Order 9, Rule 9, to get the case reinstated on the ground that there was good cause for his not appearing on the day in question. In the circumstances it appears to me to have been unnecessary to consider whether or not the Court ought, in the circumstances, to have acted under Order 7, Rule 11. If it ought then that was a matter, as I have already said, on which the plaintiff had an appropriate remedy which he did not take. In any case, after hearing the learned Vakil for the petitioner, it seems to me that the circumstances contemplated in Order 7, Rule 11(c), did not arise because no order had been made upon the plaintiff to pay a deficit court-fee at all, and, therefore, it was not a case in which he had failed to comply with an order made by the Court and the Court was under no obligation under Order 7, Rule 11, to reject the plaint. That was the only ground which was put before us in this application, but it does not seem to me that the point really arises. No ground has been made out why we should interfere in revision with the order made by the learned District Judge, an order which, in my opinion, he had absolute jurisdiction to pass.

The application is rejected with costs.

Kulwant Sahay, J.

I agree.