Rohit vs State Of Chhattisgarh

This appeal has been preferred by the Appellants against the order dated 06.04.2022 (Annexure A-1) passed in MJC No. 15/2019, passed by the Additional District Judge, Camp Court, Kurud, District Dhamtari (C.G.) whereby the Court below has dismissed the application filed by the Appellants under Order 9 Rule 9 of the Civil Procedure Code for restoration of Civil Appeal No.311/2012.

Facts of the case are that the Appellants/Plaintiffs have filed a civil suit for declaration and permanent injunction against the Defendants therein and the suit was dismissed by the Trial Court. Being aggrieved by the dismissal of the suit, the Appellants preferred First Appeal under Section 96 of the Civil Procedure Code, 1908 which was registered as Civil Appeal No. 311/2012. The Appeal was fixed for hearing on 10.05.2019, however, on the said date the appeal was dismissed for non-appearance of the Appellants and their Advocate. Since, the Counsel for the Appellants was unwell on the date of hearing, therefore, he could not attend the hearing on that date. Immediately after he recovered from his illness, he inquired about the status of the appeal and came to know about the dismissal of the same, thereafter, the Appellants filed an application under Order 9 Rule 9 of the Civil Procedure Code which was dismissed by the Court below vide impugned order dated 06.04.2022. Hence, this appeal.

Learned Counsel appearing for the Appellants submits that despite of the fact that the Counsel for the Appellants has filed his personal affidavit on 15.05.2019, wherein, he has categorically mentioned that he could not attend the proceedings of the Civil Appeal on 10.05.2019 on account of his ill health, the Court below has dismissed the application stating that the reasons assigned for non-appearance is not sufficient as no affidavit has been filed as to the ill health of the Counsel. Therefore, order passed by the Court below is illegal, arbitrary and erroneous which may liable to be set-aside.

Learned Counsel appearing for the Respondents formally objected the arguments advanced by learned Counsel for the Appellants.

I have heard learned counsel appearing for the parties and went through the record with utmost circumspection.

Dealing with the issue, the Supreme Court in case of Raj Kishore Pandey v. State of Uttar Pradesh and others (2009) 2 SCC 692, Para 8 held as under:-

In our opinion, whether the applicant has made out sufficient cause or not, in the application filed, this Court is required to look at all the facts pleaded in the application. No doubt, the consideration of the existence of sufficient cause is the discretionary power with the Court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the Court in such matters should be to advance the cause of justice and not the cause of technicalities. A case, as far as possible, should be decided on merits.

in case of Rafiq and Another v. Munshilal and Another  (1981) 2 SCC 788, the Supreme Court in Para 3 held as under:-

“The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.”

Thus, in the light of aforesaid principles laid down by the Supreme Court, in the instant case, on 10.05.2019, the First Appeal was pending before the First Appellate Court for consideration. On perusal of affidavit of the Advocate for the Appellants (Annexure A-3), it appears that on 10.05.2019, due to his ill health neither he attended the Court proceedings nor informed the Appellants in this regard. The said affidavit was not duly rebutted by the Respondents/Defendants by way of any counter affidavit. Therefore, it is well establish that on the date of hearing, Counsel for the Appellants was not well and due to his ill health, he was not appeared before the Appellate Court. Thus, the Appellate Court has wrongly held that the Appellants are unable to establish any good ground regarding non appearance of their Advocate on the date of hearing i.e. 10.05.2019. Looking to the affidavit which was annexed with the application filed under Order 9 Rule 9 of the Civil Procedure Code, there was a sufficient cause available to the Appellants due to that their Advocate did not appear before the Appellate Court, therefore, the finding recorded by the Trial Court holding that the cause shown is not sufficient is erroneous and liable to be set aside.

I am of the considered opinion that the Appellants/Plaintiffs have succeeded in showing sufficient cause for non appearance on 10.05.2019 when the appeal was called up on hearing. Consequently, the order passed by the Appellate Court dated 06.04.2022, rejecting the application under Order 9 Rule 9 of the Civil Procedure Code is hereby set aside.

Accordingly, the appeal is allowed. The Civil Suit No. 311/2012 pending in the Court of Additional District Judge, Camp Court, Kurud, District Dhamtari (C.G.) is restored to its original number. The Trial Court shall now proceed to decide the suit in accordance with law on merits after affording an opportunity of being heard to all the parties and the suit be decided expeditiously preferably within a period of six months from the date of receipt of certified copy of this order.

Certified copy as per rules.