Shashi Kant Gupta vs Rajiv Dave and Others

S.P. Srivastava, J.—Feeling aggrieved by an order passed by the Judge Small Cause Court dated 23-5-94 whereunder the application filed by the Plaintiff-Respondent under Order IX Rule 9 of the Code of Civil Procedure, seeking setting aside of the dismissal of the suit No. 25 of 1985 for default on 17-3-90 had been allowed with a direction requiring the Defendant to pay a cost of Rs. 25/-. One of the Defendants has filed the present revision u/s 25 of the Provincial Small Causes Court Act praying for the setting aside of the order passed by the trial court dated 23-5-94.

I have beard Sri Murali Dhar, learned Senior Counsel has appeared tot the revisionist.

It appears from the record that S.C. suit No. 25 of 1985 had been filed claiming a decree of ejectment of the Defendants from the premises in dispute and for recovery of arrears of rent and damages for use and occupation pendente-lite and future. This suit was dismissed for default of the Plaintiff on 17-5-90. On 22-5-90 an application setting aside of the dismissal of the suit was filed by the Plaintiff asserting that his son-in-law had all of a sudden fallen ill and he was moved to a nursing home for surgery. It was further asserted that the Plaintiff had to look after his son-in-law in the nursing home through out the day and night. It was claimed that in the circumstances the Plaintiff was not in a position to contact his counsel. In the counter-affidavit while replying to the allegations made in para 3 of the affidavit of the Plaintiff containing the aforesaid assertion made in paragraph 3 of the affidavit filed in support of the application under Order IX Rule 9 of the Code of Civil Procedure, the revisionist did not specifically deny the claim of the Petitioner that his son-in-law had all of a sudden fallen ill and was moved to a nursing home for surgery and the Plaintiff had to look after his son-in-law in the nursing home through the day and night but what was said was that the allegations made by the Plaintiff in this regard were vague. The Plaintiff filed a rejoinder affidavit which was accepted OH record, wherein it was specifically asserted that the son in--law was very seriously ill on 17-5-90 and the Plaintiff was very busy in attending him Although a supplementary counter-affidavit was filed by the revisionist, the assertions made in paragraph 4 of the rejoins affidavit were not specifically denied, It is not disputed that the accommodation in dispute is a part of building No. 9, Elgin Road, Allahabad and the portion other than that which is occupied by the revisionist is being occupied by the landlord. In paragraph 4 of the supplementary counter-affidavit, the revisionist made an assertion to the effect that "It is a manufactured and false statement that the Plaintiff�s son-in-law had any ailment which could hold back the Plaintiff from attending to the case and the prescriptions filed in proof thereof pertain to 15-4-90, 16-4-90, 17-4-90 and 23-5-90 are fabricated, concocted and inadmissible and do not either'' indicate any serious aliment or anything else which could detain the Plaintiff on 17-5-90 and engage him in any hustle and bustle in connection with that ailment". The supplementary affidavit consisted of nine paragraphs. Paragraph 1 to 9 were sworn to be true and correct to the best of the dependent�s knowledge and belief. The assertions made in paragraph 4 of the rejoinder affidavit had been sworn by the Plaintiff on personal knowledge.

The trial Judge on an appraisal of various affidavits and the materials placed on record came to the conclusion that he was satisfied that the Plaintiff was prevented from attending the court on the relevant date due to serious illness of his son-in-law. On the aforesaid conclusion the trial Judge allowed the application filed under Order IX Rule 9 of the Code of Civil Procedure.

Sri Murali Dhar, learned Counsel for the Applicant has asserted that the illness of the son-in-law could not be deemed to constitute sufficient cause for the non-appearance of the Plaintiff The contention is that In this view of the matter the application for setting aside the dismissal of the suit in default deserved to be rejected out right.

So far as the above submission is concerned, it may be noticed that as observed by this Court in its decision rendered by a Division Bench in the case of Lalta Prasad v. Ram Karan 1912 ALJ 666, nothing in the CPC can limit or otherwise affect such powers under which a court can restore a case on ground, other than sufficient cause for non-appearance The provisions contained in Order IX Rule 9, CPC makes it compulsory on a court to set aside a dismissal order under Order IX Rule 8 of the CPC where the Plaintiff satisfies court that there was sufficient cause for non-appearance it was emphasised that the provision contained in Order IX Rule 9 of the CPC cannot take away the courts power to restore the case for any other valid reason.

Moreover in its decision in the case of Musammat Godhni Vs. Shyam Lal and Others, . it was held that illness of the daughter of the special attorney of the Plaintiff on the date of hearing fell within the ambit of sufficient cause contemplated under Order IX Rule 9 Code of Civil Procedure. In this decision It was clarified that where the question of sufficient cause has to be considered each case must be dealt with on its own facts and it is impossible to lay down any universal rule as to what constitutes sufficient cause.

There can be no manner of doubt that in case sufficient cause is made out in that event it is obligatory on the court to set aside the order of dismissal in default. However the court has ample Jurisdiction and discretion to restore the case for any other valid reason upon such terms as to costs or other wise as it thinks fit.

in the circumstances of the case, therefore, the submission of the counsel for the Petitioner that the illness of the son-in-law could not furnish a valid ground for sending aside the order of dismissal in default is without any merit and is not acceptable.

The learned Counsel has further urged that the whole approach of the trial Judge stood vitiated as it has been observed by him in the impugned order that the matter of restoration is between the Plaintiff and the court and the Plaintiff has to satisfy the court about his absence. Suffice to say in this connection that the aforesaid observation occurring in the impugned order has to be understood in the context of the provisions contained in order IX Rule 9 of the CPC and the implication arising thereunder as referred to herein before. It cannot be lost sight of that in fact it is the satisfaction of the court which matters. Of course, this satisfaction has to be reached and the judicial discretion exercised in a manner which is not arbitrary.

In the present case from the materials on record, it does not appear that the trial Judge recorded the satisfaction and exercised the judicial discretion vested in him in a manner which could be said to be otherwise than in accordance with law so as to warrant an interference by this Court white exercising the jurisdiction envisaged u/s 23 of the Provincial Small Causes Court Act.

Learned Counsel for the revisionist has strenuously contended that even if the Plaintiff could not attend the court his, counsel could attend to it and no explanation had been furnished in this regard by the Plaintiff.

It is not disputed that 17-5-90 had been fixed for final hearing of the SUIT Evidence was, thertfore, to be led on that date. The Plaintiff had asserted that in view of circumstances detailed in the affidavits filed by him he could not attend the court and could not even instruct his counsel in the circumstances of the case, therefore, nothing much turned upon the absence of the counsel for want of instruction specially when the trial Judge has recorded his satisfaction that the reason furnished by the Plaintiff for hit non-appearance on the date of the final hearing of the suit was valid.

In view of my conclusions indicated herein before no ground at all has been made out for any interference in the impugned order.

The revision Is accordingly, dismissed.