Sitesh Kumar Dwivedi vs Ranjana Bhagdiker and Others

Fakhruddin, J.

Heard on admission.

This revision has been filed against the order dated 17-4-2002 passed in M.J.C. No. 7/1999 whereby the Court of VIII Civil Judge, Class-II, Bilaspur, has restored the Civil Suit No. 14-A of 1999.

Briefly stated facts arc that separate civil suits for eviction were filed by three persons namely Smt. Savita Bhagdiker, Sanjay Bhagdiker and Ajay Bhagdikcr against the tenants/defendants namely Sitesh Kumar Dwivedi, P.N. Hatekar and Dilip Purushottam. Notices were issued and the case was fixed for 8-3-1999 (or filing written statement before one week and for framing of issues. When the case was listed on 8-3-1999, plaintiffs and their Counsel could not appear and the case was dismissed for non-prosecution. Thereafter, applications for restoration were filed on 17-3-1999 on the ground that the plaintiffs had engaged their Counsel namely Shri R.K. Jaiswal and on that date Shri Jaiswal had some cases in Sessions Court of Pendra Road and Shri Jaiswal has instructed his junior S.L. Namdeo to appear, but he could not appear. The Court has dismissed the other suits also in default. The restoration applications were filed on 17-3-1999. Notices were issued to the tenants and they opposed the prayer for restoration and filed reply. Shri R.K. Jaiswal, Advocate, appeared for the plaintiffs/applicants as a witness (P.W. 1).

On being asked pointedly whether the defendants/tenants examined any witness in opposition to the restoration, Shri Dubey, Counsel for the applicant replied in vague. However, ultimately he admitted that none of defendants/tenants examined themselves nor examined any witness.

The Court below after considering the entire material on record found that the plaintiffs made out a case for restoration and restored the suit by impugned order and the present revisions are against of the said orders.

A perusal of the order shows that the Court below has determined the question regarding restoration in para 4 of his order as to whether the applicants/plaintiffs have made out a case for restoration. Thereafter, the evidence, facts and circumstances have been appraised in great detail from pras 5 to 15.

Learned Counsel appearing for the applicant submitted that though the restoration application was filed by three persons who are original plaintiffs, but during the pendency of the said application, one of the plaintiffs Smt. Savita Bhagdiker had breathed her last. It is pointed out that though two of her sons had already joined parties and her daughter Ranjana Bhagdiker applied for substitution, but other persons/legal representatives were not joined. The contention of applicant is that unless all the legal representatives are brought on record, the restoration applications ought not to have been allowed. Counsel for the applicant further submitted that subsequent to restoration, the written statement has been filed and the trial is in progress.

The question for determination in restoration matter was as to whether the non-appearance of the parties or their Counsel on the date was wilful or malafide and as to whether sufficient cause has been made out for restoration of suit dismissed in default. It is not in dispute that 8-3-1999 was the date fixed for settlement of issues as the plaintiffs filed eviction suit, notices were issued and defendants were required to file the written statement and issues were to be settled. The Court has found that the Senior Counsel was busy in Sessions Court, Pendra, and he had instructed his junior. The junior could not appear on the said date, as he was under contemplation that the plaintiff was not required to do anything and it was for the defendant to file written statement. The written statement was not filed. Under the facts and circumstances of the case which have emerged in the case the Court has rightly restored the suit.

The provisions of Order 9 Rule 9, CPC is relevant here to quote which reads as under :--

"9. Decree against plaintiff by default bars fresh suit-

(1) "Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."

A plain reading of Order 9 Rule 9, CPC shows that after the suit is wholly or partly dismissed, the plaintiffs may apply for an order to set the dismissal aside and if the plaintiff satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal imposing costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

The provisions of Order 9 Rule 9 are not penal. They have to be'' liberally construed to substantiate the cause of justice. The Court below has considered all the facts and circumstances and relying on the evidence of learned Counsel appearing for the applicant who has been examined himself as P.W. 1, allowed the application for restoration. There is no infirmity in the order. Shri Dubey, Counsel for the applicant, however, submits that since Smt. Savita Bhagdiker had died during the pendency of application and her daughter alone was brought on record, the application ought to have been dismissed on that ground. This contention has no force. The two sons of Smt. Savita Bhagdiker were already parties who are legal representatives. Besides, her daughter applied for substitution and she has been permitted to be joined.

The persons already on record were there to protect the interest in the matter. Even otherwise her daughter was also joined. They prosecuted the case and the learned Trial Judge accepted the version regarding non-appearance. No prejudice has been caused either to the plaintiffs or defendants. The applicant has contested the proceedings for restoration and full opportunity has been given to him. It is not a case of non- joinder of necessary party.

It is also relevant here to quote Order I Rule 9 which reads as under:--

"9. Misjoinder and non-joinder.-- No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:

Provided that nothing in this rule shall apply to non-joinder of a necessary party."

The provisions of Order 9 Rule 13 and interpretation of the term "sufficient cause" came up for consideration before the Supreme Court in case of G.P. Srivastava Vs. Shri R.K. Raizada and Others, , where the Trial Court did not accept the pleas raised by the appellant and found that the absence of the appellant or his Counsel in the Court was not for a just or sufficient cause and the High Court also did not accept the contentions of the appellant and rejected the revision petition refusing to set aside the ex parte decree passed against him. The Supreme Court held as under :--

"Under Order 9 Rule 13, CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he has prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non- appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional For the absence of party in the case the other side can be compensated by adequate costs and the lis decided on merits ".

The parties cannot be allowed to suffer just for the default of the Counsel and the case has to be decided on merits especially when it has been filed for eviction on the ground alleged u/s 12 of the Accommodation Control Act. The Court below has considered the entire aspects and allowed the application for restoration. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. In the opinion of this Court, there is no error of jurisdiction or any illegality warranting interference in the impugned order in exercise of its revisional jurisdiction u/s 115 of the CPC. The revision fails and is dismissed.

However, the Trial Court is directed to conclude the trial as early as possible preferably within a period of six months from the date of receipt/ production of a copy of this order subject to co-operation of both the parties.

Certified photocopy as per rules.