Sivasankaran vs Thankayyan and Others

M. Venugopal, J.—The Civil Revision Petitioner/Appellant/Plaintiff has filed the present Civil Revision Petition as against the judgment and

decree dated 15.06.2001 in C.M.A. No. 45 of 1995 passed by the learned Sub Judge, Kuzhithrai, in confirming the order dated 21.08.1995 in

I.A. No. 408 of 1995 in O.S. No. 1464 of 1969 passed by the learned Additional District Munsif, Kuzhithurai.

The first appellate Court while passing the judgment in C.M.A. No. 45 of 1995 dated 15.06.2001, has among other things, observed that ''...

the Petitioner has been given 32 adjournments i.e. for more than two years and no bona fide on his part is clearly established, etc.'' and dismissed

the appeal with costs, thereby confirming the order passed by the trial Court in I.A. No. 408 of 1995 in O.S. No. 1464 of 1969.

The learned Counsel for the revision Petitioner/Appellant/Plaintiff submits that the order dated 21.08.1995 in I.A. No. 408 of 1995 in O.S. No.

1464 of 1969 passed by the trial Court namely, Additional District Munsif Court, Kuzhithurai and the judgment and decree dated 15.06.2001 in

C.M.A. No. 45 of 1995 passed by the first appellate Court namely, the Sub Court, Kuzhithurai, are unsustainable in law besides the same vitiated

by material irregularities.

Advancing her arguments, it is the contention of the learned Counsel for the revision Petitioner/Appellant/ Plaintiff that the main suit in O.S. No.

1464 of 1969 has been adjourned for two years without noting down the reason for adjournment and both the Courts below have failed to

appreciate that the main suit itself has been at the stage of arguments and no prejudice will be caused to the other side if the suit is restored to file.

Also, a plea is raised on behalf of the revision Petitioner/Appellant/Plaintiff that the main suit is of the year 1969 and it has been remanded to the

trial Court and thereafter only, the main suit in O.S. No. 1464 of 1969 has been posted for arguments, but these material aspects of the matter

have not been adverted to by the Courts below in a real and proper perspective which has resulted in an erroneous order being passed against the

revision Petitioner/Appellant/Plaintiff.

The main contention projected on the side of the revision Petitioner is that the revision Petitioner/ Appellant/Plaintiff has not been feeling well on

20.06.1994 and the revision Petitioner has produced the Doctor''s certificate which ought to have been accepted by the Courts below. However,

the same has not been done.

The learned Counsel for the revision Petitioner submits that the revision Petitioner/Appellant/Plaintiff must be provided with an opportunity to

prove his case and therefore, he prays for allowing the present Civil Revision Petition in the interest of justice.

In the affidavit filed in I.A. No. 408 of 1995, the revision Petitioner/Appellant/Plaintiff has averred that the main suit has been posted to

20.06.1994 for final arguments and on that day, the suit has been dismissed for default and that he has been ill and bed-ridden from 15.06.1994 till

05.07.1994 and 6 therefore, he has not been in a position to move about freely to attend to his normal duties.

The revision Petitioner/Appellant/Plaintiff has also averred in the affidavit in I.A. No. 408 of 1995 that he has been under treatment with the

medical practitioner, Dr. S. Chella Sivalingam, B. Sc., M.B.B.S., at Kappikadu and has filed the medical certificate.

The revision Petitioner/Appellant/Plaintiff in his affidavit in I.A. No. 408 of 1995 before the trial Court has stated that because of his illness, he

has not been in a position to contact his advocate and give him instructions and therefore, he has not appeared on 20.06.1994.

In the counter filed to I.A. No. 408 of 1995 by the Defendants 4, 6 to 8 and 17, it is mentioned among other things that for arguments, the

main suit has been pending from 18.03.1992 to 20.06.1994 and nearly 32 adjournments have been given to the revision Petitioner/

Appellant/Plaintiff for the purpose of arguments and that the suit has been originally disposed of on 27.03.1975 and that in appeal in A.S. No. 297

of 1976, the matter has been remanded to the trial Court for fresh disposal on 05.03.1981 and the same has been pending for nearly 13 years.

Furthermore, in the counter, it is also averred that the illness mentioned in the affidavit in I.A. No. 408 of 1995 filed by the revision

Petitioner/Appellant/ Plaintiff is not correct and that the alleged medical certificate is not from a Government medical practitioner and the medical

certificate is not a genuine one.

This Court has perused the medical certificate dated 09.07.1994 issued to the revision Petitioner/ Appellant/Plaintiff by the registered medical

practitioner, by name one Dr. S. Chella Sivalingam, B. Sc., M.B.B.S., bearing Registration No. 37164. It is seen from the medical certificate that

the revision Petitioner/ Appellant/Plaintiff has been suffering from Pyogenic Arthritis Right Knee Joint from 15.06.1994 to 05.07.1994 and he has

been bed-ridden and not able to attend to his duties during this period.

At this juncture, this Court aptly points out the decision of the Honourable Supreme Court in B. Janakiramaiah Chetty Vs. A.K. Parthasarthi

and Others, , at page 642 and 643, wherein it is held as follows:

For application of the Explanation to Rule 2 of Order 17 Code of CPC the court has to satisfy itself that:(a) substantial portion of the evidence of

any party has been already recorded; (b) such party has failed to appear on any day; and (c) the day is one to which the hearing of the suit is

adjourned. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act

under the specified circumstance stated above. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as

it thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. If such is the factual situation, the

court may in its discretion deem that such party was present. Under Order 9 Rule 3 the court may make an order directing that the suit be

dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules

2, 6 and 8. The present case is primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are ""proceed with the

case"". Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not.

In Rule 2, the expression used is ""make such order as it thinks fit"", as an alternative to adopting one of the modes directed in that behalf by Order

Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent.

Explanation thereto gives a discretion to the court to proceed with the case even if a party is absent. But such a course can be adopted only when

the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as

provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally

granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes

mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit

forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the

latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule

3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a

deeming provision, when under given circumstances, the absentee party is deemed to be present.

The crucial expression in the Explanation is ""where the evidence or a substantial portion of the evidence of a party"". There is a positive purpose in

this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party''s stand and for disposal of

the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the

case if that prima facie is the position.

The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction

in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the

Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or

deferring the decision.

This Court worth recalls the decision in Sk. Makbul Vs. Sk. Sidik and Others, , wherein it is held that ''Whether there was sufficient cause is

pure question of fact exclusively within jurisdiction of subordinate Court and the High Court cannot interfere with the finding even if it is wrong

unless it comes within purview of Section 115(c) of the Code of Civil Procedure.''

Apart from the above, this Court cites the decision of the Honourable Supreme Court in Bapurao Vs. Jamunabai and Others, , wherein it is

held that ''Refusal to condone delay merely presuming Plaintiff''s knowledge about the death on the basis of newspaper obituary, is not justified and

on facts, it is held that sufficient cause has been shown which prevented the Plaintiff from moving the application in time.''

Furthermore, in the decision of this Court in Chinna Gounder v. Chellappa Gounder reported in (2003) 2 M.L.J.720, it is laid down thus:

When an application for restoration of the suit has not been numbered though it has been filed in time and such an application is maintainable in

law the Court should give an opportunity to the Petitioner to produce materials and explained his case.

Admittedly, in the present case before us, Ex.P.1, medical certificate dated 09.07.1994 issued by one Dr. S. Chella Sivalingam, B. Sc.,

M.B.B.S., to the Petitioner has not been examined as a witness in I.A. No. 408 of 1995. Even the no examination of the registered medical

practitioner who issued Ex.P.1 medical certificate dated 09.07.1994 in favour of the revision Petitioner/Appellant/Plaintiff is not fatal, in the

considered opinion of this Court. Indeed, in Ex.P.1, medical certificate dated 09.07.1994, the Doctor has stated that the Petitioner has been under

his treatment for Pyogenic Arthritis Right Knee Joint from 15.06.1994 to 05.07.1994 and that he has been bed-ridden and therefore, not able to

attend to his personal duties.

Admittedly, the main suit in O.S. No. 1464 of 1969 on the file of the learned Additional District Munsif, Kuzhithurai, is filed by the revision

Petitioner/

Appellant/Plaintiff praying for the relief of partition and separate possession of 3/8 share of the suit properties.

It is to be borne in mind that the term ''sufficient cause'' ought to be viewed liberally. However, on going through the order of the trial Court in

I.A. No. 408 of 1995 dated 21.08.1995, it is evident that the trial Court has come to the resultant conclusion that there is no reason to allow the

said application and inspite of several adjournments granted earlier to the revision Petitioner/Appellant/Plaintiff, the matter has not been argued on

his side and accordingly, the said application has been dismissed.

The first appellate Court namely, the learned Sub Judge, Kuzhithurai, in C.M.A. No. 45 of 1995 in the judgment dated 15.06.2001, has

dismissed the appeal by mentioning that the revision Petitioner/Appellant/Plaintiff has been given 32 adjournments, i.e. for more than two years and

confirmed the order of the trial Court passed in I.A. No. 408 of 1995 dated 21.08.1995.

In view of the fact that the revision Petitioner/Appellant/Plaintiff has been suffering from Pyogenic Arthritis Right Knee Joint from 15.06.1994

to 05.07.1994 as seen from Ex.P.1 medical certificate produced by him before the trial Court in I.A. No. 408 of 1995 and because of the said

illness, he has been bed-ridden and not able to attend to his normal duties, this Court by adopting a pragmatic common sense approach and also is

of the considered view that the Petitioner must be provided with an opportunity to advance his arguments in the main suit through his lawyer, this

Court by preferring the substantial justice overriding technical considerations, allows this Civil Revision Petition by directing the Petitioner to pay a

sum of Rs. 2,000/- (Rupees Two Thousand only) to the Mediation and Conciliation Centre attached to this Bench within a period of three weeks

from the date of receipt of a copy of this order failing which this Civil Revision Petition shall automatically stand dismissed without any further

reference to this Court.

Considering the facts and circumstances of the case, there is no order as to costs.