Smt. Ayyammal vs Vellappa Gounder

This revision petition is directed against the order, condoning the delay of 104 days in seeking to set aside the order of dismissal for default

made in a suit.

The respondent/petitioner filed O.S.No.35 of 1984 for bare injunction. It was posted in the list for trial on 15.9.1989. As the respondent did

not appear, it was dismissed for default. An application was filed on 27.1.1990 to set aside the order of dismissal along with an application to

condone the delay of 104 days in filing the same. In the affidavit filed in support of the application, the reason for the delay is given as follows:

I submit that in the month of June, I met an accident and my leg was broken and I was admitted in the hospital and I was advised to take rest in

bed for further six months. Hence I was not in a position to meet my advocate to give proper instructions.

The affidavit does not set out the year or the date, but it merely states that in June, the respondent is said to have met with an accident. The only

claim in the affidavit is that his leg was broken. This is denied in the counter statement filed in the trial court by the petitioner herein. In the course,

of evidence, the respondent produced a medical certificate dated'' 1.7.1989 and two X-ray films, which are marked as.ExsiA-2 and A-3. The

medical practitioner who .claim to have treated the respondent was examined as P.W.2 whole his evidence states that the respondent met with an,

accident in August, 1988 and that the X-ray films taken on 29.8 1988 disclose a fracture of the bone in the hip. According to P.W.2, he was in the

hospital for two months and he was advised to take rest for six months thereafter.

Thus, the reasons mentioned, in, the affidavit filed by the respondent that the accident took place in June 1989 is not correct. If it is assumed to

be June, 1988, there is no explanation as to why he did not take treatment till August, 1988, and the period of six months was over even in

February, 1989. On the other hand, if it is assumed that the accident took place in June, 1989 that will not fit in with the X-ray films marked as

Exs.A-2 and A-3. That case would be obviously false. Hence, it is clear that the respondent has not chosen to place the correct facts before the

court in the affidavit filed by him. According to the affidavit, the respondent''s leg was broken in the accident, but according to the medical

practitioner and the X-ray films, it is a fracture of the bone in the hip and there is no reference to any fracture in the leg. Assuming that the

respondent was in the hospital for two months, it will take us to October and if he was advised to take rest for six months thereafter, it will take us

to April, 1989. The suit was posted only on 15.9.1989 for trial. There is absolutely no explanation as to why the respondent was absent on

15.9.1989 when the suit was posted in the list for trial. The lower court has taken the view that the respondent has proved that he had suffered

fracture in the hip in August 1988 and that he should be given an opportunity to proceed with the suit on merits and that is required in the interests

of justice.

The court below was obviously carried away by sympathy. It had overlooked the provisions Order 9, Rule 9, C.P.C. Under the rule, the court

should be satisfied that there was sufficient cause for non appearance of the plaintiff when the suit was called for hearing. In this case, the question

of satisfaction of the court as to what was sufficient cause does not arise, as no cause was mentioned by the respondent for his non-appearance in

September, 1989. The evidence adduced by him would not take him beyond April, 1989. Even assuming that maximum indulgence could be given

to him on the basis of such evidence, there is no reason as to why the respondent did not attend the court in September, 1989. In the

circumstances the court below is in error in condoning the delay, without ascertaining whether there was sufficient cause for the non-appearance of

the respondent on the date of trial. Learned Counsel for the respondent relied on the decision in Mathi Ammal Vs. Ajjan and Others, , wherein,

this court held as under:

Sufficient cause"" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice where no negligenceor

inaction or want of bona fide is imputable to the appellant.

In the present case, there is no reason given by the respondent in respect of his claim that he had sufficient cause for non-appearance on the

date 15.9.1989. Hence, the above said ruling will have no application to the present case.

My attention is drawn to the observation of the Supreme Court in Johri Singh v. Sukhpal Singh and Anr. (1990) I.L.W. 534 . The Supreme

Court observed that the High Court will have jurisdiction to interfere u/s l15, C.P.C., with the order of the lower court only (i) if the court had no

jurisdiction to make the order it had made: and (ii) the court below had acted on a wrong approach of any provision of law and had committed an

error which was material and may affect the decisions.

In the present case, the court below completely ignored the provisions of Order 9, Rule 9, C.P.C., and proceeded to dispose of the application

before it on wrong notions of principles of justice. When the court below overlooks the express provision of law by which it is bound, this court is

certainly entitled to interfere under u/s 115, C.P.C. The ruling of the Supreme Court is really against the respondent and not in his favour.

It is clearly pointed out in Arukkaniammal v. Gunisamy 100 L.W. 707, that the power of the court to set aside the order has to be exercised

judicially. Unless, sufficient cause is shown for non-appearance on the date on which the suit is fixed for hearing, there will be no jurisdiction or

justification for the trial court to set aside the ex parte decree. This principle will apply to the orders of dismissal for default also. If that principle is

applied, the court below has no jurisdiction to condone the delay of 104 days in seeking to set aside the order of dismissal for default.

In the result, the order of the court below is wholly unsustainable and it is hereby set aside. The Civil Revision Petition is allowed and I.A. No.

390 of 1990 is dismissed. However, there will be no order as to costs.