V. Manickam Pillai vs Mahudam Bathummal and Others

Wallace, J.—This is a petition for the revision of the order of the Subordinate Judge of Tuticorin setting aside on certain conditions the

dismissal of the plaintiff''s suit for default of appearance. The allegations in the petition to set aside the dismissal were that the plaintiff is a

Mahomedan woman, whose husband had lately died and who therefore could not appear in Court; that on the day of hearing, 6th April, 1922, the

plaintiff''s Vakil appeared before the Court and asked for an adjournment, apparently because the witnesses had not been served and had not

turned up, although batta had been paid for process, that on the adjournment being refused, the Vakil reported no instructions and the suit was

then dismissed for default of appearance.

That an order of dismissal for default of appearance was the proper order in such circumstances has been now clearly laid down by a Full

Bench of this Court in this very case, the question referred to it being whether when a pleader has instructions to apply only for an adjournment and

when the adjournment is refused, it is a case of non-appearance of the party and the dismissal of the suit is for default of appearance.

As to the reasons for non-appearance, even on the facts in the affidavit, the plaintiff''s domestic situation was not preventing her from

prosecuting this suit or from taking out process to the witnesses for the date of hearing and her son was looking after the case for her. In these

circumstances, the lower Court was constrained in its order to admit that:

The allegations in the affidavit are no doubt not sufficient per se to excuse the default. But having regard to the fact that plaintiff is a woman and the

value of the suit is nearly Rs. 10,000, I think the dismissal may be set aside on terms as a matter of grace.

And in consequence, as a matter of grace, it set aside the dismissal. I am asked by the respondent in this petition to hold that what the

Subordinate Judge really meant was that the plaintiff had shown good cause for not appearing. I am quite sure the Subordinate Judge did not mean

this and I agree with him that the plaintiff did not show good cause for not appearing. The setting aside the dismissal was therefore, a mere act of

grace, or clemency on the part of the learned Subordinate Judge. Now Order 9, Rule 9, Civil Procedure Code, gives no power to a Court to set

aside a dismissal of a suit for default of appearance as a matter of grace, nor has a Court any inherent power to do so. I think the principle laid

down in Gadi Neelaveni Vs. Marappareddigari Narayana Reddi, by a Full Bench in interpreting Order 9, Rule 13, Civil Procedure Code, applies

equally to Order 9, Rule 9, Civil Procedure Code. The ruling to the contrary cited by the plaintiff, namely, Gopala Rao v. Maria Susaya Pillai ILR

(1906) M 274 : 17 MLJ 225 was quoted in the discussion in the Full Bench case and has been referred to and implicitly dissented from in the

judgment of the Officiating Chief Justice. It is not therefore open to a Court to set aside, as a matter of grace, a dismissal of a suit for default of

appearance. I think it would introduce a most undesirable element of uncertainty into the trial of cases, if it was to be held that a Court may, as a

matter of grace, go beyond the law of procedure, whenever it feels that that law is acting harshly. It has often been said that hard cases make bad

law, and the present case is no exception. I am bound to hold that the Subordinate Judge had no jurisdiction to pass his order.

When an order is passed wholly without jurisdiction, this Court is bound to interfere and not allow it to remain in force. A party who goes to law

is entitled to insist that the law shall be followed and that an order not in accordance with the law shall not be allowed to be in force. It is urged in

this case, by the plaintiff that, as the petitioner did not apply for any stay of trial, while his Revision Petition was pending, the trial actually went on

and that she has obtained a decree for Rs. 4,000, which decree is now pending appeal in this Court and I am urged not to interfere in revision,

when there has been in fact a trial of the case on the merits between the parties. I feel the weight of this contention; but I am of opinion that it

cannot balance the weight of the other principle already cited, namely, that an order passed without jurisdiction cannot be allowed to remain in

force. I must therefore set aside the order of the lower Court, as passed without jurisdiction, and the dismissal of the suit for default therefore

remains.

As the petitioner, by not applying for the stay of trial, has unnecessarily occasioned much expenditure to the plaintiff, in continuing the trial of the

suit, I refuse him his costs. Each party will bear his own costs here and below.