T.N. Singh, J.
1. This is plaintiffs application which challenges validity of the order passed on 21-12-81 by the trial Court by which the said Court refused to set aside the order passed on 11-12-80 dismissing the suit for default.
2. However, the threshold objection to the maintainability of the petition raised by the learned counsel for the O. P. No. 1 has to be considered first before dealing with the merits of the petitioner's grievance. Mr. B. C. Sarma, appearing for O. P. No. 1, contends that this revision application is not maintainable inasmuch as the impugned order must be deemed to be an order passed under Order 9, Rule 9 CPC against which an appeal lies. His submission is that although the plaintiff petitioner had filed the application against the order dismissing the suit under Order 9 Rule 4 CPC treating the said order as one passed under Rule 3 thereof the said order on the facts of the case could only be an order contemplated under Rule 8. Because, submits learned counsel, on 11-4-80 when the suit was dismissed for default, the defendant/O. P. 1 was present in the Court and therefore Rule 3 of Order 9 could not be attracted.
3. It is true that in the order dt. 11-12-80 it was merely mentioned that when the suit was called on for hearing the plaintiff was found absent and the order on its face does not manifest that 'neither party' appeared when the suit was called on for hearing as contemplated under Order 9 Rule 3. However, Mr. B. C. Sarma, learned counsel for the plaintiff/petitioner made a three-fold submission
to rebut the contention. His first submission is that the impugned order dt. 21-12-81 ex facie shows that the Court itself accepted the position that on 11-12-80 the order dismissing the suit was passed under Rule 3 of Order 9 CPC as it is mentioned in the order the arguments were heard under Rule 4 thereof. His next submission is that although the application for setting aside the order passed on 11-12-80 was manifestly made under Rule 4 of Order 9 and the O. Ps. had opportunity to contest the application, none did. Indeed, submits learned counsel, O. P. No. 1 appeard in the Misc. Case No, 9/81 in which the plaintiffs application was heard but, as per order passed therein on 4-11-81, he filed no objection and accordingly the Court fixed 21-12-81 for ex parte hearing of the Misc. case. It is further submitted that even in this Court at para 5 of the petition the plain tiff/petitioner made a categorical statement that defendants did not appear to contest the suit on 11-12-80. Yet, O. P. No. 1 who is opposing the revision application has not contested this position and indeed he has filed no counter at all to rebut any statements and submissions made by the petitioner in the revision petition. The last submission of Mr. Sarma is that the order dated
11-12-80 could not be an order under Rule 8 of Order 9 because the presence of the defendant on that date to contest the suit is not recorded therein.
4. I have no doubt that the preliminary objection must fail because there is much substance in the submissions made by Mr. Sarma. I am clearly of the opinion that merely because only plaintiffs absence was recorded in the order passed on 11-12-80 it did not cease to be an order under Rule 3 of Order 9. It is only when a Court is cognizant of defendant's presence on the date fixed for peremptory hearing of the suit despite the absence of the plaintiff that Rule 8 is attracted. Neither in the order passed on 11-12-80 in the main suit, nor in the subsequent order passed on 21-12-81 in the Misc. case, it is manifested that the Court was cognizant of the fact that the defendant was present in the Court to contest the suit when the suit was called on for hearing on 11-12-80. For the first time in this Court, Mr. B. C. Sarma has, in the course of his arguments, referred to the hazira filed on 11-12-80 in the suit by the defendant/O. P. No. 1 to support his contention. By merely filing hazira in my opinion, the requirement of Rule 8 is not satisfied.
Because, the hazira does not conclusively establish the position that the defendant was present when the suit was called on for hearing. Because, before the order contemplated under Order 9 Rule 8 is passed, he must physically appear before the Court, either personally or through counsel to enable the Court to hear him before passing the order. It is necessary for the Court to be satisfied that defendant has not admitted any part of plaintiffs claim which requirement is clearly projected in the language of Rule 8. The Court cannot dismiss the suit in toto merely to penalise the plaintiff for his absence. Rules of procedure, in my opinion, are to be so construed as to advance and not defeat, the remedy. Indeed, Rule 1 of Order 9 indicates that the date for peremptory hearing is fixed 'for the defendant to appear and answer'. Because he is required to be present in the Court on the date to 'answer' plaintiffs claim, the Court has to hear him before passing the order and therefore his presence must be recorded before any order can be passed under Order 9 Rule 8 CPC. This requirement is implicit in the language of Rule 8 and mainly its object. On the other hand Rule 3 does not inhere this mandate.
5. Thus, in my opinion, though the trial Court merely referred in its order dt. 11-12-80 to plaintiffs absence and not also to defendant's absence, the order must be construed to be an order passed under Rule 3 of Order 9 and not under Rule 8 thereof inasmuch as the requirement of Rule 8 is admittedly not satisfied and, on the other hand Rule 3 unlike Rule 8 does not envisage a similar requirement of recording absence of both sides, according to me. In my opinion, the impugned order clearly establishes the position that the trial Court had as if mentioned in the said order passed the order dt. 11-12-80 under Rule 3 of Order 9. Mere non-mentioning in the order absence of 'either party' would not take it out of the purview of Rule 3. How the Court had actually acted on 11-12-80 is found expressed in the impugned order itself. Accordingly I find no merit in the preliminary objection and reject the same upon holding that the impugned order being an order passed under Order 9 Rule 3 no appeal lies against the same which can, therefore, be challenged under Section 115, CPC.
6. I may now come to the merits of petitioner's grievance which, in my opinion, is genuine and substantial. The trial Court appears to have misconceived, according to me, the scope and its power and jurisdiction under
Order 9 Rule 4. It is true that rule 4 requires the plaintiff to 'satisfy' the Court that there was sufficient cause for his non-appearance; the Court nonetheless is required to act judicially thereunder in exercising its jurisdiction while taking a decision in the matter or setting aside the order of dismissal passed under Rule 3 this connection it is to be noted that unlike the rule 8 which postulates that the Court 'shall' make an order dismissing the suit. What is contemplated under Rule 3 is that the Court 'may' make a similar order when the circumstances of the case warrant such an action. In the instant case, the Court refused to take notice of the important circumstance that the prayer for restoration made by the plaintiff under rule 4 was not opposed by the defendants. It further failed to note the position that the suit of which the restoration was sought was a suit for partition of family properties and it might well have been due to this fact that the defendants, all or at least some of them, might themselves be interested to have a decision in the suit. The term 'sufficient cause' is not a catchword and in the context of Rule 4 it must be given a meaning to embrace all relevant circumstances having bearing on the rights and obligations of either party to the suit.
7. Learned Asst. Dist Judge passed the impugned order after recording the finding that the petitioner had failed to make out 'sufficient cause' for restoration of the suit. The petitioner's case was that due to students' movement the offices could not function regularly and as such he was unable to summon his witnesses and be ready for hearing on the date fixed therefor, namely 11-12-80. Accordingly, he asked his advocate's clerk ('Mohorir') to take steps for adjournment but the latter could not do so due to his son's illness. Besides the 'Mohorir' the petitioner examined himself also and deposed that he had to go elsewhere on 11-12-80 and for that reason he could not be personally present in the Court and he had to give instructions to the Advocate Clerk to take necessary steps for adjournment. This was held by the learned Asstt. Dist. Judge not to be a 'sufficient order' for restoration. He took the view that the petitioner should have attended the Court personally to pray for adjournment of the case on the ground of non-production of witnesses. This opinion is entirely an erroneous appreciation of jurisdictional facts. The term
'appearance' used in order 9 in its different rules has a well-known connotation. It is well established that 'appearance' of the parties may be through a counsel and therefore if the petitioner took steps for ensuring appearance of the counsel through his clerk on that date there was, in my opinion sufficient cause, adequately made out, to satisfy the requirement of rule 4. In this connection I may refer to the decision reported in AIR 1983 SC 318 (Savithri v. Artha Karttik) wherein their Lordships held that non-appearance of counsel should be regarded as sufficient cause for setting aside an ex parte order to make a prayer for adjournment it was not necessary for the petitioner to be personally present and further, as he had to leave station, he could only instruct his Tadbirkar, who was none else than his Advocate's clerk, to take steps for adjournment. Learned Asstt. Dist. Judge overlooked the admitted position that due to valid reasons steps for summoning witnesses could not be taken and therefore on the date fixed, namely 11-12-80, hearing of the case could not proceed due to which the physical presence of the plaintiff on that date was not indispensable.
8. Besides, I find it difficult to accept learned Asstt. Dist. Judge's view that the plaintiff was not 'vigilant' in prosecuting the suit and as this consideration also weighed with him in passing the impugned order, on this ground also the order must be held to be vitiated. No doubt, the first date for peremptory hearing of the suit was fixed as early as on 10-1-77 but on that date it was the defendant who sought adjournment. On the next date, namely 8-3-77, the case was adjourned on the joint prayer of both sides and thereafter, on 29-4-77, the defendant again made prayer for adjournment on the ground that some records have to be called for. His prayer was allowed and records were called for and for this indeed the Court had to wait until 4-10-80 when it passed the order that records have been received after a long wait and the case was fixed for peremptory hearing on 11-12-80. On these facts I feel constrained to hold that the finding of trial Court that though it was 'an old pending' case the petitioner was not 'vigilant' in prosecuting the same is a perverse finding and on this finding the impugned order cannot be sustained in law.
9. In the result, this application succeeds and is allowed. The impugned order dt. 21-12-80 is set aside. Learned Asst. Dist. Judge Gauhati shall take back the suit on file and proceed with trial thereof from the stage where it stood on 11-12-80. However, in the facts and circumstances of the case I make no order as to costs.
10. Let the records be sent down forthwith to enable the Court below to proceed with the trial of the suit with utmost expedition and due dispatch.