S.M. Ali, J.
1. Here is an instance of delay in justice mainly due to the lack of application of judicial mind by the Court.
2. The plaintiff-petitioner brought a suit in the Court of learned Assistant District Judge No. 1, Cachar at Silchar for partition of the suit property as described in the plaint of the suit among the plaintiff and defendants-opposite parties. The defendants-opposite parties in their written statement objected to the sufficiency of the court fees filed by the plaintiff-petitioner and the learned court took up the matter for decision as a preliminary issue as to whether the court fees were deficit or sufficient. The issue was settled on 1-11-76 and hearing on this issue was fixed ultimately on 14-12-77, there having been a number of adjournments in between the two dates. Now on 14-12-77 when the matter was taken up for hearing as Issue No. 4. a petition was filed on behalf of the plaintiff petitioner for adjournment of hearing on the ground that the plaintiff was unwell. But the learned trial court dismissed the suit for default after having rejected the petition of adjournment. The relevant order of the learned trial court is reproduced below :--
'The suit is taken up for hearing and the Issue No. 4 learned advocates for the plaintiff and the defendants are present. The plaintiff has filed petition No. 418 praying for adjournment on the ground that the plaintiff Basanta Kumar Nag Choudhury is laid up with blood pressure disease. The learned advocate for the plaintiff Shri S. C. Bhattacharjee has reported that he has filed the petition on the instructions of the plaintiff's son Harendra Kumar Nag Choudhury. But on repeated calls the said Harendra is found absent in the court. It is therefore evident that the plaintiff has been evading any hearing of any matter relating to the suit. Thus there is every reason to believe that the plaintiff is not only not diligent but also trying to delay the disposal of the suit. The petition is therefore rejected. The suit is dismissed for the default of the plaintiff with costs.'
3. Against this order a Misc. Case was started on the petition of the plaintiff under Order 9. Rule 9 C. P. C. for restoration of the suit. The Misc. case was numbered as Misc. Case No. 2 of 1978. After hearing the parties the learned Assistant District Judge dismissed the Misc. case on contest with costs of Rs. 100/-. In the Misc. case two witnesses were examined for the plaintiff-petitioner including the Medical Doctor under whose treatment the plaintiff was placed and who issued a certificate of illness of the plaintiff. The plaintiff's son Harendra Kumar Nag Choudhury was also examined as a witness. The learned court dismissed the Misc. case on the ground that he did not believe the evidence of the doctor and the medical certificate issued by him that all along Harendra Kumar Nag Choudhury, son of the plaintiff and not the plaintiff himself has been present in court on the different dates fixed for the suit, that this Harendra Kumar Nag Choudhury was also found absent on 14-12-77 and that on this date recording of evidence and hearing of arguments of the parties might be required.
4. Against this order of dismissal the plaintiff-petitioner preferred an appeal to the learned District Judge Silchar, in Misc. Appeal No. 16 of 1978. The learned District Judge dismissed the appeal on contest by his order dated 11-5-81 and upheld the order passed by the learned trial court in the Misc. case referred to above. The learned District Judge dismissed the appeal mainly on the grounds that the plaintiff-appellant, who is petitioner in the present revision case took as many as seven dates for hearing of the suit and that ultimately when the date was fixed on 14-12-77 for hearing of the issue, the adjournment petition was filed by the son of the plaintiff on the ground that the plaintiff was suffering from hypertension for which he was unable to attend court, that the medical certificate which was too cryptic and wanting in recording of the blood pressure of the plaintiff inspired no confidence and that even Harendra Kumar Nag Choudhury, son of the plaintiff who had all along been taking steps in the case on behalf of the plaintiff was also found absent on 14-12-77 when the hearing was taken up.
5. Learned counsel of both sides made submissions on points of facts and law, which will be adverted, to later on. But for the moment I would like to set out that part of the record of the suit which is relevant for our purpose here in this case. It is found on record that on 1-11-76 issues were framed. On 26-11-76 being the next date the learned Assistant District Judge was on leave. On the following date i. e. 9-12-76 it was ordered that 'Issue No. 4, whether the suit has been properly valued and proper court fee has been paid' would be taken up for hearing on 12-1-77. On 12-1-77 a petition was filed on behalf of the plaintiff for change of the date of hearing and the learned court allowed the petition and fixed 18-2-77 for the purpose. On 18-2-77 the learned court being engaged in hearing a Sessions case could not take up the matter. On the next date being 2-3-77 the learned court being busy in hearing an old case could not take up the matter. On 10-3-77, 1-4-77, 22-4-77. 20-5-77, 9-6-77 and 25-7-77 the matter could not be taken up by the learned court, he having been engaged in other works. There was no petition for adjournment on behalf of the plaintiff on any of those days as is found from the order sheets recorded by the learned Court. On 14-9-77 the learned court adjourned the hearing on the oral prayer of the learned counsel of both sides. This, however, does not mean that the prayer for adjournment was made on behalf of the plaintiff. The order shows that it was for the convenience of the learned counsel that the hearing was adjourned. On 3-10-77 however, there was a petition on behalf of the plaintiff for adjournment and this was allowed by the learned court as a matter of routine. On 14-11-77 being the next date the learned Assistant District Judge dismissed the application for adjournment on the ground of the plaintiff's illness and dismissed the suit for default of the plaintiff.
6. It is therefore found that on two dates, namely, on 12-1-77 and 3-10-77 there were prayers on behalf of the plaintiff for adjournment and the third day of praying for adjournment on behalf of the plaintiff was 14-12-77. But in the impugned order the learned Appellate court states that the plaintiff-appellant took seven dates viz. 1-4-77. 22-4-77, 20-5-77, 9-6-77, 24-7-77, 14-9-77 and 30-10-77 and final hearing was fixed on 14-12-77, that all these adjournments were taken by one Harendra Kumar Nag Choudhury, son of the plaintiff-appellant on the ground that his father (plaintiff) Basanta Kumar Nag Choudhury, was suffering from hypertension and was therefore unable to attend the court and that the learned trial Judge took 'extraordinary lenient view' and granted series of adjournments only to determine a simple technical point as to whether the plaint was filed with sufficient eourt fee. The learned appellate court also recorded that on 14-12-77 even Harendra Kumar Nag Choudhury. son of the plaintiff was not present in court when the matter was taken up for hearing. The learned appellate court endorsed the view taken by the learned trial court with regard to medical certificate produced in Misc. Case No. 2 of 1978. Mainly on these grounds the learned appellate court upheld the order of dismissal of the suit passed by the learned Asstt. Dist. Judge.
7. It is therefore found that the learned court below misread the record and that they had the impression that on all the dates cited above adjournment was sought for on behalf of the plaintiff whereas except on the last date, namely, 14-12-77 there was prayer for adjournment on behalf of the plaintiff only on two occasions, namely, 12-1-77 and 3-10-77. Yet the aforesaid misreading of the record appears to have had an impact on the mind of the learned trial court in passing its order dated 14-12-77 against the plaintiff. Similarly the learned District Judge misread the record and laid much stress on the supposed prayers of the plaintiff for adjournment with regard to those dates on which no such prayer was as a matter of fact submitted on behalf of the plaintiff for adjournment. Therefore, the order passed by the learned courts be-low cannot be sustained on the ground apart from other considerations that in passing the order they took into consideration some non-existent facts. Of course the trial court has power to reject adjournment prayer on whatever dale of peremptory hearing it is made on behalf of any of the parties and record consequential order. As for instance even on 14-12-77 itself the learned court had the jurisdiction not to entertain the adjournment prayer of the plaintiff and to dismiss the suit for default of the plaintiff. But in considering whether there was sufficient reason for the plaintiff not to appear on 14-12-77 in Misc. Case No. 2 of 1978 vide his order dated 26-7-78 that learned Assistant District Judge appears to have considered the non-existent facts that on all the aforesaid seven dates prior to 14-12-77 it was the plaintiff who prayed for adjournment whereas the plaintiff prayed for adjournment only on two dates before 14-12-77.
The impugaed order of the learned District) Judge suffers from perversity due to the fact that under para 3 of his order dated 11-5-81 in Misc. Appeal No. 16 of 1978 he categorically states that on all those seven dates the plaintiff prayed for adjournment and was granted adjournment and that the prayers were made by the son of the plaintiff. If irrelevant and nonexistent facts are taken into consideration in coming to a finding the finding is perverse and therefore cannot be sustained. The learned counsel for the opposite parties argued that in the present revision case it has to be seen whether the learned District Judge exercised his jurisdiction in a proper way with regard to his finding of the sufficiency of cause for the plaintiff not to appear on 14-12-77 in court. But as said before the learned District Judge exercised his jurisdiction contrary to the law of evidence by considering non-existent facts for which his finding and decision, warrant being set aside,
8. It is found that order passed by the learned trial court could not be under Order 9, Rule 8 C. P. C. Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing the court shall make an order that the suit be dismissed etc. etc. In the present case there is no record by the order dated 14-12-77 that the defendant appeared The fact as it appears from, the order of the trial court dated 14-12-77 is that on that date the defendant also did not appear. That being so the order of the trial court falls under Order 17, Rule 2 which provides that where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit. In the present case it is found that the learned trial court passed the order dated 14-12-77 under Rule 3. Order 9 C. P, C. aad that in that case the plaintiff has his redress under Rule 4, Order 9 C. P. C. As the order could not be made under Order 9, Rule 8 the plaintiff's remedy did not lie under Order 9, Rule 9 C.P.C. Under Order 9, Rule 4 the plaintiff may bring fresh suit or the court may restore the suit to file and in restoring the suit to file the court must be satisfied that there was sufficient cause for non-appearance of the plaintiff. Both the remedies, namely, fresh suit and prayer for restoration are open to the plaintiff at the same time. If he chooses one remedy he is not debarred from availing himself of the other remedy. Remedy under Rule 4, Order 9 is wider than that under Order 9, Rule 9 and where neither party appears on the date of hearing and the suit is dismissed for default under Rule 3, Order 9. less stringent view should be taken in restoring the suit than in any other case.
9. Learned counsel for the petitioner submitted that the learned District Judge took the place of an expert in deciding the genuineness of the medical certificate that was produced before the learned trial court in the Misc. case for restoration to prove the illness of the plaintiff. The Medical Doctor was also examined and cross-examined in the said Misc. case and he corroborated the certificate issued by him. The learned trial Court did not believe this certificate and also the learned appellate court disbelieved it on the ground that the certificate did not contain recording of the blood pressure of the patient. But such non-recording of the detailed symptoms of the patient cannot discredit the certificate issued by the Doctor or his evidence on oath.
10. The learned counsel of both sides cited some rulings of different High Courts in support of their respective arguments but I find that all those rulings are connected with order made under Rule 8, Order 9 C. P. C. As said before the order made by the learned trial court does not fall under Rule 8, Order 9 C.P.C. It was rather made under Order 9. Rule 3 C. P. C., as in the present case the defendant too did not appear on the date of hearing when the suit was dismissed for default for non-appearance of the plaintiff. So, I do not discuss those rulings.
11. It is therefore found that there was no ground to find that the medical certificate and the evidence of the Doctor, can be thrown out as unworthy of credit. There was sufficient cause for the plaintiff not to appear in Court on 14-12-77. The learned District Judge misread the record and misappreciated the evidence.
12. Before parting with the record it should be emphasised that this petition is being allowed in view of the very particular context and the special circumstances as revealed, but this however should not be taken as an instance of relief to be available under all similar circumstances. Trial Courts should always be reluctant to allow adjournment for mere asking. They should however apply judicial mind before passing the required order in such cases. Stern attitude with regard to undue prayer in consonance with the law in that behalf is what is expected of a trial court.
13. The result is that the petition is allowed and the impugned order is set aside and the suit will be restored for hearing according to law. The suit being a very old one, the learned trial court is directed to dispose of within earliest possible time.