Skip to content


Manilal Dhunji Vs. Gulam HuseIn Vazeer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom12
AppellantManilal Dhunji
RespondentGulam HuseIn Vazeer
Excerpt:
practice - procedure--civil procedure code (act xiv of 1883), section 103--application to set aside order of dismissal made under section 102--sufficient cause for non-appearance of plaintiff when suit called on for hearing. - - i am of opinion that the cause of his failure to appear was not such as can be called a bond fide mistake, and that the cases of the oriental finance corporation, limited v. 329 at page 333, lord justice lush, in dealing with the causes for which a non-suit may be set aside, quotes the words 'in any case of mistake, surprise, or accident' as 'large enough to embrace every contingency to which the failure may be attributed which reasonably entitles the plaintiff to have the validity of his demand effectually tried......true, i have to determine whether he was prevented by any sufficient cause from appearing when the suit was called on for hearing.' he was in the court-house on the appointed day, and waited for some time, as the judge happened to be sitting on the appellate side. then, thinking that a part-heard case standing above his suit on the list would take up time, he left the court-house and went to against his employer, who had sent a messenger to call him to explain some part of some mercantile transaction. when the applicant returned in about half an hour, he found that his suit had been called on for hearing and dismissed. it is the practice of my court to leave all the cases on the day's list to be called on at any time during the day, unless an order is made on motion, or unless and until.....
Judgment:

Jardine, J.

1. The matter for decision is one of general importance to suitors whose cases appear on the daily lists. One of the plaintiffs applies, under Section 103 of the Civil Procedure Code, for an order to set aside a dismissal under Section 102. The applicant has filed three affidavits. Assuming, as I do, that the facts therein stated are true, I have to determine whether he was prevented by any sufficient cause from appearing when the suit was called on for hearing.' He was in the court-house on the appointed day, and waited for some time, as the Judge happened to be sitting on the appellate side. Then, thinking that a part-heard case standing above his suit on the list would take up time, he left the court-house and went to against his employer, who had sent a messenger to call him to explain some part of some mercantile transaction. When the applicant returned in about half an hour, he found that his suit had been called on for hearing and dismissed. It is the practice of my Court to leave all the cases on the day's list to be called on at any time during the day, unless an order is made on motion, or unless and until the Court announces that certain cases will not be taken up that day. The affidavit of the applicant shows dearly that he was aware of the continuing liability of his case to be called on during the day. I am of opinion that the cause of his failure to appear was not such as can be called a bond fide mistake, and that the cases of The Oriental Finance Corporation, Limited v. The Mercantile Credit and Finance Corporation, Limited 2 Bom. H.C. R 267 and Haradatri Shrikisondas v. Victoria Finance and Bullion Association 3 Bom. H.C. R O.C.J.. 60 do not apply in his favour to the facts of this case, which are also different to those in Burgoin v. Taylor L.R. 9 Ch. Div. 1. But in Poyser v. Minors L.R. 7 Q.B. Div. 329 at page 333, Lord Justice Lush, in dealing with the causes for which a non-suit may be set aside, quotes the words 'in any case of mistake, surprise, or accident' as 'large enough to embrace every contingency to which the failure may be attributed which reasonably entitles the plaintiff to have the validity of his demand effectually tried.' I will put the question, whether there is any ground for relief on account of surprise or accident, which were the grounds of relief in two Cases in the reports, viz., Rowley v. Carter 1 Y. and J. p. 511 and Attorney General v. Fellows 6 Mad. 111. I think not. The applicant was not taken unawares. What happened was due to his own rashness (Story's Equity Jurisprudence, Section 250, note). No accident intervened such as a sudden event, or illness, or stoppage of means of communication. The applicant was under no compulsion to leave the courthouse: nor was his absence due to any weighty cause, as in Hale v. Lewis 2 Keen. 318 where the affidavit states that the plaintiff's solicitor was compelled, on the day upon which the cause came on to be heard, to attend at the trial of an indictment involving the life of a person. I am of opinion that in leaving the courthouse, as he did, the applicant accepted the risk of the case being called on is his absence, that he was not 'prevented' from appearing when the suit was called on for hearing, and that he was absent by his own act. I therefore refuse to make an order to set aside the dismissal of his suit.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //