Skip to content


Bilasirai Laxminarayan Vs. Cursondas Damodardas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 13 of 1919
Judge
Reported in(1919)21BOMLR952
AppellantBilasirai Laxminarayan
RespondentCursondas Damodardas
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), o. ix, rule 8 and 9-dismissal of suit for non-appearance of the plaintiff-suit should be restored on board if sufficient cause shown by the plaintiff.;order ix, rule 9, of the code of civil procedure makes it compulsory on a court to set aside a dismissal under order ix, rule 8, where the plaintiff satisfies the court that there was sufficient cause for non-appearance. it cannot take away the court's power to restore the case for any other valid reason.;lalta prasad v. ram karan (1912) i.l.r. 34 all. 426, followed. - .....about 12-30 noon and soon after he returned i came with him to the court but 1 found that the suit was called on and dismissed. as the suit was fourteenth on the board list for that day i did not expect it to be called on before 1 p. m. 2. the learned judge did not think that the facts alleged in that affidavit provided sufficient cause under order ix, rule 9, and he said he was bound by the precedent in the case of manilal dhunji v. gulam husein vazeer i.l.r. 38(1888) 13 bom. 12. but it is difficult to see how a decision of one judge on the facts before him, that sufficient cause has not been shown for the restoration of a suit, can provide a precedent for other judges on similar applications. on questions of fact or matters of discretion there can be no precedent. each judge is.....
Judgment:

Norman Macleod, C.J.

1. This suit was called on for hearing on the 7th of January 1919, when counsel, who had been instructed on behalf of the plaintiff, finding that his client was not in Court to give evidence, asked for an adjournment. The defendant appeared and opposed the application, which was refused, and thereafter the suit was dismissed under Order IX, Rule 8. The plaintiff then asked for the restoration of the suit on the grounds mentioned in his affidavit of the 21st of January 1919. In para 4 he said :

I say that I could not attend the Court in time as I had been that morning to the firm of Messrs. Sadnsukh Gambhirchand to bring with me to Court Mr. Revamal Kasturchand the Moonim of the said firm who is my principal witness in this suit. I had been to the said firm to fetch the Moonim at about 11 A. M. but was told that the Moonim was out and would soon return. As I was told that he would soon return I waited for him. The said Moonim returned about 12-30 noon and soon after he returned I came with him to the Court but 1 found that the suit was called on and dismissed. As the suit was fourteenth on the Board List for that day I did not expect it to be called on before 1 P. M.

2. The learned Judge did not think that the facts alleged in that affidavit provided sufficient cause under Order IX, Rule 9, and he said he was bound by the precedent in the case of Manilal Dhunji v. Gulam Husein Vazeer I.L.R. 38(1888) 13 Bom. 12. But it is difficult to see how a decision of one Judge on the facts before him, that sufficient cause has not been shown for the restoration of a suit, can provide a precedent for other Judges on similar applications. On questions of fact or matters of discretion there can be no precedent. Each Judge is entitled to come to the conclusion he thinks right on questions of fact and in matters of discretion. Apart from that I agree with the remarks of the learned Judges in Lalta Prasad v. Ram Karan I.L.R (1912) All. 426, Their Lordships say:

On appeal, we are asked to hold that there was sufficient cause. While we think that it might be difficult to hold that there was sufficient cause in view of the fact that the case was actually called and repeatedly called for 20 minutes in the manner in which cases are called in mofussil Courts both within the Court room and outside the Court room, so that persons in attendance in the Court compound were sure to hear, we are of opinion that the case is one of those in which the Court may exercise its inherent powers of passing orders necessary for the ends of justice. Nothing in the Code of Civil Procedure can limit or otherwise affect such powers under which, in our opinion, a Court can restore such a case as this on grounds other than sufficient cause for non-appearance. Order IX, Rule 9, makes it compulsory on a Court to set aside a dismissal under Order IX, Rule 8, where the plaintiff satisfies the Court that there was sufficient cause for non-appearance. It, however, cannot take away the Court's power to restore the ease for any other valid reason.

3. I am of opinion that this is a case in which, whether there was sufficient cause or not, we should exercise the inherent jurisdiction of the Court for the ends of justice, provided the defendants are amply protected in the matter of costs.

4. The plaintiff must pay the costs of the adjournment and any costs caused to the defendants by his non-appearance including the costs of his application of the 23rd of January 1919. Those must be paid before the suit can be restored. Then, he must deposit Rs. 1000 for the security of defendants' costs, and on those costs being paid and the security given, the suit must be restored.

5. The costs of this appeal to be costs in the cause.

6. The security to be furnished within three weeks.

Heaton J.

7. concur.


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