1. This is an appeal from an order of the IInd Civil Judge, Kanpur, dated 28-5-57 refusing to restore the suit dismissed for non-appearance of the plaintiff.
2. The plaintiff firm filed a suit through its partner Sri Padampat Singhania tor recovery of Rs. 4,11,367/14/9 against the defendants on 18-5-53. The defendants filed written statements denying the claim and pleading a bar of limitation. Issues were struck on 1-2-54. Thereafter, several adjournments of the date fixed for hearing were made by the court, both suo motu and at the instance of the parties. Four such latter adjournments had been obtained by the defendants and three by the plaintiffs.
3. On 8-12-55 the case was transferred to the file of the IInd Civil Judge, Kanpur, who eventually fixed 23-5-56 for final hearing of the suit. On 22-5-56 an application was filed by one P. C. Jain on behalf of the plaintiff for adjournment On the ground that the Plaintiff's senior counsel, Sri Rammath Seth, had gone to England and that his presence was necessary for the proper prosecution of the case. The defendants' counsel Sri Devendra Swarup made the following endorsement on the said application: 'No objection on personal ground of Mr. Seth.'
The application for adjournment was rejected by the Civil Judge on 23-5-56 on the finding that P. C. Jain was neither a party nor counsel nor an authorised agent of the plaintiff and, as such, the application could not be taken to have been properly presented. A second application was then moved by Sri Gopinath Dikshit, counsel of the plaintiff, accompanied by an affidavit. The court ordered the application to be put up for disposal on 24-5-56, observing that the defendants wanted time to meet the allegations of the plaintiff. It was also ordered that parties should come prepared with their evidence. On 24-5-56 Sri Gopinath Dikshit, counsel of the plaintiff informed the court that he had no instructions to press the application for adjournment. Thereupon the court rejected the application, holding that the affidavit filed in support of the application had not been properly sworn and that the counsel representing the plaintiff had stated that he had no instructions. The suit was accordingly dismissed for default of the plaintiff.
4. The plaintiff then moved an application for the restoration of the suit and filed an affidavit in support thereof, alleging that Sri Ramnath Seth, Advocate for the plaintiff, who was the counsel in charge of the case, had gone to England and that it was not possible for theplaintiff to properly prosecute the case in his absence. It was further alleged that on 24-5-56 P. C. Jain left the court to call the witnessesbut by the time he returned the suit had been dismissed for default. It was stated that the plaintiff had been doing his best to produce evidence in the case but was prevented by unforeseen circumstances from doing so. The defendants opposed the application for restoration on the ground that the plaintiff had been guilty of negligence and that sufficient cause had not been shown for the restoration of the suit. It was further alleged in their reply by the defendants that no cause had been shown for the absence of Sri Padampat Singhania on the 23rd and the 24th May 1956.
The defendants, however, did not file any counter-affidavit controverting the allegations made on behalf of the plaintiff in the affidavit. The Civil Judge rejected the application for restoration of the suit on 28-5-57 as said above. The Civil Judge held that the plaintiff had not been prosecuting the suit diligently and that ''the plaintiff's pairokar P. C. Jain had deliberately omitted to give instructions to Sri Dikshit to Conduct the case on 24-5-56 and got the suit dismissed for default in order that the plaintiff may gain time and have the suit restored later. The court, however, rejected the contention of the defendants that the order of dismissal of the suit was one under Order 17, Rule 3, Civil P. C. It was of the opinion that the dismissal order falls under Order 9, Rule 8 because or the absence of the plaintiff.
5. It is against this order that the present appeal has been directed.
6. On behalf of the plaintiff it was argued that the Civil Judge had erred in holding that the plaintiff was negligent in prosecuting the suit and that the application for adjournment was got dismissed by him deliberately and that he acted mala fide in getting the suit dismissed for default. It was contended that the allegations made by the plaintiff in his affidavit in support of the restoration application had remained uncontroverted and the defendants had not filed any counter-affidavit challenging the facts set out in the plaintiff's affidavit. The court below was, therefore, in error in holding that the plaintiff was negligent or that his pairokar had acted mala fide in the prosecution of the application for adjournment.
7. The contentions raised on behalf of the defendants were, firstly that the order of dismissal by the Civil Judge ought) to be regarded as made under Order XVII, Rule 3, C. P. C., inasmuch as the plaintiff's counsel Sri Dikshit had signed the restoration application and was present on 24-5-56 when the said application came on before the court for disposal. His statement that he had no instructions to press the application was a device to get round the provisions of Order XVII, Rule 3 and, as such, amounted to an abuse of the provisions of law by putting up a false case before the court; and, secondly, that even if the order of dismissal were to be construed as one under Order 9, Rule 8 C. P. C., the discretion exercised by the court below in dismissing the suits for default of appearance should not be interfered with as the plaintiff was negligent in the prosecution of the suit and had not shown sufficient cause for his non-appearance on the date of hearing.
8. In order to appreciate the rival contentions raised by the counsel of the parties before us it becomes necessary to refer to the relevant provisions of the Code of Civil Procedure in relation to the power of the court to grant adjournments.
9. Order 17 C. P. C. empowers the Court to grant adjournments. Rule 1; authorises the Court, at any stage of the suit, to adjourn the case from time to time if sufficient cause is shown. Rule 2 of Order 17, C. P. C, as amended by this Court, is as follows:
'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 IX, or make such other order as it thinks fit. Where the evidence, or a substantial portion of the evidence, of any party has already been recorded, and such party fails to appear on such day, the court may in its discretion proceed with the case as if such party were present and may dispose of it on the merits.
Explanation: No party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader though engaged for the purpose of making an application.'
10. It would appear that Rule 2 consists of two parts. The first part deals with a case where the hearing is adjourned by the court suo motu or at the instance of the parties, and the parties, or any of them, fail to appear on the adjourned date. The second part deals with a case where the evidence, or a substantial portion of the evidence, of any party has already been recorded and such party fails to appear on such day.
11. Rule 2, therefore, deals with a case in which, one of the parties in fact fails to appear on the adjourned date of hearing. If the case falls under the first part of Rule 2 and the plaintiff is absent, the court may dismiss the suit for default under Order 9, Rule 8, and if the defendant is absent, decree the suit ex parte under Order 9, Rules 6, 11 or 12 or may make such other order as it thinks fit.
12. If, however, the second part of Rule-2 applies, that is, if the evidence or a substantial person of the evidence of a party has been recorded and such party fails to appear on the adjourned date of hearing, the court may proceed to decide the case on merits even though the party is in fact absent. The explanation added to Rule 2 by this Court sets out the circumstances under which a party is not deemed to have failed to appear. According to the explanation if a party is personally present oris represented in court by an agent or pleader, though engaged for the limited purpose of making an application, it would be deemed as if the party was actually present on the adjourned date of hearing. In such an event the court has power to decide the case on merits.
13. Rule 3 of Order 17, as amended by this Court, reads thus :
'Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith.'
Rule 3 would apply to a case when (a) the adjournment is granted at the instance of a party to the suit; (b) when the purpose of adjournment is to enable the party applying for such adjournment to perform any act necessary to the further progress of the suit; and (c) when the party to whom time was granted commits default in not performing the act.
14. The language of Rule 3 makes it clear that if a party has committed a default in doing the act for which adjournment was granted to him the court may pass a decree on merits whether the party appears in court or not. In such a case the question of the presence or absence of the party concerned on the adjourned dateof hearing is wholly irrelevant, because what the court really does is that it passes a decree against the party in default by way of penalty.
15. It was vehemently contended by Sri Kanhaiya Lal Misra, learned counsel appearingfor the defendants, that the plaintiff must be deemed to be present on 24-5-56 when the suit was dismissed for default. The argument of the learned counsel was that Sri Dikshit, counsel for the plaintiff, had actually appeared in court on that date and his statement that he had, no instructions to press the adjournment application could not take the case out of the explanation to Rule 2. It was pointed out that Sri Dikshit was a pleader duly appointed by the plaintiff to act in court On his behalf and filed a vakalatnama in the suit which empowered him to act on behalf of the plaintiff. He could not, therefore determine his appointment as pleader without the leave of the court Strong reliance was placed on the provisions of Order 3, Rule 4(2) C. P. C. and it was contended that Sri Dikshit could not withdraw from the case without the permission of the court and a writing signed by his client, that it must be held that the plaintiff was represented in court by his pleader on the adjourned date of hearing, and that in the circumstances the plaintiff could not be said to have failed to appear. The argument as presented, though attractive, will not bear close scrutiny.
16. The vakalatnama filed by Sri Dikshit in the suit could not make him constructively appear in a proceeding in which he had explicitly stated that he did not appear. The statute does not require a writing containing the withdrawal of the pleader in any specified form. In RadhaKishan v. Collector of Jaunpur, ILR 23 All 220(PC) the facts were these. On the day fixed for hearing the pleader for the defendant stated that he could not conduct the case as he had received no instructions from his client. Thereupon the court proceeded to try the case and decreed the suit against the defendants. The Privy Council held that when a pleader for a party appears in court and makes a statement that he has no instructions to conduct the case, the party could not be said, under the circumstances, to have appeared.
17. In Gopal Singh v. Kailash Gir : AIR1933All652 a Division Bench of this Gour pointed out that a distinction is to be drawn, between the case of a pleader who staves that he has no instructions for a limited purpose of making an application for adjournment, etc. The learned Judges observed that:
'the case of a pleader who says that he has no instructions does not come under the explanation to Rule 2 of Order 17. If we were to hold otherwise and accent the argument of the learned counsel for the appellant, we would be holding that it was impossible for a pleader who wishes to withdraw for representing a party to do so, and we do not consider that there is any authority under the explanation to this Rule or otherwise for such a proposition.'
It was held in that case that the counsel could not he treated as representing the defendants when he stated that he had no instructions. We respectfully concur with the above view and hold that when the counsel of a party makes a statement in court that he has no instructions to proceed with an application made by him, it must be held that he had ceased to represent the party because it would be inconsistent to hold that a pleader who has no instructions to proceed with the case still holds authority to represent his client for the purpose of the case.
18. In the present case it cannot be said that 'time was granted' at the instance of the plaintiff to do any act on 25-5-56. The plaintiff had asked for a long adjournment on the ground of absence of his senior counsel in England. He had not applied to the court for time to produce his evidence, or to do any other act necessary to the further progress of the suit. The court had suo motu adjourned the hearing of the application to the 24th May 1956 and had without any request on the part of the parties ordered them to produce their evidence on the following day. Under these circumstances the court could not have acted under Order XVII, Rule 3, CPC. The order passed by the court below, therefore, fell under Order IX, Rule 8 CPC as being one of dismissal for default of appearance of the plaintiff.
19. It now remains to consider as to whether the plaintiff had succeeded in showing sufficient cause for his absence on 24-5-56, the adjourned date of hearing. The affidavit filed by P. C. Jain in support of the restoration application stated that when the witnesses of the plaintiff did not turn by 10.15 a.m. he became very anxious and left the court to fetch them, thatwhen he returned at about 11.15 a. m. he discovered that the case had been dismissed for default of appearance of the plaintiff. It was further stated that Sri Dikshit, a counsel for the plaintiff, having withdrawn from the case it was not possible to instruct him any more about the case. Thus, in spite of due diligence On the part of the plaintiff, he could not produce his evidence in time. The defendants filed an objection by way of reply to the plaintiff's application for restoration. They did not, however, challenge the allegations contained in the affidavit of P. C. Jain.
20. The learned counsel for the defendants sought to argue that it was not necessary to file any counter-affidavit as the allegations of the plaintiff were on the face of it absurd and self-contradictory. We do not think it is open to a party to brush aside the averments of his opponent by merely seating that the allegations were untrue. A statement on oath whether true or false, has to be met by a counter-affidavit in reply, or by challenging the statement by cross-examining the deponent. If that is not done it would be presumed that the allegations, if untrue, would have been rebutted by the other side.
21. In Mehta Parikh and Co. v. Commr. of Income Tax, Bombay : 30ITR181b(SC) the facts were that both the Income-tax Officer and the Appellate Assistant Commissioner discounted the suggestion of the assessee by holding that it was impossible that he had on hand on 12-1-56,61 high denomination currency notes of RS. 1,000/- each including a cash balance of Rs. 69,000/- and odd. This was considered impossible both by the Income Tax Officer and the Appellate Assistant Commissioner as they could not consider it within the bounds of possibility that each and every payment received by the assesses after 2-1-47 in multiples of 1,000 or over 1000 was received by him in high denomination notes of Rs. 1000/- each. The assesses filed affidavits in support of their case. Neither the Appellate Assistant Commissioner nor the Income Tax Officer considered it necessary to call, for them (assessees) in order to cross-examine them with reference to the statements made by them in their affidavits. Under these circumstances the Supreme Court held that-
'it was not open to the revenue authorities to challenge the correctness of cash book entries or the statements made by those deponents in their affidavits. This being the position, the state of affairs as it obtained on 12-1-46 had got to be appreciated having regard to, those entries in the cash books and the affidavits filed before the Appellate Assistant Commissioner taking them at their face value.'
22. Here also the court below had before it a duly sworn affidavit of the pairokar of the plaintiff in support of his application and there was no counter-affidavit in traverse of the allegations contained in that affidavit. Under the circumstances it was not open to the court to disbelieve the version of the plaintiff that he had brought his witnesses to the court on24-5-56 shortly after the dismissal of the adjournment application.
23. The last argument advanced by the learned, counsel for the defendants that the conduct of the plaintiff's counsel Sri Dikshit in withdrawing, from the case amounted to a fraud on the provisions of law, does not merit serious consideration. The reply filed by the defendants to the application for restoration did not contain any allegation about the misconduct of the counsel. Moreover, this was a matter which could not be investigated by the court at that stage. The fact remained that Sri Dikshit, counsel for the plaintiff, had reported, that he had no instructions in the case and, therefore, he could no longer represent the plaintiff so far as those proceedings were concerned, and it was wholly irrelevant to consider whether the conduct of the plaintiff's counsel was motivated by extraneous considerations.
24. The learned Judge passed the order under appeal refusing to re-open the case because in his opinion sufficient cause had not been shown for the non-appearance of the plaintiff on that date. The explanation offered by the pairokar of the plaintiff in his affidavit having remained unrebutted, it could not be sale that the plaintiff was not acting honestly or was not interested in prosecuting the case. If the party was trying to appear on the date fixed in the case and if he made honest efforts in that behalf, even though the manner in which he proceeded about the task was not likely to achieve the purpose, it could not be said that the party had misconducted himself or acted with gross negligence. It is no doubt true that the manner in which P. C. Jain set about collecting witnesses was an unpractical way of doing it. Even so, it could not be held that the plaintiff was negligent
25. It was also pressed upon us in arguments by the learned counsel for the defendants that it had not been shown as to why Sri Padampati Singhania did not appear in court on the adjourned date of hearing, particularly when it was the plaintiff's own case that he was the most important witness in the case. No attempt was made by the defendants to elicit facts from P. C. Jain by asking the court to summon him for cross-examination. In the absence of any Tenable evidence on the side of the defendants, it is not possible to hold that the plaintiff's absence from the witness-stand on the adjourned date of hearing was deliberate or mala ride-There may have been a certain amount of carelessness and want of forethought on the part of P. C. Jain, in not bringing the witnesses to court aft 10 a.m. but this by itself would not constitute misconduct or gross negligence so as to disentitle the plaintiff to the relief sought by him.
26. A re-grettable feature of this case was that repeated adjournments granted by the court to the parties appear to have induced a beliefs albeit an erroneous, belief, that postponement of the case could be had by them on the ground of convenience of theirI counsel. Adjournments had been granted to them on three previous occasions on the footing that the counsel had no objection. It is, therefore, no wonder that this impression persisted when the plaintiff approached the court for adjournment on 23-5-56 and 24-5-56.
27. Before we part with this case we would like to observe that the case had been pending on the file of the Civil Judge since 1953 but no progress appears to have been made towards the disposal of the case. It is hoped that the court below will now proceed to dispose of it as expeditiously as possible.
28. After having given our anxious consideration to the facts of the case we have cometo the conclusion that this, appeal must be allowedand the order refusing to restore the suit vacated. We, therefore, direct that the suit would berestored on condition that the plaintiff pays asum of Rs. 250/- to the defendants within onemonth from the date of this order. The partieswill bear their own costs of this appeal.