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Tafazzul and ors. Vs. Shah Mohammad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All261
AppellantTafazzul and ors.
RespondentShah Mohammad and ors.
Excerpt:
.....of the document is that the information of this order was communicated to his pleader's clerk and the pleader's clerk failed to communicate this information to the plaintiff. the word 'default' is not qualified by any adjective and i fail to see why any words should be imported in the section so as to confine its operation to dismissals for default in appearance only. it is a well recognized canon of construction that it is the duty of the court to interpret a section as it exists without adding to it and without subtracting from it. , need not be confined only to default of appearance, but may include other defaults as well. i am in perfect agreement with the two decisions quoted above. i am satisfied that that court has erred in that matter......why legislature should have intended that dismissal for one kind of default will not amount to a decree dismissal for another kind of default will amount to a decree.8. i am, therefore, of the opinion that the order in revision does not amount to a decree and therefore, there is no substance in the preliminary objection raised by the learned counsel for the opposite parties.9. the next point for consideration is if it can be said that the court below has, in any way, erred in a matter involving jurisdiction. i am satisfied that that court has erred in that matter. this is a case where the court has assumed jurisdiction which it did not possess. it appears to me that the power to dismiss a suit or to strike out defence in cases of non-compliance with the orders of the court regarding.....
Judgment:
ORDER

Seth, J.

1. This is a plaintiff's application in revision under Section 115, Civil P.C., against an order of the City Munsif of Azamgarh penalising the plaintiff by dismissing his suit because he failed to carry out the order of the Court directing him to file certain documents within the period prescribed by that Court. On 28 November 1946, the plaintiff was ordered to file a mukhtarnama-am within ten days of that day. The mukhtarnama-am was not filed within the time specified by the Court and on 10th December 1946, the Court made the following order which is the subject-matter of this revision : 'Papers not filed by plaintiff. Suit dismissed for want of prosecution with costs to opposite party as it is 4-30 P.M.'

2. The explanation put forward by the plaintiff for the non-production of the document is that the information of this order was communicated to his pleader's clerk and the pleader's clerk failed to communicate this information to the plaintiff.

3. A preliminary objection has been taken to the hearing of this revision. It is contended that the order of the learned Munsif dated 10th December 1946 amounts to a decree and was, therefore, an order against which an appeal lay to the District Judge and against which a second appeal was maintainable in the High Court, 'Decree' has been defined in Section 2, Civil P.C., and the definition expressly states that a 'decree' shall not include any order of dismissal for default. There cannot be the least doubt that the order which is sought to be revised is-an order dismissing the suit for default of prosecution. It is, however, contended by the learned Counsel for the respondent that the word 'default' used in Section 2 (2) (b), Civil P.C., means a default of appearance only and does not include a default made in prosecuting the case. The word 'default' is not qualified by any adjective and I fail to see why any words should be imported in the section so as to confine its operation to dismissals for default in appearance only. It is a well recognized canon of construction that it is the duty of the Court to interpret a section as it exists without adding to it and without subtracting from it. It is only when a Court can be certain that the language employed by legislature does not represent its avowed intention, if interpreted literally and grammatically, that it can be justified in adding words to or taking out words from the language of the statute in interpreting it. Such is not the case with regard to the legislative provision which requires interpretation in the present case. It has been held per Venkataramana Rao J. in a Full Bench of the Madras High Court in Be N. Kayambu Pillai A.I.R. (28) 1941 Mad. 836, that the word default in Section 2 (2) (b), Civil P.C., need not be confined only to default of appearance, but may include other defaults as well. Similarly, it has been held by a Division Bench of the late Chief Court of Avadh in Jagdish Kumar Singh v. L. Harikishen Das A.I.R. (29) 1942 Oudh 365 that the default does not necessarily mean default of appearance, It also includes default of prosecution and that therefore, the order of dismissal for non-prosecution does not amount to a decree. It was further hold that even after a formal decree has been drawn the mere fact that a decree was prepared by the Court will not convert an order, which did not amount to a decree, into a decree. I am in perfect agreement with the two decisions quoted above.

4. Learned Counsel for the opposite parties has relied upon two decisions of this Court in support of his contention that an order of dismissal for want of prosecution does amount to a decree. The first one of these is the case of Syed Mohammadi Hussain v. Mt. Chandro and Ors : AIR1937All284 . In my opinion that case is distinguishable from the present case. What actually happened in that case was that when the case was called on for hearing the learned Counsel for the appellant appeared and pressed for adjournment. The application for adjournment was refused and then the learned pleader expressed his inability to argue the appeal which was dismissed for want of prosecution. It was not laid down in that case that the word 'default' should be confined only to default in appearance although the case proceeds upon that assumption, namely that 'default' and 'non-appearance' are synonymous.

5. It was never argued in that case that the word 'default' should not be confined to default in appearance only. As a matter of fact the learned Counsel appeared to have proceeded on the concession that the default meant only a default of appearance and argued the appeal on the point that the default in that case should be deemed to be a default in appearance. The case cannot be treated as an authority for a proposition that was never put forward for decision.

6. The other case relied upon is the case of (Sahu) Munna Lal v. Tara and Anr. : AIR1929All83 . The following observation occurs in that case:

The point has arisen in second appeal because the lower appellate Court rejected the appeal of the plaintiff on the ground that no appeal lay from a dismissal of a suit under Order 11, Rule 21. The order of the trial Court, however, was not one passed under that rule and the suit must be considered to have been dismissed on the merits and such a dismissal would be a decree and appealable.

7. The learned Judge has not given any reason for holding that if the order appealed against did not fall within the purview of Order 11, Rule 21, it must of necessity be deemed to be a decree. Both the decisions of this Court quoted by the learned Counsel are single Judge decisions, which though entitled to the greatest respect, are not so binding upon me as to compel me to follow them. With greatest respect to the learned Judges who have decided these two cases, I am unable to share their views. In my opinion the word 'default' is not confined to a default in appearance only and includes default of all kinds. This interpretation seems to be consonant with the central idea governing the definition of decree in Section 2 (2), Civil P.C., according to which a decree is a formal expression of an adjudication

which...conclusively determines the, rights of the parties with regard to all or any of the matters in controversy in the suit....

A dismissal for default of appearance does not determine any matters in controversy. Similarly a dismissal for default on any other ground also does not determine any matter in controversy. 'There seems to be no reason why Legislature should have intended that dismissal for one kind of default will not amount to a decree dismissal for another kind of default will amount to a decree.

8. I am, therefore, of the opinion that the order in revision does not amount to a decree and therefore, there is no substance in the preliminary objection raised by the learned Counsel for the opposite parties.

9. The next point for consideration is if it can be said that the Court below has, in any way, erred in a matter involving jurisdiction. I am satisfied that that Court has erred in that matter. This is a case where the Court has assumed jurisdiction which it did not possess. It appears to me that the power to dismiss a suit or to strike out defence in cases of non-compliance with the orders of the Court regarding interrogatories or for discovery or inspection of documents, are limited by Order 11, Rule 21, Civil P.C. of course in cases where time has been granted to a party for the purpose of doing certain things, provisions of Order 17, Rule 3 may be applicable.

10. Learned Counsel for the opposite party has not been able to point out any other provision of law under which a Court has jurisdiction to dismiss a suit or to strike out the defence for non-compliance with its orders in such matters. It has been held by a Division Bench of this Court in Lyallpur Sugar Mills Co., Ltd. and Anr. v. Ram Chandra Gur Sahai Cotton Mills Co. Ltd. A.I.R. (9) 1922 ALL. 235 that non-compliance with an order served on a defendant only for the production of documents under Rule 14 of Order 11, Civil P.C., does not warrant the striking out of the defence much less would it warrant a striking out of the defence or dismissal of a suit when the order for the production of the documents does not purport to have been made under Order 11, Rule 14, Civil P.C. The learned Munsif, therefore, had no jurisdiction to dismiss the suit on the ground that certain documents ordered by him to be filed had not been filed. In formally deciding the suit he would of course be entitled to raise such presumptions against the plaintiff on account of non-production of the document as are permissible under the law.

11. For the reasons stated above, I allow this application in revision, set aside the order of the Munsif, dated 10th December 1946, and order that the suit be restored to its original number on the list of pending cases and be proceeded with in accordance with law. In the' circumstances of the case I make no orders as to costs of this Court.


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