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Makundi Singh and anr. Vs. Parbhu Dayal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1926All169; 90Ind.Cas.1
AppellantMakundi Singh and anr.
RespondentParbhu Dayal and anr.
Cases ReferredDamu Diga v. Vakrya Nathu
Excerpt:
- - with regard to the second contention, we may say at once that it has clearly no force. clearly the word 'defendant' does not necessarily mean all the defendants; the language of the rules is certainly not very happy, but on the whole we have come to the conclusion that this is the best interpretation which could be put on the rules in this order......action, for recovery of the same arrears of rent. on the day fixed for the hearing of the previous suit tirbhuwan singh alone appeared before the court, but neither the plaintiffs nor the other two defendants were present. the court did not question tirbhuwan singh whether he admitted any part of the claim or, not nor did it take down his statement. it simply dismissed the suit for default, the plaintiffs made an attempt to have the dismissal set aside and the suit restored, but their application was infructuous. they then brought the present suit on the same cause of action against the same defendant. the courts below held that the present suit was barred by the provisions of order 9, r, 9, and the plaintiffs' only remedy was to have the previous dismissal set aside, and not to.....
Judgment:

1. This is an appeal by the defendants, arising out of a suit for arrears of rent. On a previous occasion the plaintiffs had instituted a suit against the defendants to the present suit, namely Tirbhuwan Singh and two others, on the same cause of action, for recovery of the same arrears of rent. On the day fixed for the hearing of the previous suit Tirbhuwan Singh alone appeared before the Court, but neither the plaintiffs nor the other two defendants were present. The Court did not question Tirbhuwan Singh whether he admitted any part of the claim or, not nor did it take down his statement. It simply dismissed the suit for default, The plaintiffs made an attempt to have the dismissal set aside and the suit restored, but their application was infructuous. They then brought the present suit on the same cause of action against the same defendant. The Courts below held that the present suit was barred by the provisions of Order 9, R, 9, and the plaintiffs' only remedy was to have the previous dismissal set aside, and not to institute a fresh suit. A learned Judge of this Court on second appeal, however, came to the conclusion that although the plaintiffs were not entitled to maintain a second suit against Tirbhuwan Singh, who had appeared on the former accasion, they were not debarred from maintaining a suit against the other defendants who also had been absent. He came to the conclusion that the dismissal should be deemed to have taken place under Order 9, Rule 3 so far as the other defendants were concerned and under Order 9, Rule 8 as far as Tirbhuwan Singh was concerned. He accordingly dismissed the suit against Tirbhuwan Singh but decreed the claim against the other two defendants. Inasmuch as all the defendants were jointly and severally liable for the arrears of rent the learned Judge passed a decree for the whole amount claimed against these other defendants. The defendants have come up in appeal under the Letters Patent; and the learned advocate for them has conceded that if the suit is maintainable against the defendants other than Tirbhuwan Singh, then there can be no doubt that they are liable for payment of the entire amount of the arrears.

2. His main contention has been that the whole claim as against all the defendants was barred by the provisions of Order 9, R, 9. His argument is twofold. In the first place his contention is that inasmuch as at least one of the defendants was present on the former occasion it cannot be said that neither party appeared within the meaning of Order 9, Rule 3, and that, therefore, the previous dismissal could not have been under that rule. He further contends that dismissal must be taken to have been under the first portion of Rule 8, namely, where the defendant appeared and the plaintiff did not appear. His second contention is that even if the suit was dismissed partly under Rule 3 and partly under Rule 8 the provisions of R, 9 still apply and the second suit is barred. With regard to the second contention, we may say at once that it has clearly no force. If it be assumed that the previous dismissal was partly under Rule 3 and partly under Rule 8, then Rule 9 can only apply to the dismissal so far as it was under Rule 8 and not so far as it was under R, 3. The words in Rule 9 are: 'Where a suit is wholly or partly dismissed under Rule 8' That expression obviously means a suit dismissed in part or in its entirely. It does not mean where a suit is dismissed wholly or partly under Rule 8 or partly under some other rule.' This Is the only grammatical meaning which can be given to the expression. The words 'wholly or partly' modify the verb 'is dismissed' and not the expression 'under Rule 8.' The partial dismissal under Rule 8 refers to the dismissal of the claim in part.

3. As to the first contention it must be conceded that if the language of Rule 3 were to be considered alone, there would be much to be said in favour of the appellant's contention, for in common parlance the expression 'neither party' would mean 'not any one of two or more parties.' This is the meaning assigned to the word 'neither' in Murray's Dictionary. It would, therefore, look bat first sight as if Rule 3 would be applicable only if no one whose name appears on the record as a party is present in Court. We, however, find that the words the plaintiff, the defendant' or party' in the Code in various rules refer to the plaintiff, the defendant or the party, whose case is being considered. For instance In Order 5, wherever the word 'defendant' appears it is obvious it means the particular defendant whose case is being considered. Similarly in Order 9, Rules 1 and 2, the word ''defendant' would mean the defendant with whom we are concerned and this would be the meaning attached to the word 'defendant' in Rule 6. Examining Rule 8 in detail, we find that it consists of two portions. Under its first portion when the defendant appears and the plaintiff does not appear the suit is to be dismissed. Clearly the word 'defendant' does not necessarily mean all the defendants; it may mean any one of the defendants or it may mean the particular defendant with whose case we are concerned. Under the second portion of the same rule, if a defendant appears and admits part of the claim, the suites to be decreed against him in part and is to be dismissed so far as it relates to the remainder. There is no express provision in the second portion of the rules under which the suit is to be dismissed in its entirety. It follows that unless the word 'defendant' is taken to mean the particular defendant with whose case we are concerned, there would be no ground for the dismissal of the whole suit when one of the several defendants appears and admits a part of the claim. The language of the rules is certainly not very happy, but on the whole we have come to the conclusion that this is the best interpretation which could be put on the rules in this order.

4. The result would be that the case of each defendant has to be considered separately. So far as the defendant who had appeared is concerned the suit must be deemed to have been dismissed against him under Rule 8, and the only remedy open to the plaintiffs as against him would be to have it sat aside under Rule 9; they cannot maintain a second suit; so far as the other defendants, who never appeared in Court are concerned, the case is one where neither party appeared, namely neither the plaintiffs nor those defendants. The provision of Rule 3 would, therefore, apply as between these two sets of parties.

5. The learned Judge of this Court has referred to the case of Bukharam v. Ramji AIR 1914 Nag. 20 decided by the Officiating Judicial, Commissioner of Nagpur, which on facts is very similar to the case before us, We may also refer to the case of Damu Diga v. Vakrya Nathu AIR 1920 Bom. 54, where Crump, J., remarked that it was difficult to follow the reasoning that for the purpose of Rule 8 it is sufficient if one or some of several, defendants appear. In his opinion it was necessary to take the case of each defendant on his own merits. In the case of several defendants the consequences of an order of dismissal need not necessarily be the same for all-the suit being dismissed against one set under Rule 3 and against others under Rule 8.

6. We accordingly uphold the decree of the learned Judge of this Court, and dismiss the appeal with costs including in this Court fees on the higher scale.


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