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Nawal Kishore Vs. Azim Uddin - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All210
AppellantNawal Kishore
RespondentAzim Uddin
Cases ReferredMan Mohan Das v. Krishna Kant
Excerpt:
.....of the case. the plaintiff failed to produce his evidence and the court was entitled to decide the suit on the merits. it is clear that although the suit must be deemed to have been dismissed on the merits, yet the evidence on behalf of the plaintiff was not tendered in the court below and the reason of such failure was the refusal by that court to adjourn the hearing of the case on 10th october 1933. as stated before, the plaintiff's counsel urged that the plaintiff was not present on account of illness and his witness was not present on account of urgent business. although the application was not supported by an affidavit, yet an indication of the fact that the witness would not be able to attend on the next day was given to the court on 9th october 1933 and the court might well have..........that full costs were allowed to the defendant, though as a matter of practice, ordinarily, where a suit is dismissed in default, only half costs are allowed to the opposite party. a third indication might be found in the fact that the court says that a very serious allegation was contained in the defendant's application (18-c), dated 10th october 1933. if the dismissal of the suit be not deemed to be on the merits, it is, difficult to refer it to any other provision in the civil procedure code. the view that i have taken is in accordance with the view taken by this court in man mohan das v. krishna kant 1933 all. 41.7. i have therefore come to the conclusion that the plaintiff's suit was dismissed by the small cause court judge on the merits and the only remedy available to the plaintiff.....
Judgment:
ORDER

Bajpai, J.

1. The plaintiff brought, a suit on the basis of a bond in the Court of the Judge Small Causes at Khurja on 4th July 1933. The Court fixed 25th August 1933, for the hearing of the case. The parties appeared on that date; the defendant filed his written statement and the Court was of the opinion that on the pleas taken by the defendant, the case needed a close inquiry and therefore the case was adjourned for 13th September 1933. It appears that on 4th or 5th September 1933 the plaintiff applied that the date might be changed and the Court on 5th September 1933, ordered that the case should come up for hearing on 9th October 1933. It is clear that the date of hearing was changed from 13th September to 9th October 1933, at the instance of the plaintiff and time was granted to him to produce his evidence on the altered date. The Court could not put the case on 9th October 1933, on account of contested cases and it adjourned the case for the succeeding date. On that date the plaintiff was not present, but his counsel applied for adjournment on the ground of the plaintiff's illness and on the additional ground that one of the witnesses for the plaintiff had to attend the 13th day ceremony of a relation fixed for the 10th October, and therefore could not be present. The Court did not see its way to adjourn the case and observed as follows:

Yesterday when the case was postponed for today, it was not said that the plaintiff was ill. It was said for a witness that he was to attend some ceremony and I undertook to release him to day at 10-30 a.m. after recording his evidence. As such the ease called up in the morning at 10-15 a.m. but for sometime the plaintiff did not turn up with his vakil.... I do not believe in such tactics and regard the application as false. It is rejected.

2. The Court then took up the case and after recording the statement of plaintiffs counsel which was to the effect that he had no instructions in the case beyond moving the application for adjournment, dismissed the plaintiff's suit allowing full costs to the defendant. The two pleas taken by the defendant were that the bond was not a genuine bond and that the entire proceedings on behalf of the plaintiff from the filing of the plaint were taken by one Phool Chand and not by the nominal plaintiff. The Court took down the signature of Phool Chand on a paper and then, as I said before, the Court proceeded to write judgment in the case dismissing the plaintiff's suit. In revision it is contended before me that:

the suit should not have been dismissed and that there were sufficient grounds for the applicant's non appearance on 10th October 1933.

3. Before I proceed to discuss the two pleas taken by the defendant, it is necessary to find out the circumstances under which the plaintiff's suit was dismissed, and to decide whether it was dismissed on the merits or in default. It is contended by learned Counsel for the applicant that the suit was dismissed on the merits, whereas learned Counsel for the defendant says that the suit was dismissed in default and the proper remedy for the plaintiff was to apply for restoration. The plaintiff was present on 25th August 1933, the date fixed for the first final hearing in the case and the provisions of Order 9 by themselves would not apply; those provisions by themselves do not apply to a case in which the plaintiff or defendant has already appeared, but has failed to appear to are adjourned hearing of the case. For such a case the procedure is laid down in Order 17 which deals with adjournments. This was the view taken by the Calcutta High Court in Enatulla Basunia v. Jiban Mohan Roy 1914 Cal. 360, and I am in agreement with this view. I have now got to see whether any rule of Order 17 applies to the facts of the present case. Order 17, Rule 1 provides that the Court may grant time to the parties or to any of them, if sufficient cause is shown and it also provides that the Court may from time to time adjourn the hearing on the suit. It follows from this that Order 17, Rule 1 applies both to adjournments made at the instance of a party and to adjournments by the Court of its own motion. In Order 17, Rule 2 certain additions have been made by this Court. The main provision is to the effect that:

if 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 9 or make such other order as it thinks fit.

4. The explanation added by this Court is that:

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 only for the purpose of making an application.

5. In the present case, the plaintiff cannot be deemed to have failed to appear because he was represented in Court by a pleader, though engaged only for the purpose of making the application for the adjournment of the case. The dismissal cannot therefore be said to be under Order 17, Rule 2. The question is if Order 17, Rule 3 applies. That rule with its additions made by this Court says that:

Where any party to a suit to whom time has been granted fails, without reasonable excuse, to produce his evidence...the Court may, whether such party is present or not, proceed to decide the suit on the merits.

6. This rule gives an option to the Court to decide the suit on the merits. In the present case time was undoubtedly granted to the plaintiff to produce his evidence on 19th October 1933, and it is reasonable to say that the adjourned date of 10th October 1933 should also be considered as the date for which time was granted to the plaintiff to produce his evidence. The plaintiff failed to produce his evidence and the Court was entitled to decide the suit on the merits. No evidence having been produced by the plaintiff, the Court had no option, but to dismiss the suit, if it wanted to decide it on the merits. In this rule there is no provision that a suit can be decided on the merits only if the evidence or a substantial portion of the evidence of the party failing to appear has been recorded such as there is by virtue of the addition made by this Court in Rule 2. One indication of the fact that the suit was not dismissed in default appears from the fact that the Court does not say in so many words that it was dismissed in default and this is usual in the majority of cases when a Court dismisses a suit in default; another indication is in the fact that full costs were allowed to the defendant, though as a matter of practice, ordinarily, where a suit is dismissed in default, only half costs are allowed to the opposite party. A third indication might be found in the fact that the Court says that a very serious allegation was contained in the defendant's application (18-C), dated 10th October 1933. If the dismissal of the suit be not deemed to be on the merits, it is, difficult to refer it to any other provision in the Civil Procedure Code. The view that I have taken is in accordance with the view taken by this Court in Man Mohan Das v. Krishna Kant 1933 All. 41.

7. I have therefore come to the conclusion that the plaintiff's suit was dismissed by the Small Cause Court Judge on the merits and the only remedy available to the plaintiff was to apply in revision to this Court and not to the Court below for restoration. I have now got to see whether there are any merits in this revision. It is clear that although the suit must be deemed to have been dismissed on the merits, yet the evidence on behalf of the plaintiff was not tendered in the Court below and the reason of such failure was the refusal by that Court to adjourn the hearing of the case on 10th October 1933. As stated before, the plaintiff's counsel urged that the plaintiff was not present on account of illness and his witness was not present on account of urgent business. Although the application was not supported by an affidavit, yet an indication of the fact that the witness would not be able to attend on the next day was given to the Court on 9th October 1933 and the Court might well have seen its way to adjourn the case. I am all the more inclined to take this view on the question of adjournment because of the serious allegations that were made by the defendant. If they are correct, then the plaintiff has been guilty not only of producing a false document, but the entire proceedings in this case from start to finish have been taken not by the nominal plaintiff, but by somebody else, namely, Phool Chand. I think these allegations ought to be enquired into by the Court below. The result is that I allow this application, set aside the decree of the Court below and send back the case to the Small Cause Court Judge with directions to re-admit the suit to its original number and dispose it according to law after giving an opportunity to the parties to produce their evidence.


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