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Sewaram Udaji Vs. Munna Moti and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 133 of 1956
Judge
Reported inAIR1959MP5
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 8 - Order 10, Rule 4 - Order 20, Rule 4
AppellantSewaram Udaji
RespondentMunna Moti and anr.
Appellant AdvocateS.M. Kutumbale, Adv.
Respondent AdvocateK.L. Goyal, Adv. for Opponent No. 1
DispositionPetition dismissed
Cases ReferredNandan Sahu v. Hari Shankar
Excerpt:
- - in the instant case, on 13-8-1952 the plaintiff failed to appear in person though directed by the court his pleader was present in the court. as the plaintiff was represented by a counsel duly instructed, the suit could not clearly be dismissed for default of the appearance of the plaintiff under order 9, rule 8, c. and indeed it was not under that provision that the plaintiff's suit was dismissed on 13-8-1952. the dismissal of the suit in the presence of the plaintiff's pleader duly instructed and in the absence of the plaintiff himself was clearly under order 10, rule 4, c. in my judgment, the order of dismissal made in this case was clearly under order 10, rule 4, c......after the filing of the written-statements by the defendants and on perusing them, the learned trial judge thought it necessary to examine the plaintiff before framing issues in the suit. the plaintiff was therefore, directed to be present in the court on 13-8-1952. on this date, the plaintiff remained absent. his counsel was, however, present. thereupon, the court dismissed the plaintiff's suit. on 26-8-1952, the plaintiff filed an application under order 9, rule 9, c.p.c. for restoration of the suit on the ground that as he was ill on 13-8-1952 he could not appear in the court.this application was rejected by the trial judge, who took the view that the dismissal of the plaintiff's suit was not under order 9, rule 8, c. p. c. the plaintiff then filed an appeal before the additional.....
Judgment:
ORDER

P.V. Dixit, J.

1. The facts of this revision petition are that the plaintiff-applicant instituted a suit in the Court of the Civil Judge, Second Class, Ujjain for the recovery of Rs. 185/- from the non-applicants. After the filing of the written-statements by the defendants and on perusing them, the learned trial Judge thought it necessary to examine the plaintiff before framing issues in the suit. The plaintiff was therefore, directed to be present in the Court on 13-8-1952. On this date, the plaintiff remained absent. His counsel was, however, present. Thereupon, the Court dismissed the plaintiff's suit. On 26-8-1952, the plaintiff filed an application under Order 9, Rule 9, C.P.C. for restoration of the suit on the ground that as he was ill on 13-8-1952 he could not appear in the Court.

This application was rejected by the trial Judge, who took the view that the dismissal of the plaintiff's suit was not under Order 9, Rule 8, C. P. C. The plaintiff then filed an appeal before the Additional District Judge of Ujjain. The learned Additional District Judge upheld the decision of the trial Court that the application filed by the plaintiff under Order 9, Rule 9 C. P. C. was not competent. The plaintiff has now come up in revision to this Court.

2. Mr. Kutumbale learned Counsel for the petitioner, argued that the dismissal of the plaintiff's suit on 13-8-1952 was because of his non-appearance and that, therefore, the application made by the plaintiff under Order 9, Rule 9, C.P.C. was in order and that the suit should have been restored on the plaintiff's satisfying the Court that there was sufficient cause for his non-appearance on 13-8-1952. It was said that the order of dismissal could not be regarded as one under Order 10, Rule 4, C. P. C., as the circumstances stated in that rule did not exist for the making of an order for the appearance of the plaintiff and it could not be said that the Court pronounced judgment against the plaintiff when it merely made an order dismissing the suit without stating any reasons. Reliance was placed by the learned counsel on Nandan Sahu v. Hari Shankar, AIR 1932 All 595 (A).

3. In my judgment, the Courts below were right in holding that the dismissal of the plaintiff's suit on 13-8-1952 was under Order 10, Rule 4, C.P.C. and consequently the plaintiff's suit could not be restored on an application under Order 9, Rule 9, C. P. C. The object of Order 10, Rule 4, C. P. C., is to get obscure points cleared up by obtaining information from the parties and to narrow down the points in controversy between the parties. It was for this purpose that the trial Judge made an order directing the plaintiff to appear so that he could be interrogated in person before the issues are framed. It cannot, therefore, be said that the trial Judge was not justified in making an order under Order 10, Rule 4 C.P.C. for the appearance of the plaintiff. Now under Order 10, Rule 4 when a party directed to appear in person fails to do so without lawful excuse, the Court has two courses open to it.

It can either pronounce judgment against that party or make such order in relation to the suit as it thinks fit. In the instant case, on 13-8-1952 the plaintiff failed to appear in person though directed by the Court His pleader was present in the Court. But he did not say that he had no instructions to appear on behalf of the plaintiff, or that the plaintiff was unable to appear on account of his illness. As the plaintiff was represented by a counsel duly instructed, the suit could not clearly be dismissed for default of the appearance of the plaintiff under Order 9, Rule 8, C.P.C. and indeed it was not under that provision that the plaintiff's suit was dismissed on 13-8-1952.

The dismissal of the suit in the presence of the plaintiff's pleader duly instructed and in the absence of the plaintiff himself was clearly under Order 10, Rule 4, C. P. C. If, as I think, the order of dismissal did not fall under Order 9, Rule 8, C.P.C., then it could be only under Order 10, Rule 4, C.P.C. The fact that the trial Judge while dismissing the suit did not give any reasons for his decision does not alter the fact that the dismissal of the suit was under Order 10, Rule 4, C.P.C. The expression 'pronounce judgment' as used in that rule means that in the case of plaintiff the Court may dismiss the suit and in the case of defendant may decree it. The decision dismissing or decreeing a suit may not fulfil the requirements of a judgment under Order 20, Rule 4, C.P.C.

But nonetheless, it would be a judgment dismissing or decreeing the suit. The decision in AIR 1932 All 595 (A) cited by the learned counsel for the petitioner, is distinguishable on the ground that in that case the plaintiff was absent and his counsel who was present in the Court stated that he had no instructions. Thus there was no appearance on behalf of the plaintiff and it was because of this non-appearance of the plaintiff that the order of dismissal of the suit was regarded as one made under Order 9, Rule 8, C.P.C. That decision is only an authority for the proposition that when an order has been made under Order 10, Rule 4, C.P.C., for the appearance of a party on a date of hearing and if on that date there is no appearance on his behalf in law, then the Court has the power of dismissing the suit for default under Order 9, Rule 8, C.P.C.

It does not lay down that whenever a suit is dismissed under Order 10, Rule 4, C.P.C., it can be restored under Order 9, Rule 9 C.P.C, or that to pronounce judgment against a party means to give a decision on merits. In my judgment, the order of dismissal made in this case was clearly under Order 10, Rule 4, C.P.C. That being so, an appeal lay against this order under Order 43, Rule 1 (e), C.P.C. The applicant should have appealed against the order of dismissal of the suit instead of presenting a petition under Order 9, Rule 9, C.P.C., for the restoration of the suit.

4. For these reasons, this petition is dismissed with costs.


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