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K. Seethamma Vs. K. Kameswar Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 108 of 1964
Judge
Reported inAIR1967Ori152
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 9, Rule 9 - Order 17, Rule 2
AppellantK. Seethamma
RespondentK. Kameswar Rao and ors.
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateY.S.N. Murthy and ;A.K. Padhi, Advs.
DispositionApplication allowed
Cases ReferredSeeley v. Evans
Excerpt:
.....on the part of the court to exercise its jurisdiction no doubt there are some other circumstances also which have been brought to my notice on behalf of the opposite parties to establish that this was not the only occasion when the plaintiff was not prepared with the case, but on other previous occasions as well the same was the attitude which had been adopted by her. but this court has uniformly held that in the matter of negligence of a party on the day when the suit was dismissed for default, the negligence, even if any, exhibited by him on the previous occasions should not be taken into consideration and what has to be decided is whether in doing what he did on the day of dismissal for default he was at all negligent or whether he was in a position to explain to the court as to..........of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party. i do not feel much pressed by the reference made to the case in which evidence may have been taken and which has been partially argued.'the same view was also taken by the patna high court in a.i.r. 1918 pat 351. therein by a division bench of that high court it was observed that-'a party may appear in two ways, either by person or by pleader. if he is not appearing in person, the mere fact that he is standing in court does not amount to an appearance within the real meaning of the word.'in this view of the law therefore the mere fact that the plaintiff was present in court at the time when the suit was dismissed for default on 31-8-1961 cannot be.....
Judgment:
ORDER

K. Ahmad, C.J.

1. This is an application in revision filed by the plaintiff against the order D/- 18-12-1963 passed on appeal confirming the order D/ 30-4-1962 passed bv the Trial Court whereby it dismissed the suit under Order 17, Rule 2 of the Code of Civil Procedue. It appears that the suit was pending for some time and finally on 8-8-1961 it was posted for hearing to 31-8-1961. On that date the plaintiff originally did not turn up nor there was any petition filed on her behalf for adjournment. In fact not even hazira was filed by the learned lawyer appearing for her. On the contrary, the learned lawyer informed theCourt that be had no instruction. Subsequently the plaintiff after some time came to Court. But though she was present she did not even then take any step when the case was taken up for hearing with the result that it was ultimately dismissed for default. Thereafter on 30-9-1961 there was an application filed under Order 9, Rule 9 of the Code of Civil Procedure for restoration of the suit. This was disposed of by the Trial Court by the order dated 30-4-1962 whereby it held that 'There was no sufficient ground for setting aside the dismissal order'. Accordingly it dismissed the application. Against that order there was an appeal taken by the plaintiff. In appeal the judgment of the Trial Court was confirmed by the order dated 18-12-1963. 11 is against this order that the plaintiff has now filed the present petition under Section 115 of the Code of Civil Procedure.

2. It appears that the dominant fact which has influenced the two courts below in dismissing the petition filed by the petitioner under Order 9, Rule 9. C.P.C. is the fact that she was present at the time when the case was taken up for hearing, but despite that she neither filed any petition for adjournment nor brought a lawyer to take necessary steps in the case. The reason given by the petitioner for coming late to the Court on 31-8-1961 was that due to madness of her son she could not catch Berhampur Bus in time with the result that she arrived there late and as by that time her lawyer had already put in a memo informing the Court that he had no instruction in the case, she was taken by surprise and was not in a position to take any other step in the matter. Therefore by implication it is not denied that she was present in Court at the time when the case was taken up for hearing.

But the question that arises for consideration is whether mere physical presence of a litigant is presented for the purpose of prosecuting the suit wherein he is interested. This point has been elaborately dealt with by some of the decisions of different High Courts in India like those in Mariannissa v. Ramkalpa Gorain (1907) I.L.R. 34 Cal. 235, Satish Chandra v. Ahara Prasad (1907) I.L.R. 34 Cal 403 (FB), Lalji Sahu v. Lachmi Narain, A.I.R. 1918 Pat 351, Kaliappa v. Kumarswami, A.I.R. 1926 Mad 971 and Gopala Row v. Maria Susaya Pillai (1907) I.L.R 30 Mad 274. In all these decisions it has been uniformly held that the word 'appearance' as used in Order 17. Rule 2. C.P.C., does not mean physical appearance or physical presence of the party concerned, but appearance for the purpose of prosecuting the case or suit pending in the Court. In other words, the appearance is for the purpose of taking part in the proceeding and in that it includes her preparedness to cite evidence and to produce documents or to take any other step for the disposal of the case as may foe considered necessary. Therefore, if a party to a suit for some reason or other is precluded from being ready to take part in the prosecution of the suit, but somehow manages tocome to court with a view that the case should be got adjourned for some other day, his appearance in such a circumstance will not amount to an appearance as contemplated by Order 17. Rule 2 C.P.C.

I may here refer to the view of the Full Bench of the Calcutta High Court in (l907) ILR 34 Cal 403. In that case it was unanimously held by all the Judges who constituted the Bench that-

'The term 'appearance' is nowhere defined in the Code, and, as pointed out by Benson J. in Seeley v. Evans, (1838-19 Wendell 459) has several significations the word must always, be understood in reference to the particular subject matter to which it relates, and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case It seems to me that having regard to the scope of Section 556 of the C.P.C. and the object to be gained by the attendance or appearance of the appellant on the day fixed for the hearing of the appeal, the mere appearance of counsel to make an application for adjournment ought not to be treated as appearance so as to oust the jurisdiction under Section 558 of the C.P.C., if proper cause is shown. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party. I do not feel much pressed by the reference made to the case in which evidence may have been taken and which has been partially argued.'

The same view was also taken by the Patna High Court in A.I.R. 1918 Pat 351. Therein by a Division Bench of that High Court it was observed that-

'A party may appear in two ways, either by person or by pleader. If he is not appearing in person, the mere fact that he is standing in court does not amount to an appearance within the real meaning of the word.'

In this view of the law therefore the mere fact that the plaintiff was present in court at the time when the suit was dismissed for default on 31-8-1961 cannot be on the facts of this case any valid ground for holding that she was present in Court and that in spite of that she defaulted in taking part in the proceeding or was guilty of boycotting the Court. It is true that she could have thereafter or even then and there filed an application for adjournment, but in the circumstances of the case as here where the plaintiff was a woman and the lawyer had already filed a memo to the effect that he had no instruction in the matter it was difficult for her to collect materials in that particular circumstance and to think or taking any other reasonable step. Each case has to be judged in the light of its own facts Therefore, in my opinion, the courts below were wrong in laying too much stress on the circumstance that the plaintiff was physically present in court.

Then there are two other reasons also given for not allowing the appeal by the lower appellate Court. The first is that even at the time of appearing the Court gave her indulgence to get ready within half an hour, but despite that she failed to take any step in the case. This again I think, is more or less involved with the question that she had not come prepared that day to take part in the proceeding and if that was so, it is quite understandable that perhaps none of her witnesses was present and it is also quite understandable that she might not have brought all the papers relevant for the case. Therefore this ground also is mixed up with the fact that though she was physically present in court but had not come prepared for hearing. The other ground which has weighed with the lower appellate court is that though the suit was dismissed for default, but on that day there was no step taken by the plaintiff either for adjournment or for restoration In referring to this ground again I think the Court below was practically proceeding on the assumption that the plaintiff had come ready for the case. But if the explanation given by her is correct that she had come on that day with a view to get time and not with a view to take part in the proceeding, then I think it was not possible for her to take any other reasonable step when the case was being dismissed for default, specially when the lawyer appearing for her had already gone out of the court and had filed a memo that he had no instruction in the case.

For these reasons, I think the dismissal of the petition filed by the plaintiff under Order 9, Rule 9 C.P.C., on the substantial ground that she was physically present in court and that she did not take part in the proceeding amounts to practically refusal on the part of the Court to exercise its jurisdiction No doubt there are some other circumstances also which have been brought to my notice on behalf of the opposite parties to establish that this was not the only occasion when the plaintiff was not prepared with the case, but on other previous occasions as well the same Was the attitude which had been adopted by her. But this Court has uniformly held that in the matter of negligence of a party on the day when the suit was dismissed for default, the negligence, even if any, exhibited by him on the previous occasions should not be taken into consideration and what has to be decided is whether in doing what he did on the day of dismissal for default he was at all negligent or whether he was in a position to explain to the Court as to why he did not take any step in the matter I therefore think that the lower appellate Court in dismissing the application under Order 9 Rule 9 C P C filed by the plaintiff not only took a wrong view of the law on the subject as already stated above, but also for that reason failed to exercise the jurisdiction vested in it. Accordingly the application is allowed The order given by the lower appellate Court is set aside and the case is sent back to the lower appellate court for a fresh hearing in the light of law as stated above But in the circumstances of the case I think the petitioner should pay a sum of Rs. 64 (sixtyfour) by way of costs to the opposite partieswithin a period of 2 weeks from today. In caseof default the application shall stand dismissed.


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