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The Lakshmi Commercial Bank Ltd. Vs. Hans Raj Sayal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1397 of 1980
Judge
Reported inAIR1981P& H228
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rules 4, 5 and 8
AppellantThe Lakshmi Commercial Bank Ltd.
RespondentHans Raj Sayal and ors.
Cases ReferredAsgher Hussain v. Vicarunnisa Begum
Excerpt:
.....finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge..........by the petitioner-bank under order ix, rule 4, code of civil procedure, for restoration of its suit dismissed in default on july 24, 1978. t was stated in the said application that the counsel for the petitioner was busy in the court of the senior subordinate judge on the relevant date and when he came to attend the present case at about 3 p. m. he came to know that the suit had been dismissed in default. the application was resisted by the respondents and the trial court framed the necessary issue in the matter as to whether there was sufficient ground for restoration of the suit or not. the trial court considered the evidence of one witness g. s. bahsker (a. w. 1) manager of the petitioner-bank who had deposed that when the case was called, he went to call his counsel who was busy.....
Judgment:
ORDER

1. The Revision Petition in directed against the order passed by the Additional Senior subordinate judge, Amritsar, on November 8, 1979. The order as passed on an application having been preferred by the petitioner-Bank under Order IX, Rule 4, Code of Civil Procedure, for restoration of its suit dismissed in default on July 24, 1978. t was stated in the said application that the counsel for the petitioner was busy in the court of the Senior Subordinate Judge on the relevant date and when he came to attend the present case at about 3 p. m. he came to know that the suit had been dismissed in default. The application was resisted by the respondents and the trial court framed the necessary issue in the matter as to whether there was sufficient ground for restoration of the suit or not. The trial court considered the evidence of one witness G. S. Bahsker (A. W. 1) Manager of the petitioner-Bank who had deposed that when the case was called, he went to call his counsel who was busy in the court of Senior Subordinate Judge however when he returned to the court at 3 p. m. he found that the case had already been dismissed in default. The trial court did not believe this witness and also held that at the plaintiff had not availed of the opportunities given to them for producing their evidence the case was dismissed when no one appeared for the plaintiff on the date of the hearing.

2. A perusal of the trial Court's record indicates that the suit was dismissed in default on July 24, 1978 at 2-30 p. m. The question which falls for determination is as to whether the trial court was justified in acting in this manner. So far as the Subordinate Courts under the control of this court under the control of this court are concerned certain specific guidelines have been issued to them as provided in the High court rules and orders Rules 4, 5, and 6 part J. Chapter I, Volume I thereof, are to the following effect :-

'4. Order IX, Rule 8, lays down that if the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order dismissing the suit, unless the claim is admitted wholly or in part, in which case the claim shall be decreed only to the extent to which it is admitted.

5. The above rules must be worked in a reasonable manner, otherwise, they will result in a number of applications for setting aside orders passed in the absence of one of both parties, a litigant may have gone away for a few minutes to call his pleader or to refresh himself. It is impossible to expect a man to remain in constant attendance for the whole of the time during which the Court is situating. (A convenient method is to lay aside a case when it is found that both the parties are not present and to call it a second time later on in the day, when all other cases have been called and those in which parties are present have been disposed of and though it. I not desirable to lay down any hard and fast rule as applicable to all cases, the above course should ordinarily be followed. Occasionally, when it is brought to the notice of the court that both the parties to a case which has been held over are in attendance, it may be found convenient to call up the case before all other cases have been disposed of).

6. Some judicial officers are inclined to dismiss cases in default hastily in order to show an increased outturn. This tendency must be strongly deprecated No case should be dismissed without giving a party reasonable opportunity to appear as indicated above and if this is done the number of successful application for setting aside dismissals in default will be appreciably reduced. The same remarks apply to proceedings taken ex parte orders. When a suit or application is dismissed in default, the exact time of dismissal should be noted in the order by the Presiding officer in his own hand.'

It appears that the learned Additional Senior Subordinate Judge did not attract his attention to the above rules of procedure. Particularly Rule 5 and proceeded to dismiss the suit for default at 2-30 p.m. primarily for the reason that the petitioner had not summoned or produced his evidence on that day. It has been stated in rule 5 ibid that in case the Pleader of a litigant is not available and is sent for the court should not straight way proceed to dismiss the suit for default but should call the case again in the later part of the day there is nothing to show if this has been done. The learned Additional Senior Subordinate Judge should have also taken note of the fact that the suit was for partition of the petitioners share. I immovable property of substantial value comprising of haveli, well, shope, open spaces etc. The learned subordinate judge sought assistance from Chuni Lal v. Gandu Mal AIR 1927 Lah 791(1) and Sita Bai Gangrade v. Vidhya Wati Gangrade, AIR 1972 Madh Pra 198, to hold that the absence of the counsel who was busy in another court, was not to be treated as sufficient cause for restoration of the suit. However, the legal position is to the contrary, as laid down by this court in some recent authorities like Avtar Singh v. Bhajan Singh, (1978) 80 Pun LR 103 and Smt. Chander Kanta v. Sulekh Chand Sumer Chand, (1978) 80 Pun LR 423, wherein it has been held that the rules of procedure are the handmaids of justice meant to advance its cause and not to deny the parties decision on merits. It was further held that restoration of a case dismissed for default should not ordinarily be denied unless the party is found guilty of contumacious negligence or wilful default. Asgher Hussain v. Vicarunnisa Begum, AIR 1961 Andh Pra 128 is another authority directly on the point that if the counsel is engaged in another court and the suit is dismissed in his absence, it would be a sufficient cause to restore the same without the necessity of the lawyers to file an affidavit in this behalf.

3. Even on merits, the very fact that the suit was dismissed at 2-30 p. m. and the application for restoration was moved by the counsel within half an hour i. e. at 3 p. m. on the same day, shows that it is not a case of contumacious religence or wilful default. In this view of the matter the orders of the trial court dismissing the suit for same are liable to be set aside and it is ordered accordingly.

4. The suit shall be restored at its original number and the trial court shall proceed to dispose of the same on merits in accordance with law.

5. The parties,through their counsel have been directed to appear before the trial court on March 25, 1981, for proceeding further in the matter.

6. There shall be no order as to costs, of the present Revision Petition.

7. Revision allowed.


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