1. S.A. O. 435 of 1968 was dismissed in default on 2-1-1969. Neither party was represented in this Court on that day. The appellant has applied for setting aside the dismissal in default and for restoring the appeal to its original number and for its hearing on the merits. This application has been presented under Order 41, Rule 19, read with Section 151, Code of Civil Procedure. The averments made in this application are as under:-
'1. That the above-mentioned appeal was fixed for hearing in the Court of the Hon'ble Chid Justice on 2-1-1969. It was No. 10 in the list. This appeal was on the cause list since 5th December 1968.
2. That the appellant-petitioner had been attending the Court diligently throughout. Even on 2-1-1969, he attended the Court. At 12 A.M., the petitioner enquired from the Reader attached to the Hon'ble Chief Justice as to whether there was any possibility of his case being taken up and he was told that there were very many big cases above him and there was absolutely no possibility of his case being taken up on that date. The petitioner also made enquiries from the persons whose cases were fixed before him and he was told that their cases were big ones and would take a lot of time. It was under these circumstances that the petitioner left the Court on 2-1-1969.
3. That when the petitioner went to the Court the next day, he was told that his appeal had been dismissed in default along with others.
4. That the petitioner submits that he was prevented by sufficient cause from appearing when the appeal was called on for hearing. The absence of the petitioner at the crucial moment was not intentional. It was a bona fide mistake on his part. The petitioner had been attending the Court for many days and had attended the court even on the day on which his appeal was dismissed. X x x x'
This application is strenuously opposed by the respondent and paragraph 2 thereof is controverter in the following words:-
'2. Para 2 of the application is incorrect and denied. Facts stated by the appellant are an afterthought story. In fact, the appellant did not at all come and attend this Hon'ble Court on 2-1-1969. He (appellant) has proved to be very negligent and careless in conducting his case. Moreover, the appellant has not explained any thing about his counsel's absence. The cause explained by the appellant cannot be said to be a sufficient cause, thereforee, the application under reply merits dismissal with costs.'
In paragraph 4 of the reply, it has been averred that the proceedings inthis litigation are being prolonged in order to avoid payment of long outstanding arrears of rent and that the appellant has not yet complied with the order made by the Additional Rent Controller under Section 15(2) of the Delhi Rent Control Act.
2. Neither in the application for restoration nor in the arguments before me has it been clarified by the learned counsel for the appellant-petitioner whether it was the counsel or the petitioner-appellant himself who had asked the Reader of this Court about the possibility of the appeal being taken up on 2-1-1969. It has also not been specified as to which counsel or part, whose cases were listed above the case in hand in the daily cause llist for 2-1-1969, was approached and whether enquiries were made by the appellant himself or by the counsel. The Reader of this Court categorically denies the assertion and, according to him, this is not his practice. In this Court, the clients do not, as a matter of practice, approach the Reader on such points. In any event, at 12 noon on 2-1-1969, when the Court was in session, it was hardly possible for any one to cause disturbance in the Court by talking to the Reader on a matter like this, as suggested on behalf of the appellant. I am accordingly not impressed by the aforesaid aveerments in the application which cannot be accepted. This, however, does not mean that if true, they would have necessarily constituted they sufficient cause as contemplated by Order 41, Rule 19 of the Code, and I decline, on this occasion, to express any considered opinion on this question.
3. An attempt has been made by Shri Mahajan to show, during the course of his arguments, that some cases on the daily board on 2-1-1969 actually appeared again in the cause list on some subsequent days and this, according to the counse, establishes that the present case was dismissed in default without disposing of or dealing with on merits all the prior cases on the list on that day. I have not been able to appreciate or understan the precise submission. If it means that unless all the other cases on the daily cause list for the day in question are finally disposed of on the merits, no case can be legally dismissed in default, then this submission must be repelled. When a case on the daily cause list is reached in due course, the counsel or the party, as the case may be, is expected to be present so that its hearing proceeds in accordance with law. The fact that one or more of earlier cases are adjourned by the Court, does not by itself serve as a justification, in law for the absence of the counsel in the subsequent cases when they are called for hearing in due course. In the event of the counsel being absent, the Court is to exercise its judicial discretion on the facts and circumstances of each case whether to proceed with it or to wait for the counsel and if so, for how long. There is no hard and fast rule of general application and every case poses its own peculiar problem to be solved by the Court in its judicial discretion, making due allowances for normal human failings, but fully ensuring the proper functioning of the Court without undue interruptions and without unduly consuming the time of the Court in only waiting for the parties. This Court, I must point out, is always reluctant to dismiss cases in default too readily and this course is adopted only as a last resort.
The question whether a party was prevented from appearing by sufficient cause, has to be considered from a practical point of view by striking a just and proper balance between the legitimate claims of the litigating parties on the one side, in the background of the human imperfection, giving rise to the saying that, to err is human, and on the other side, the duty of the Court to see that all litigants before it are treated equally, and that the equality of the judicial process, including inter alia, the reasonably expeditious disposal of cases does not suffer. The Courts, it may be borne in mind, have to exercise their functions in a way which fulfills the need for consistency, for equality and for certainty. The judicial administration must be objective and strictly impartial dominated by sense of fairness to all, eliminating every influence proceeding from extra-judicial personal emotions and instinctive prejudices.
As observed earlier, the Courts should ordinarily be reluctant to dismiss cases in default too hastily and they would be well advised to wait for a reasonable time so as to expect the lawyers to come from the Bar room if their cases are suddenly called before expected. This, however, does not militiate against the normal rule that parties to the litigation and/or their counsel are expected to be present when the case is called for hearing so that the Court proceeds with the hearing without being made to wait for unreasonable length of time. This is a duty which the parties and the Courts owe to the judicial process in our Republic.
4. It has also been faintly suggested that as there were 30 cases on this Court's daily cause list for 2-1-1969, the petitioner appellant's counsel could reasonably assume tht more than about 10 cases could not have been reached and he could, thereforee, safely keep away without any reasonable risk of his case being disposed of in default. This suggestion is misconceived and such an impression seems to be without any rational basis. A case appearing in the daily cause list however long the list- serves as the notice to the parties and their counsel that they should be ready with the hearing, and unless the list itself so points out, it is wrong to assume that a case lower down on the daily list is, for that reason alone, not intended to be heard or so unlikely to be heard that the counsel engged to conduct the case need not be present in the Court premises. The argument of human approach is, on the facts and circumstances of this case, to be merely stated to be rejected. This, however, does not mean that applications for restoration of cases dismissed in default have to be treated with undue rigidity. They must, in my view, be dealt with according to law with a consciousness that consistently with the above approach, cases should, as far as possible, be disposed of on the merits. The question of sufficient cause thus demands a generous approach, and if there is no grave negligence and the counsel can be considered to have honestly intended, as shown by his conduct, with due sense of anxiety, to be present, on the hearing, but was prevented by a sufficient cause from doing so, the case should be restored. The mistake contributing to the absence should on this approach, be bona fide, reasonably leading to the default, and a counsel, to rely on such mistake, must be shown to have acted with due care and attention expected of a member of the Bar.
5. The grounds stated in the application would not in an ordinary case seem to me to attract Rule 19 of Order 41 of the Code because it is somewhat difficult to hold proved that the appellant was prevented by a sufficient cause from appearing when the appeal was called on for hearing on 2-1-1969. However, in this case, I find as observed earlier, that there was default even on the part of the respondent. The argument normally advanced against restoration on the ground of a valuable right having accrued to the respondent by reason of the dismissal in default, seems to me to lose some of its cogency in this case on account of the respondent's absence.
It appears to me that some members of the Bar who do not normally practice in this Court, have not realised the effect of the change brought about by the establishment of a separate High Court of Delhi with its very much increased strength of Judges. When some Judges of the Punjab High Court used to come here from Simla or from chandigarh to hear and dispose of cases from the Union territory of Delhi, the position of the Bar of the Circuit Bench was slightly different and all the members of the Circut Bar couldnot be progessionally kept busy solely in this Court throughout the year.
With the creation of a separate Court for Delhi, the position has greatly changed and the High Court Bar Association claims to have several hundred members, out of whom quite a large number of them can be kept profitably busy exclusively in this Court. This Bar, in its efficiency, sense of responsibility and status, is second to none in our country and it is time that those who practice at the Bar of this Court take suitable steps generally to remain present in the Court-premises during the Court-hours on days when they have professional work in this Court. If the counsel engaged in this Court are too busy to cope with the work single-handed, it is only fit and proper for them to have juniors to relieve them. There is no dearth of promising and deserving junior members of the Bar in this Court and their engagement would train the younger Bar and help the too-busy seniors are also the Court, in time of need. This course seems not only essential in the interest of the litigating public, but it would also facilitate the necessary assistance to the Court in the discharge of its judicial functions, and of course it is consistent with the position of responsibility, prestige and dignity of the Bar.
Hoping that the situation in this Court would soon change, I set aside the impugned dismissal in default as a special case and restore the appeal to its original number. But this instance is not to be cited as a precedent in future. I may, however, also suggest that those members of the Bar who do not, as a general rule, restrict their professional activities to the Bar of this Court and who come here occasionally to conduct cases would be well-advised, in the interests of their own clients, to have associated with them some member of the Bar of this Court who is ordinarily available during Court-hours so that they do not risk dismissal of their cases in their absence.
6. I have heard the parties on the merits of the appeal. The respondent in this Court had applied for ejectment of this tenant (appellant in this Court) on a two-fold ground; one of those grounds being non-payment of arrears of rent. Under Section 15(2) of the Delhi Rent Control Act, the Additional Rent Controller made an order that the tenant should pay arrears of rent at the rate of Rs. 120/- p.m. with effect from 1-1-1965 within one month from the date of his order which wa smade on 5-3-1968.
7. On appeal, the learned Rent Control Tribunal fixed the interim rent at the rate of Rs. 80/- p.m. and directed the tenant to deposit the arrears with effect from 1-1-1965 at the rate of Rs. 80/- p.m. within one month from the date of his order which was made on 23-9-1968.
8. On second appeal in this Court, all that the learned counsel for the appellant has been able to argue is that fixation of this interim rent is not justified on the facts and circumstances of this case. I am wholly unable to sustain this submission because under Section 39 of the Delhi Rent Control Act of 1958, second appeal is competent only if it involves a substantial question of law. Fixation of interim rent by the Tribunal, on the facts and circumstances of this case, can by no means be said to suffer from any infirmity involving a substantial question of law. The appellant's counsel has merely tried to persuade me to reassess the material on the record and to come to my own conclusion, but as just observed this is wholly beyond my power as a Court of second appeal under Section 39 of the Delhi Rent Control Act.
9. The appeal accordingly fails and is dismissed with costs.
10. Appeal dismissed.