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T. Muthaya Pillayan Vs. Commr., Madras Hindu Religious and Charitable Endowments, Madras - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 159 of 1953
Judge
Reported inAIR1955Mad70
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rules 9 and 13 - Order 17, Rules 2 and 3
AppellantT. Muthaya Pillayan
RespondentCommr., Madras Hindu Religious and Charitable Endowments, Madras
Appellant AdvocateT.R. Srinivasan and ;T. Ramalingam, Advs.
Respondent AdvocateT. Venkatadri, Adv. for ;Govt. Pleader
Cases ReferredGovindarajulu Naidu v. Imperial Bank of India
Excerpt:
- - imperial bank of india, vellore' air 1935 mad 210 (c), came to the conclusion that the provision of law applicable to case like this is order 7, rule 3, civil p. venkatadri for therespondent, the commissioner, the hindu religious and charitable endowments, contended thatno sufficient reasons have been shown by theplaintiff for his non-appearance on 24-1-1952, weare not satisfied that his contention is correct. the phrase 'sufficient cause' which occurs in order 9, rule 9 or rule 13is elastic enough to include situations like thepresent where the plaintiff says that on accountof the death of his grand-child and his illnesshe could not attend the court in time......24-1-1952. on that date the plaintiff did not appear and his counsel reported no instructions. the learned judge dismissed the suit for default. an application was filed by the plaintiff to set aside the dismissal for default, under order 9, rule 9, civil p. c., and that application which had been dismissed on the ground that it is not maintainable, has given rise to this appeal. 2. the learned judge after quoting from the decisions in -- 'pichamma v. sriramulu', air 1918 mad 143 (a); -- 'arunachallam chettiar v. sivalingam chettiar : air1927mad799 and -- 'govindarajulu naidu v. imperial bank of india, vellore' air 1935 mad 210 (c), came to the conclusion that the provision of law applicable to case like this is order 7, rule 3, civil p. c. and not order 17, rule 2 or order 9, rule 9,.....
Judgment:

Govinda Menon, J.

1. This is an appeal against an order refusing to set aside the dismissal of a suit for default. The suit which had been filed in the District Court of Tirunelveli had been transferred to the Sub Court and numbered as O. S. No. 131 of 1951 on 5-10-1951. Naturally, the first hearing could be not far off. Therefore it was posted for trial to 10-1-1952. On that date, the plaintiff filed the documents, Exs. A-1 and A-2 and the case was still further adjourned for hearing to 24-1-1952. On that date the plaintiff did not appear and his counsel reported no instructions. The learned Judge dismissed the suit for default. An application was filed by the plaintiff to set aside the dismissal for default, under Order 9, Rule 9, Civil P. C., and that application which had been dismissed on the ground that it is not maintainable, has given rise to this appeal.

2. The learned Judge after quoting from the decisions in -- 'Pichamma v. Sriramulu', AIR 1918 Mad 143 (A); -- 'Arunachallam Chettiar v. Sivalingam Chettiar : AIR1927Mad799 and -- 'Govindarajulu Naidu v. Imperial Bank of India, Vellore' AIR 1935 Mad 210 (C), came to the conclusion that the provision of law applicable to case like this is Order 7, Rule 3, Civil P. C. and not Order 17, Rule 2 or Order 9, Rule 9, Civil P. C. We do not agree with the learned Judge. The mere fact that on 10-1-1952 the plaintiff filed two documents would not bring the case within Order 17, Rule 3, Civil P. C., in that the party has been granted time to produce evidence or to cause the attendance of witnesses. What really happened was that without any proceedings being gone through, the suit was automatically adjourned though two documents were filed and no witnesses had been examined. In our opinion the proper provision applicable is Order 17, Rule 2, Civil P. C., which relates to the hearing of the suit being adjourned to a particular date and on that date the plaintiff failing to appear. If that is the contingency, then the proper provision of law Is that applicable under Order 9 and that is what the plaintiff has done in this case. In our opinion the decisions on which the learned Judge relies have no relevancy to the present case. If Order 17, Rule 2, Civil P. C., applies, then it is open to the Court to set aside the dismissal for default forsufficient cause. Though Mr. Venkatadri for therespondent, the Commissioner, the Hindu Religious and Charitable Endowments, contended thatno sufficient reasons have been shown by theplaintiff for his non-appearance on 24-1-1952, weare not satisfied that his contention is correct.The learned Judge, in fact, has not come to theconclusion on the materials that the plaintiff didnot have sufficient reasons. The phrase 'sufficient cause' which occurs in Order 9, Rule 9 or Rule 13is elastic enough to include situations like thepresent where the plaintiff says that on accountof the death of his grand-child and his illnesshe could not attend the Court in time. Wetherefore feel that the order of dismissal fordefault. should be set aside and that order ishereby set aside. But the plaintiff should pay thecosts of the respondent the Commissioner, theHindu Religious and Charitable Endowments,Madras, both in this Court and in the Courtbelow and bear his own.


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