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Muniswami Goudu Vs. Junjadu Alias Muni Ellugudu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in35Ind.Cas.65
AppellantMuniswami Goudu
RespondentJunjadu Alias Muni Ellugudu
Cases ReferredArmour v. Bate
Excerpt:
.....found that the defendant was there. 546 a determination by a very strong court on order xxxvi, rule 32, of the rules of the supreme court which corresponds to the rule we, are considering. the plaint was filed on the 18th june the hearing and the whole determination of the matter took place on the 30th and i think it may very well be that the plaintiff and his legal advisers had no time to make themselves ready with their case i always take the view, whenever i possibly can, that a plaintiff ought not to be shut out from the judgment seat where costs will afford a sufficient protection to the defendant as against the plaintiff who is guilty of some technical error or mistake. as regards the disallowed portion i fail to see how that is not an adjudication denying the right of the..........was no admission of the right sued for. impliedly this seems to amount to a pronouncement that the claim to be admitted must be the claim as laid down in the plaint and for the amount stated therein, and not simply of the cause of action. on the question as to whether the appellate court should not have given the plaintiff an opportunity of proving his case, it seems to me that there has been speedy justice with a vengeance in this case. within thirteen days of the filing of the plaint, every stage in the suit had been rushed through; and we find that on the thirteenth day the plaintiff was not allowed an opportunity of proving his case and his claim was dismissed. in these circumstances i think this is a case in which an opportunity should be given to the plaintiff to prove his claim.6......
Judgment:

Coutts Trotter, J.

1. In this case the plaintiff failed to appear in the District Munsif's Court on the day which had been fixed for the hearing of the suit, but the District Mansif found that the defendant was there. The defendant had, by his pleadings admitted *he execution of the bond on which the suit was brought and had admitted receipt of the principal sum made payable under it, but pleaded that by an arrangement he was allowed to work for a long period of years without wages under the plaintiff and in that way he had extinguished the, whole debt except Rs. 10. In those circumstances the District Munsif acted under Order IX, Rule 8, of the Code of Civil Procedure. He gave a determination to the effect that the plaintiff should have a decree for Rs. 10 and that his suit as to the remainder should stand dismissed.

2. It is contended before us for the respondent that the latter part of the determination was not a decree, although the former portion of it admittedly was, but was an order and nothing more, and that accordingly Rule 9 of Order IX had to be availed of, where a special procedure is enacted giving a special remedy of setting aside orders dismissing suits for default of the plaintiff's appearance. That looks plausible, because Rule 9 says: 'Where a suit is wholly or partly dismissed...the plaintiff shall be precluded from bringing a fresh suit.... But he may apply for an order to set the dismissal aside', and so forth. That undoubtedly leads to the conclusion that the dismissal under Order IX, Rule 8, is to be treated as a dismissal for default whether it be of the whole, suit or part of it, and in neither case is it to be regarded as a decree. Reference is, made to the definition in Section 2 of a decree which expressly excludes any order dismissing a suit for default, As I say, that is a tempting view of the matter, but I cannot bring myself to think that the same adjudication, the same document, can be, as to a part, a decree and as to another part of it, something else. It appears to me that so soon as you have a decretal portion of a pronouncement of a Court of Justice, the whole of the pronouncement is a decree and must be so treated. I, therefore, treat it as a decree within the meaning of the Code. That being so, there is a right of appeal.

3. Another point that arose was this. It was argued that the earlier portion of the word in Rule 8 'unless the defendant admits, the claim, or part thereof,' applied here and, this was a case of admitting a. claim, reserving a right which was, either to be considered as a set-off or a counterclaim, and was not a case within the Rule of admitting a part of a claim, because it was said the defendant admitted the whole claim subject to his right to recoup himself in some other form. I do not think that is correct. I think that the words 'admits the claim or part thereof' apply to a case where, on examining the plaint and the defendant's admissions in the written statement, it can be considered that, he, there and then, agreed to pay the money or to submit to the relief claimed in the plaint. I am confirmed in that opinion by the decision in Armour, v. Bate (1891) 2 Q.B. 233 : 60 L.J.Q.B. 433 : 65 L.T. 137 : 39 W.R. 546 a determination by a very strong Court on Order XXXVI, Rule 32, of the Rules of the Supreme Court which corresponds to the rule we, are considering. However, whether that view is right or wrong does not matter, because in the special circumstances of this case I am not prepared to say that the plaintiff should not be allowed on the merits to come up on appeal here, because I see the suit proceeded with a rapidity which for this country must almost be regarded as dazzling. The plaint was filed on the 18th June the hearing and the whole determination of the matter took place on the 30th and I think it may very well be that the plaintiff and his legal advisers had no time to make themselves ready with their case I always take the view, whenever I possibly can, that a plaintiff ought not to be shut out from the judgment seat where costs will afford a sufficient protection to the defendant as against the plaintiff who is guilty of some technical error or mistake. This is not a case of a plaintiff who allows litigation to drag on and constantly applies for adjournments, a thing with which we are so familiar. As I said, any remissness on the part of the plaintiff in this case may be taken to be amply cured by the payment of costs. We set aside the judgments of both the Courts below and send back the case to the Court of first instance for being tried and disposed of according to law. The plaintiff will pay the whole of the costs incurred by the defendant up to date.

Seshagiri Aiyar, J.

4. I agree. I am unable to agree with the contention of Mr. Seshagiri Sastri that the decision of the Munsif is not covered by the definition of the term 'decree.' Undoubtedly there was a decree in favour of the plaintiff for Rs. 10; his claim to the extent of Rs. 80 was disallowed. As regards the disallowed portion I fail to see how that is not an adjudication denying the right of the plaintiff to recover that amount. I, therefore, think that the con-elusion come to by the Munsif was a decree. Hence there is a right of appeal, unless there is a positive provision of law against giving that right. Section 2, Clause (2), in my opinion, applies only to total dismissals for default and not to partial dismissals of this kind. I am strengthened in this view by the language employed by the Legislature in describing Order IX, Rule 9. I, therefore, think that there is an appeal.

5. Upon the question whether the admission as to the liability to pay Rs. 10 comes under the expression 'admits the claim or part thereof' in Order IX, Rule 8, I have some doubts. The word 'claim' is not necessarily synonymous with the amount sued for. It may refer to the right litigated, irrespective of the arithmetical figure stated in the relief column. As I read the written statement, I regard it as an admission of the right litigated under the mortgage coupled with a claim to a set-off as regards the sum of Rs. 80. In that view, I would have held that the whole amount was admitted, and that the burden of proving that there had been a discharge to the extent of Rs. 80 was upon the defendant. The decision in Armour v. Bate (1891) 2 Q.B. 233 : 60 L.J.Q.B. 433 : 65 L.T. 137 : 39 W.R. 546 quoted by Mr. Seshagiri Sastri has rendered it unnecessary to consider this question any further. Lord Esher in that case held that the fact that the burden of proof1 was on the defendant would not enable the plaintiff to get a decree if there was no admission of the right sued for. Impliedly this seems to amount to a pronouncement that the claim to be admitted must be the Claim as laid down in the plaint and for the amount stated therein, and not simply of the cause of action. On the question as to whether the Appellate Court should not have given the plaintiff an opportunity of proving his case, it seems to me that there has been speedy justice with a vengeance in this case. Within thirteen days of the filing of the plaint, every stage in the suit had been rushed through; and we find that on the thirteenth day the plaintiff was not allowed an opportunity of proving his case and his claim was dismissed. In these circumstances I think this is a case in which an opportunity should be given to the plaintiff to prove his claim.

6. On the question of costs, I entirely agree with my learned brother. It was the failure of the plaintiff to have-his Pleader ready to go on with the case at the hearing that led to the dismissal. I think that on the plaintiff paying the costs incurred up to date the suit should be restored to file. Three weeks' time from the date of the ascertainment of the costs payable or four weeks from now, whichever is longer, will be allowed to plaintiff for payment of the costs. The defendant may be allowed to. pay the Court-fee on the set-off.


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