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Biswanath Dey Vs. Kishori M. Pal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 2274 of 1950
Judge
Reported inAIR1956Cal1
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rules 8, 9, 9(2) and 9(3)
AppellantBiswanath Dey
RespondentKishori M. Pal
Appellant AdvocateP.N. De, Adv.
Respondent AdvocateR. Choudhury and ;Sabyasachi Mukherji, Advs.
DispositionApplication dismissed
Cases ReferredSuresh Chandra v. Bank of Calcutta
Excerpt:
- g.k. mitter, j.1. this is an application for rest-oration of a suit which was heard in part' on 5-4-1955 and disposed of on the day following.2. the suit was one -for recovery of money lent and advanced, for interest and costs. on 6-4-1955, the suit was taken up; the plaintiff was examined-in-chief and was being cross-examined by counsel for the defendant when the court rose for the day and the matter had to be adjourned till the next day. after the disposal of some interlocutory matters the suit was called on again on the 6th april at about 11 a.m. or shortly thereafter.mr. de, learned counsel for the plaintiff,made a statement to court to the effect that theplaintiff was not present to be cross-examinedfurther. there is some dispute as to the further statement made by him. it is stated.....
Judgment:

G.K. Mitter, J.

1. This is an application for rest-oration of a suit which was heard in part' on 5-4-1955 and disposed of on the day following.

2. The suit was one -for recovery of money lent and advanced, for interest and costs. On 6-4-1955, the suit was taken up; the plaintiff was examined-in-chief and was being cross-examined by counsel for the defendant when the Court rose for the day and the matter had to be adjourned till the next day. After the disposal of some interlocutory matters the suit was called on again on the 6th April at about 11 a.m. or shortly thereafter.

Mr. De, learned counsel for the plaintiff,made a statement to Court to the effect that theplaintiff was not present to be cross-examinedfurther.

There is some dispute as to the further statement made by him. It is stated in the affidavit in opposition of Kishori Mohan Pal, the defendant, that Mr. De had stated that he did not want to proceed with the suit whereas in his affidavit-in-reply the plaintiff deposes to the effect that Mr. De had stated that the suit could not possibly go on.

This latter statement is described as being based on information received by the plaintiff from his solicitor and believed to be true. 1 myself have no definite recollection as to the exact words used by learned counsel except that he had-mentioned the absence of the plaintiff and that I had passed an order dismissing the suit with costs.

3. The plaintiff's case for restoration of the suit is that 'he had gone, to the office, of the Court Liquidator of the Calcutta National Bank Ltd., to arrange, for production of the original cheque No. CA147005, dated 28-5-1947 drawn by the plaintiff in favour of the defendant Kishori Mohan Pal.

The said Court Liquidator was served with a subpoena by the plaintiff's solicitor' on 5-4-1955, i.e., the date when the suit was called on for hearing, to produce the said cheque and the relevant ledger book. The Court Liquidator caused to be produced on that date a certified copy of the relevant entries in the ledger of the Calcutta National Bank Ltd., but could not produce the original cheque because the same could not be traced.

The petitioner states that after the rising of the Court on 5-4-1955, he had gone to the office of the Court Liquidator to arrange for production of the said document and had been requested by the clerk in charge of the Court Liquidator- to come again on the morning of the 6th April when the cheque was promised to be found, out.

Accordingly the petitioner had attended at the office of the Court Liquidator on the 6th 'April at about 10-15 a.m. in order to ascertain whether the original cheque had been traced; but unfortunately the clerk in charge happened to be absent at that time. Eventually the said clerk abed up at about 10-45 a.m. and the petitioner requested him to search the records and find out the cheque and left the office of the bank., to come to Court.

It is the petitioner's case that he reached the Court premises at about 11-5-a.m. and learned, to his dismay, that in his absence the suit had been called on and dismissed with costs.

4. The matter was' thereafter mentioned to me for being restored to the list but I declined to do so except on a formal application. A notice of motion was accordingly taken out on 26-4-1955, On 2-5-1955 this was called on when directions were given for the filing of affidavits.

On behalf of the defendant an objection was ' taken at the time -- I do not remember whether by the solicitor or by counsel -- that no copy of the application, as required by the provisions of Order 9 Rule 9, C. P. C. had been served on the respondent and that the affidavit in opposition would be filed subject to such objection. Thereafter the matter stood adjourned from time to time, affidavits being filed in the meanwhile;

5. The points which were taken against the application are, first, that on 6-4-1955 there was no failure on the part of the plaintiff to appear and as such Order 9, Rule 8 Civil P. C. did not apply and no application could be made under the pro- visions of Order 9, Rule 9 for setting/aside the dismissal; secondly, that in the facts and circum- stances of the case it has not been shown that the plaintiff was prevented by any sufficient cause from appearing in the suit on 6-4-1955; and thirdly that the procedure laid down by the Calcutta amendment of Order 9, Rule 9 has not been followed and as such no order can be made on this application in favour of the applicant.

6. The provisions of Order 9 Rule 8 and Order 9 Rule 9 as amended by the Calcutta- High Court are as follows:

'8. Procedure where defendant only appears -- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder'.

'9. Decree against plaintiff by default bars fresh suit -- (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.

But he may apply for an 'order to set thedismissal aside, and if he satisfies the Courtthat there was sufficient cause for his non-appearance when the suit was called on for hearing,the Court shall make an order setting aside thedismissal upon such terms as to cost or otherwiseas it thinks fit, and shall appoint a day for proceeding with the suit.

(2) The plaintiff shall, for service on the opposite parties, present along with his application under this rule either --

(i) as many copies thereof on plain paper as there are opposite parties, or

(ii) if the Court; by reason of the length of the application or the number of opposite parties or for any other sufficient reason grants permission in this behalf, a like number of concise statements, .

(3) No order shall be made under the rule unless notice of the application with a copy thereof (or concise statement as the case may be) has been served on the opposite party'. On the first of the three points mentioned above Mr. Chowdhury, learned counsel for the respondent, drew my attention to the provisions of Order 3 Rule 1 for showing what was meant by 'appearance in the suit' and submitted that it was not necessary that the party should be present in person and that the presence of his pleader or other recognised agent might be sufficient for the purpose.

He contended that if the plaintiff's pleader had stated that the suit should be dismissed with costs there was no default of appearance on the part of the plaintiff and therefore Order 9 Rule 9 would have no application. In support of this contention he referred me to various reported decisions for the purpose of showing what exactly the word 'appearance' in this connection connotes. I propose to deal only with the more important cases cited by him.

7. The case of 'Satish Chandra Mukherjee v. Apara Prasad Mukherjee' 11 Cal WN, 329 (PB) (A) shows that --

'When an application is made by a counsel or pleader who is instructed only to apply for an adjournment, which is refused, there is no appearance within the meaning of the Code'.

In .'Esmail Ebrahim v. Haji Jah Mohamed' 10 (Bom LR 904 (B), the facts were as follows:

'When the suit was called on for hearing two counsel who were briefed on behalf of the plaintiff were both absent but the plaintiff was present in person. In order to enable the plaintiff's counsel to come and appear the defendant's counsel raised issues.

As plaintiff's counsel were still absent the Court gave limited time for the plaintiff to appear. Unfortunately the plaintiff's counsel did not turn up even within the time allowed and the suit was dismissed.'

On an application made to restore the suit to the list the learned Judge Russell J., observed at page 905:

'It is not an 'appearance', by-counsel merely to ask for an adjournment: -- 'Hinga Bibee v. Munna Bibee' 31 Cal 150 (C). It is an 'appearance' when a party is present in person and asks for an adjournment which is refused, or & 'vakeel is present and says he had no time to prepare.'

On the facts of the case the learned Judge, held that there was no sufficient cause for setting aside the order of dismissal.

8. In the case of -- 'P.T. Rama Manandi v. V. Krishnan Menon' 26 Mad 267 (D), Bhashyarn Ayyanger and Moore JJ., held that it was not open to the Court of Appeal below (i. e. the District Court) to dismiss the appeal for default and that there should be a re-hearing. The facts shortly were as follows:

'An appeal being called for hearing in the District Court the pleader for the appellants appeared and represented that he had engaged a counsel to argue the appeal, that important papers were with counsel and that the pleader was not prepared to argue the case.'

The District Judge refused to grant an adjournment and dismissed the appeal. Their Lordships observed:

'There was no default on the part of the appellants. Their pleader duly appeared and asked for an adjournment. He did not withdraw from the case but merely urged that, as the records were in possession of his leader who was absent, he could not argue the appeal.

It was no doubt open to the Judge to refuse the adjournment, but when he. did so he was bound to write a judgment and dispose of the appeal. He could not dismiss it for default. We set aside the order of the District Judge and remit the appeal to him to be heard.'

Mr. Chowdhury relied on this case in aid of his submission that, unless counsel retire from the case there is appearance within the meaning of Order 9 Rule 8.

9. In 'Mowar Raghubar Singh v. Gouri Charan Singh' AIR 1918 Pat 259 (E), cited by Mr. Chowdhury, 26 plaintiffs together brought a suit for declaration of title and recovery of possession against several defendants. On 6-3-1917, on the application of the plaintiffs the suit was adjourned to the 10th March. On that day a compromise petition was filed bearing the signature of the vakil employed by the plaintiffs to which were affixed the thumb impressions of four of the plaintiffs.

It appears that the Subordinate Judge made a decree dismissing the entire suit on the basis of the compromise petition. Some of the other plaintiffs, who were not 'parties to this compromise, wanted to have the decree set aside. This application was dismissed by the Subordinate Judge and the plaintiffs filed an appeal from that order. Mr. Justice Mulllck observed:

'It is clear that the personal attendance of these plaintiffs was not necessary inasmuch as they had instructed a vakil to appear in their behalf for the purpose of conducting the suit and as the learned was was present on the day that the decree of dismissal was made it would not be subject to review in accordance with the procedure laid down in Order 9, Civil P. C.'

10. In the case of 'Mohammadi Husain v. Mt. Chandro' : AIR1937All284 , the pleader engaged by the appellant appeared before the Subordinate Judge when the case was called on for hearing and prayed for time on the ground that owing to other engagements he could not prepare the appeal, This application was rejected and the Subordinate Judge made an order to the effect that the appeal be dismissed for 'want of prosecution'. '

On the matter being taken up to the Allahabad High Court Niamatullah J., observed:

'As a matter of fact, there was appearance. The pleader, who had been engaged by the appellant to argue the case, was present and prayed for time. There is nothing in the Judgment of the lower appellate Court' to suggest that on the application for adjournment being dismissed he retired and there was no appearance thereafter.

The learned Judge clearly was of opinion that the refusal or inability of the pleader to argue the appeal amounted to 'want of prosecution'. He did not treat the case as if no appearance at all had been put in by or on behalf of the appellant.

It is perfectly clear to me that it was not open to the appellant to make an application for restoration of the appeal, as if the same had 'been dismissed for default of appearance.'

11. In 'Sikandar All v. Kushal Chandra' : AIR1932Cal418 , the facts were as follows: 'On the date fixed for hearing the plaintiff filed a petition for adjournment on the ground that he had engaged two pleaders from Sylhet one of whom was dead and the other was unable, to come to Cachar on that date.

The petition was rejected on the ground that there was no sufficient reason for an adjournment. The plaintiff again applied for time on that date and that petition too was rejected. Thereupon the plaintiff's pleader stated that he had no further instructions to proceed with the case.

The learned Subordinate Judge then called the plaintiff and some of his witnesses to the Courtroom and put some questions from which he discovered that the plaintiff had engaged some local pleaders also. He accordingly dismissed the plaintiff's suit for default.

An application was made by the plaintiff for restoration of the suit and the learned Subordinate Judge restored it under Order 9 Rule 9, Civil P. C.' It was argued that in the circumstances of this case the plaintiff should have been taken to be present in Court and therefore Order 9 Rule 9 had no application. Their Lordships Suhrawardy and Graham JJ. observed:

'A party may be present in the precincts of the Court or he may be found present in the Court room but if he does not take part in the suit it cannot be said that he has 'appeared'.

If a plaintiff comes to Court and files an application for adjournment and when the application is refused he retires from the suit, though he may not have physically retired from the Court, he is not to be considered any longer to be present in the suit and any order passed in such circumstances must be taken to be an order passed ex parte'.

Their Lordships agreed with the view taken by the Subordinate Judge. Relying on these decisions and on the fact that the learned counsel for the plaintiff had not asked for an adjournment of the case when it was called on for hearing on 6-4-1955. Mr. Chowdhury submitted that there was appearance on the part of the plaintiff inasmuch as his counsel was present, but did not proceed with the hearing of the suit.

Therefore according to Mr. Chowdhury there was appearance on behalf of the plaintiff and Order 9 Rule 9 had no application.

12. As against this contention Mr. De referred me to several decisions, which I shall presently deal with, and contended that the actual words used by counsel when he finds himself unable to go 'on with the case do not matter and that the Court should consider the broad facts of each case.

13. The first judgment relied on by Mr. De is that of the Pull Bench of the Madras High Court in -- 'Manickam Pillai v. Mahudum Ba-thummal' AIR 1925 Mad 21 (FB) (H). In this case, on the date fixed for hearing of the suit an adjournment was asked for by the plaintiff's vakil who stated that if no adjournment was granted he had no further instructions to go on with the case.

The vakil also took the plaint which he had drawn and signed and endorsed on it to the effect 'I have no instructions except to apply for an adjournment'. Their Lordships of the Madras High Court held that the effect of the endorsement on the back of the plaint was withdrawal by the plaintiff's vakil from his duties and obligation under the vakalatnama and in the circumstances of the case the pleader should not be deemed to have appeared. The next case cited by Mr. De is that of -- 'Basalingappa Kushappa v. Shidram-appa Irappa : AIR1943Bom321 .

In this case the' plaintiff's pleader applied for an adjournment on the date the suit was fixed for hearing and on that being rejected he withdrew from the case and stated that his client had not turned up & he had no instructions. Their Lordships held that when the pleader withdraws in the circumstances like these on the ground that he had no instructions all further proceedings must be taken to be ex parte.

14. Mr. De also relied on the Full Bench judgment of this Court reported in '11 Cal WN 329 (A)', (already referred to) and specially to certain observations of Mukherjee J., (appearing at page 336 of the report) in referring the matter to the Pull Court.

'The principle applies quite as much to a plaintiff as to a defendant and when either party to a litigation is represented by a pleader it is upon the assumption that the pleader is duly instructed and able to answer all questions relating to the suit.

If therefore mere physical appointment of the pleader was treated as appointment within the meaning of the Code the policy of law and ends of justice would both be defeated.'

The last case on this point cited by Mr. De is that of -- 'Batjnath Bothra v. Kedar Nath' : AIR1938Cal74 . In this case counsel applied for an adjournment before Lort-Williams J., in order that he might be in a position to tender evidence to be taken on commission, the commission not having been executed till then.

On the learned Judge's refusing the application counsel stated that he was not in a position to proceed. The suit was accordingly dismissed. On an application for restoration of the suit to the list Panckridge J. observed:

'It is-contended that in these circumstances the dismissal was a dismissal by decree and not a dismissal by order; The importance of this is that unless the suit was dismissed by order under Order 9 Rule 8 the Court cannot restore it under Order 9 Rule 9 (l). Rule 8 only applies where the defendant appears and the plaintiff does not appear when the suit is called on for hearing.

II these words are read in their strict connotation it is clear that the conditions of Rule 8 were not fulfilled, because the plaintiff's counsel was present and asked for an adjournment.'

His Lordship then referred to the judgment of the Full Bench in -- 'Satish Chandra v. Apara-prosad Mukherjee (A), and observed':

'in my opinion the exact language used by counsel is not of great importance and one must look at all the circumstances to see in any particular case whether counsel retired from the case so as not to prejudice his client by appearing, or whether he for reasons which commended themselves to him abandoned his claim in the suit. .

If it were for me to decide this question I should be inclined to say that in the present case counsel realised that the absence of the commission evidence was an insuperable obstacle in his way and therefore . considered that no good purpose would be served by carrying matters any further.'

I respectfully agree with the above observation.

15. In my view the Court should not attach too much importance to the exact words used and specially to those by Junior counsel in the agony of the moment. No one can say with certainty what were the exact words used by counsel in this case but It is clear that he did not (1) ask for an adjournment or (2) state that he was retiring or withdrawing from the case or (3) that he had no instructions to proceed with the case.

So far as I remember I asked him on the 6th April as to whether he had any other witness and he said that he had none. In the light of the authorities noted above I must hold that there was no default of appearance on the part of the plaintiff and the application is not covered by Order 9 Rule 9. Reaving aside this technical aspect, I think that the plaintiff has not been able to show' that on the 6th April he was prevented by sufficient cause from 'appearing' within the meaning of Order 9 Rule 9. Civil P. C. I think that In the circumstances of the case it has not been shown that there was sufficient reason for non-appearance of the plaintiff when the suit was called on for hearing. On this point reported decisions are not of much help and each case has to be decided on its own facts.

But it is noteworthy that this case finds a close parallel in the facts and circumstances of the case of -- 'Aktar Hossain v. Husseni Begam' : AIR1933Cal73 , decided by Rankin C. J. and C. C. Ghose J. A suit instituted in the District Court at Dacca was taken up by the Second Additional Sub-Judge, Dacca, on 5-2-1930. To quote the words of the learned Chief Justice--

'The plaintiff was examined but his examination was not concluded and as it was late in the day the suit was adjourned to the next day. There seems to be no doubt that the plaintiff had not been attending diligently to this matter end .when the suit was called on on the 5th he made up his mind to do what he could, and it seems, and. we accept it PS a fact that to get his witnesses he went off that very day to the district of Mymen-singh and came back with some witnesses on the morning of the 6th; but he must have been something like an hour late in attending the Court because the learned Subordinate Judge waited 40 minutes and then took some evidence and dismissed the suit on the merits.'

The learned Chief Justice observed:

'Now, in a sense there is not sufficient cause ' because the plaintiff ought to have done his work of connecting nis witnesses earlier and he ought to have got before the learned Judge sooner than he did. But it is evident that the man was doing his best and acting very strenuously in collecting his witnesses and bringing them in Court on the morning of the 6th and I do not think that we are debarred by terms of Order 9 Rule 13, Code of Civil Procedure from giving him his remedy when in a wrong-headed and muddle-headed way he was doing his best to have his witnesses before the Court.'

The above observations clearly show that in his Lordship's opinion a sufficient cause for non appearance had not been made out, but in mercy to the plaintiff their Lordships adopted a course which the law really did not countenance.

16. Mr. De also relied on certain observations of the Bombay High Court in the case of -- 'P. D. Shamdasani v. Central Bank of India Ltd.' AIR 1938 Bom 199 (SB) (L). In this case the applicant had been attending Court regularly for days waiting for his matter to be called on for hearing.

On 11-2-1937 the summons was in the list and there were some ten matters ahead of it some of which were contested and others were ex parte motions. On the 11th February the applicant turned up in Court at about 1-15 p.m. when he found that his summons had already been called on and dismissed for want of appearance at 12-30 p. m.

The excuse which he put forward was that on the preceding day i. e., on the 10th, a part-heard case was being heard and he was told by counsel appearing in that case that it was likely to go on fill at least 2 p. m. of the next day. He had accordingly thought that he would be safe in coming to Court at the time he did. Delivering Judgment Beaumont C. J.. observed:

'It is not often that you can say that failure to appear in. Court at the requisite time was due to 9 pure act of God. In the present case I think there was a certain element of negligence, but I think that the negligence was on the whole, exceedingly slight, because the applicant had taken some steps to ascertain how late he could be on the next day and he had the precedent of the five previous days to go upon.

In my opinion the learned Judge in this case exercised his discretion on a wrong basis.'

17. As against this Mf. Chowdhury relied on a judgment of this Court reported in -- 'Charu Chandra v. Chandi Charan' AIR. 1915 Cal 538 (M): In this case the applicant had been present in Court on 23-11-1912 when his suit had been set down for disposal. He found the Judge engaged in the trial of another suit.

He left the Court and went on some other business to return after an hour and find that his case had been called on and dismissed for n on prosecution as his pleader had informed the Court that he had received no instructions.

Their Lordships, Mookeree and Beacheroft JJ.. held that there was no valid reason for non-appearance and on the facts of the case the petitioner was not entitled to any consideration from the Court. Their Lordships further observed as follows:

'He was present in Court. He left the Court of his own accord to attend to other business, and he assumed that his own case would not be taken up during his absence.

He did not even take the precaution to instruct his pleader. The result was that when the case was called on during his absence, the pleader intimated the Court that he had no instructions to proceed with the matter. A party who deliberately chooses to act in this way must take the consequence of his own conduct.'

I was also referred to similar observations of Jardine J., of the Bombay High Court in the case' of-- 'Manilal Dhunji v. Ghulam Husein' 13 Bom 12 at p. 14 (N).

18. In this case the facts disclose a carelessness on the part of the plaintiff which cannot be excused. It was no part of the plaintiff's duty to approach the clerk in charge of the office of the Calcutta National Bank to trace the cheque or to do so as late as 5-4-1955 when the suit was actually taken up for hearing.

The suit is one instituted in the year 1950 and long before the suit came into the peremptory list it should have been the duty of the plaintiff and Ills solicitor to find out exactly what documents the plaintiff should rely on and arrange for their production.'

No ground has been put forward to show why the service of subpoena on the, Court Liquidator of the Bank had been put off till the 5th April when the suit was called on for hearing. Moreover, the plaintiff's examination-in-chief was over and if he had no other witness to examine, I do not see how he could possibly tender the cheque in evidence except with leave of the Court. In any event, it was clear to the plaintiff at 4 p.m. on 5-4-1955 that his matter would be at the top of the list and he called on at 10-30 a.m., the next morning or very soon thereafter. As he was himself being examined he should have known that his presence in Court at 10-30 a.m., on the morning of the 6th April was absolutely essential.

If any reminding of the clerk in charge of the Court Liquidator was necessary it ought to have been entrusted to someone else. The plaintiff had a solicitor on record and it was his duty to help the plaintiff in all such matters. Moreover, if proper steps had been taken in good time for production of the cheque and there had been a refusal or negligence on the part of the Court Liquidator to produce the same adequate steps could have been taken by this Court to get the document produced.

The plaintiff did not even choose to inform his lawyers that he would be attending at the office of the Court Liquidator the next day and that in the circumstances he might be delayed in attending Court. I feel that if he had made his intention clear to his lawyers his lawyers would have asked him not to take such a course.

In this respect a litigant in the mufassll is in a much worse position as he has to take steps personally in the matter of production of witnesses -- a course which a litigant in the Original ' Side of this Court does not ordinarily have to follow. Notwithstanding this difference their Lordships Rankin C. J. and Ghosh J., observed in 'Aktar Hossein's case (K)', that there was no sufficient cause for the plaintiff's non-appearance on the second day of the hearing of his suit.

If there was no sufficient cause made out in that case I think the plaintiff before me is in no better position and to my mind he has not shown that there was any sufficient cause for his nonappearance on 6-4-1955 when the matter was taken up for hearing.

19. The last point of Mr. Chowdhury was that the plaintiff has not complied with the provisions of Order 9 Rule 9, Civil P. C., and as such no order should be made in his favour in this case. He contended that it was the imperative duty of the plaintiff in this case to comply with Sub-rule (2) of Order 9 Rule 9 and present-along with his application a copy on plain paper or a concise statement of it for service on the respondnt.

His interpretation of Sub-rule (3) was that unless notice of the application with a copy thereof or a concise statement, as the case may be, had been served on the respondent no order could be made by this Court. He cited a passage from Maxwell on Interpretation of Statutes, 10th Ed. at 379 reading as follows:

'Enactments regulating the procedure in Courts seem usually to be imperative and not merely directory. If, for instance, an appeal from a decision be given with provisions requiring the fulfilment of certain conditions, such as giving notice of appeal and entering into recognisances, or transmitting documents within a certain (sic) a strict compliance would be imperative and' non-compliance would be fatal to the appeal.'

20. Reliance was placed on the case of --'Woodhouse v. Woods' (1859) 29 LJ MC 149 (O), (cases connected with the duties of Magistrates).' The facts were as follows: The appellant had been convicted for absenting himself from the services of the respondents without lawful excuse. He required the Justices to state a case for the opinion of the Court.

The Clerk of the Justices sent to the respondents the draft of the case, and they returned It;the Clerk then sent the case to the appellant, andit was sent to the Court, and was entered in theCrown paper, but without first giving notice. Inwriting of the appeal, together with a copy of thecase which was incumbent under 20 and 21 Vict..Chapter 43, Section 2, which enacted that the appellant

'shall within three days after receiving such case, transmit the same to the Court named in his application, first giving notice in writing of such appeal, with a copy of the case so stated and signed'

to the respondent. It was contended on behalf of the appellant that the omission was simply, as. irregularity which might be cured if the' Court would allow the case to stand over. A Rule was granted calling upon the appellant to' show cause why the case stated by the Justices under the above statute should not be struck out of the Crown paper on the ground that the provisions of Section 2 had not been complied with.

All the learned Judges were at one in making the Rule absolute. Compton J., observed as follows:

'It is not our duty to look to the hardship of any particular case. No excuse has been offered upon the facts for the non-compliance with the enactment; and we must decide upon the words alone of the section. In the first part of the section we have the authority of -- 'Peacock v. The Queen' 1858-4 CB NS 264 (PS, that the words make a condition precedent. The party who is dissatisfied may apply for a case within three days; and must transmit the case within three days to the Court, upon certain conditions, one of which is that notice of appeal, with a copy of the case, shall be given to the respondent.

It struck me that it might be very difficult to give the notice where the respondent could not be found; and we must not be understood as laying down a rule, that in such a case it would not be sufficient if the appellant had done all he could to serve the notice and deliver the case. It might be like a case of presentment of a bill of exchange and notice of dishonour. But here it must be considered that the words make the giving notice a condition precedent.'

Blackburn J., observed:

'The Court has no jurisdiction to hear the appeal except by this Act of Parliament; and the second section gives that jurisdiction and uses the words 'first giving notice etc.' If the Legislature intended to say that the giving such notice should be a condition precedent to our hearing the appeal, I see no other -words which could have been used. The Legislature must be considered to have made it a condition precedent.'

21. Among others Mr. Chowdhury also relied on the case of -- 'The King v. Bond' (1837) 6 Ad and E 904, corresponding to 112 ER 346 (Q). In this case one Francis Turner 'wanted to complain against a borough rate made by the Mayor and Town Council. He served a notices of appeal signed by himself in the following words:'

''To

The Mayor and Town Council of theBorough of Poole,

I, Francis Turner, being a burgess of the Borough of Poole and called upon to pay the rate or assessment hereafter mentioned, do hereby give you & each and every of you notice that I intend to appeal, and shall appeal, at the next General Quarter Sessions of the .Peace to be holden in and for the said borough, on the 10th of April next, against a borough rate at a meeting of the council of the said borough, held on Monday and Tuesday the 2nd and 3rd of January last, ordered and resolved to be raised, for the payment of the expenses to be incurred in carrying into effect the provisions of the Municipal Act.'

By section 92 of Statute 5 and 6, W. 4, C. 76

'If any person was himself aggrieved by any borough rate, it shall be lawful for him to appeal at the next Quarter Sessions; and the recorder, or justices shall have power to hear and determine the same, and to award relief in the premises as in the case of an appeal against any county rate'.

It was contended that in the notice given by Turner then was no statement either directly that the party was aggrieved or of facts showing a grievance. He did not show whether the grievance was on the parish or the individual, nor, if on the individual, what the objection was. It was argued by the Attorney General, who appeared in support of the rule that the Court would not countenance this technical objection and that the party, by giving notice, showed that he thought himself aggrieved. Delivering Judgment Lord Denman C. J., observed:

'We have had much doubt on this case, and for some time found it difficult to come to the same, opinion. We, have however at last agreed in the view which we take; and we think that the words in Statute 5 and 6 W. 4 c. 76, Section 92, refer- ring to the county rate,, bring the case within the reasoning of Lord Tenterden and Bayley J. in the cases which were cited. We are therefore bound to hold that as the notice neither states that the party was aggrieved, nor shews any grievance on the face of it, it does not do enough to give the Court below possession of the cause. And though I for one have felt great reluctance in coming to this conclusion, I may add that 1t will be very easy, when the rule is once understood to be established, to comply with it.'

22. Reliance was also placed on the case of -- 'Vaux v. Vollans' (1833) 2 LJ (NS) KB 87 (R). This was a case of debt for penalties under the Statute 57 Geo. 3, c. 99 against a clergyman for non-residence.

'By the 40th section of the Act no action for . penalties shall be commenced for any penalty until a notice in writing of such intended writ . or process shall have been delivered to such spiritual person, or left at the usual or last place of his abode and also to the Bishop of the diocese, by leaving the same at the registry of his diocese by the attorney or agent for the party who intends to sue.

In this case it was proved that a notice of action was served on Mr. Buckle, the Archbishop's Deputy Registrar, at his own house and Mr. Buckle took it next morning to the registry office, and placed it upon the desk, and informed the Archbishop of it.'

All the learned Judges came to the same con-. elusion that this was not a proper notice within ' the Act. Taunton J. observed:

'All the words in an Act of Parliament must however be taken to have some meaning, and It does not become the Court to say, that there may be a service otherwise than by leaving it at the registry.'

23. Mr. Chowdhury relied on all -these cases in aid of his contention that as no copy of the application, meaning the petition in this case, had been served on the defendant together with a copy of the notice of motion, the Court had no Jurisdiction to make an order.

As against this contention Mr. De submitted that we are to be guided by the rules of the Original Side of this Court and not by the provisions of Order 9, Rule 9 and if there was any conflict between the two the provisions of Order 9, Rule 9 would have to give way to the rules of the Original Side of this Court. He drew my attention to certain provisions contained in Chapter 20 of the rules of the Original Side of this Court and contended -that all applications, which under the rules could not be made in Chambers, had to be made on motion after notice to the parties affected thereby (Ch. 20, Rule 3).

The notice of motion had to be Intituled in the suit and had to -state the time and place of the application, the nature of the order asked for with a note at the foot thereof -specifying the grounds to be used in support of the application. The notice of motion was to be addressed to the party or parties intended to be affected by it (Chapter 20-, Rule 4). Under Rule 9

'Notice shall also be given to the opposite party or parties of all grounds intended to be used in support of, or in opposition to, any rule or motion and copies of such grounds, other than of proceedings already filed in this Court in the same suit or matter, shall be supplied to any party requiring the same upon payment of the usual charges.'

Mr. De submitted that these rules clearly show that it was not necessary or incumbent on the plaintiff to serve the copy of any grounds along with the notice of motion and that service of the notice of motion would be sufficient compliance with the provisions of Order 9 Rule 9. He relied on the Judgment of my learned brother P.B. Mukherji J. in the case of -- 'Mahabir Chandra' v. Sohon Lal' : AIR1955Cal476 , delivered on 4-4-1958 where in a similar application for restoration of the suit for default of appearance of the plaintiff his Lordship observed:

'Service of the notice of motion is on the, Original Side of this Court service of the application itself within the meaning of the Calcutta Amendment of Order 9, Rule 9 on the Code. This notice of motion is not in general terms only an intimation that an application will be made out has to set out in the body thereof the very specific orders Which are sought on the application.

In fact the notice of motion is itself a summary of the reliefs wanted on the application. It must be emphasised that the requirements of the Calcutta Amendment of Order 9', Rule 9 are also satisfied by a 'concise statement' and a service of a full copy of the whole application is not necessary.

I have no hesitation in holding that notice of motion on the Original Side of this Court is such a concise statement of the application within the meaning of the Calcutta Amendment of Order 9. Rule 9, Civil P. C.'

I regret I am unable to concur fully with all that fell from his Lordship. It may be that in some cases the service of a notice of motion, if it contains even a brief reference to the facts and circumstances leading to the making of the application, would be sufficient compliance with the pro-Visions of Order 9, Rule 9, Sub-rule (2), but I am unable to hold that the notice of motion before me in this case complies with all the requirements of Order 9, Rule 9, Sub-rule (2).

This particular notice does not contain even a concise statement of the facts and circumstances on which the Court was going to be moved for setting aside the dismissal and order restoration of the suit. The notice may be considered to be a part of the application inasmuch as it contains the orders' which the applicant is going to press for. but it certainly cannot be considered to be the application of the plaintiff.

24. The Original Side Rules do not define either the word 'motion' or the expression 'notice of motion' and reference may usefully be made to Daniell's Chancery Practice, Eighth Edition, Vol. 2. and to certain passages therein occurring at pp 1342 to 1352. The learned author states at p. 1342

'Whenever it becomes necessary to apply to the Court for its interference in a matter arising in the progress of a cause or proceeding, which cannot by the rules be obtained on summons at Chambers, the application is made by motion or petition.'

The learned' author then goes on to discuss what applications must be made by motion, and what by petition. A motion is thus defined by the learned author at p. 1346.

'A motion is an application, either by the applicant In person or his counsel, not founded upon any written statement addressed to the Court, and either originates, or is made in the course of the proceedings.'

The learned author then deals with what are motions of course which require no notice and to which no opposition is allowed, and other motions. At p. 1347 the learned author states

'Where the application to' be made to the Court is not of course, or does not come within that class of special applications which the Court permits to be made ex parte, a statement in writing of the terms of the motion must be served upon the adverse party or his solicitor before the day on which the motion is intended to be made. This statement is called a notice of motion.'

At p. 1352 occurs the passage

'a motion is made by the counsel to whom it is entrusted who in making it reads a notice of motion, and the- evidence, which is usually by affidavit entered into on' behalf of the party for whom the motion is made; any affidavits filed before the date of the notice of motion are not, however, admissible as evidence unless notice of the intention to read them has been duly served on the opposite party.'

What the notice of the application must contain in order to comply with the provision of Order 9, Rule 9 is not clear from the words of the Code itself. In my opinion, any notice which sets forth the orders to be asked for, might be sufficient compliance with the provisions of the Code.

In my view the word 'application' to be found in sub-rule (3) of Order 9, Rule 9 must mean the document containing the grounds on which the interference of the Court is sought. The application must, therefore, mean a document which contains' the facts and circumstances on which the applicant relies, as making out a sufficient cause for his non-appearance in the suit, and speaking for myself, I would hold that the service of the notice of motion in this case was not tantamount to service of the notice of the application with a copy thereof within the meaning of Order 9. Rule 9.

25. I respectfully agree with the opinion of P.B. Mukharji J. that the service of this notice-of the application with a copy thereof might be made at any time before the learned Judge pass-ed an order on the application. The words of Sub-rule (3) of Order 9, Rule 9, to my mind, do not make It incumbent on the party to serve notice of the application with a copy thereof in the initial stage of the proceedings and absence of service of these two documents together at the initial stage would not debar the applicant from claiming a remedy which he was entitled to, if he served notice of the application with a copy thereof' at' any stage before the making of an order, on the application.

26. I propose to take note of contention regarding the applicability of Order 9, Rule 9 to applications on the Original Side of this Court whichwas raised before me in a similar application onthe part of Rambadal Sambhunath in the caseof -- Tulsiram Shaw v. Rambadal', : AIR1956Cal17 infra (T), a matter in which I shall be deliveringjudgment presently. ' |

It was there argued that the Calcutta Amendment of Order 9, Rule 9 was in conflict with the rules of this Court framed under the Letters Patent and as such we are to be governed by the rules and not by Calcutta Amendment of Order 9, Rule 9.

A reference was made to Section 129, Civil P. C.; in support of the argument that the provisions of the Code are to give way to the rules of this Court framed under the Letters Patent for regulating its own procedure in the exercise of Its Original Civil Jurisdiction.

It may be noted that the Calcutta amendment was made not under Section 129, Civil P. C. but under Section 122 of the Code. I was also referred in this connection to two judgments of this Court viz. -- 'Gowaldas Sidany v. Luchmichand' : AIR1930Cal324 and -- 'In re Ram Dayal De' : AIR1932Cal1 . There was some doubt as to whether the provisions of Order 9, Civil P. C. applied to the' Original Side of this Court.

This has, however, been finally settled by a decision of the' Full Bench of this Court in --'Sk. Abed All v. Prafulla Krishna' : AIR1952Cal544 . It was there contended that inasmuch as some of the provisions of Order 9 could not be reconciled with several rules of Chapter VIII of the Original Side Rules, the former could not apply to an application in the Original Side of this-Court. Harries C. J. observed (See at p. 5481 :

'It is clear therefore that the rules contained in Chap. VIII of the Original State Rules though they are in conflict with some of the rules of Order 9, are valid and override the provisions of those rules.

That however does not mean that Order 9, Rule 13 is in any way affected. It is to be observed that there is no rule in Chap. VIII of indeed anywhere in the Original Side Rules relating to applications for setting aside ex parte decrees.

The Original Side Rules are silent on the matter and as Order 9, Rule 13 has not been made inapplicable to the Original Side by Order 49, Rule 3, I see no reason whatsoever why Order 9, Rule 13 should not govern the application made to set aside ex parte decrees on the Original Side.'

Applying the same reasoning I hold that there is nothing in the Original Side Rules relating to the application for setting aside an order of dismissal which is in conflict with the provisions of Order 9, Rule 9. The Original Side Rules do not specifically deal with applications for setting aside an order of dismissal for default of appearance on the part of the plaintiff.

Under these rules it is Incumbent on the applicant to serve a copy of the notice of motion in order to launch proceedings. He is called upon to supply copies of the grounds of the application, if required, on payment of usual charges. The Calcutta amendment of Order 9, Rule 9 makes it incumbent on him to serve not only a copy of the notice of motion but also the grounds which really correspond to the 'application' mentioned in Order 9, Rule 9(3). Order 9, Rule 9(3) does not disentitle a party to the charges to which he may be entitled under the Original Side Rules.

27. In my opinion, therefore, there is no conflict between the provisions of Order 9, Rule 9(3) and the provisions of Chap. XX of the Original Side Rules. So far as the application to set aside an order of dismissal is concerned the two can easily be harmonised. But in spite of my own view on the matter I feel bound to follow the judgment of P.B. Mukharji J. following the well known principle that a Judge of this Court sitting singly ought not to differ from the decision given by another learned Judge unless the former decision can be said to have been given 'per incuriam.'

This question arose in the case of -- 'Suresh Chandra v. Bank of Calcutta' 54 Cal WN 832 (Xi. Reviewing the older authorities and considering some, of the recent English authorities, their Lordships, Harries C. J. and Baherjee J., held that

'if there is a decision of a single Judge of this Court upon a question of law, (not given 'per incuriam') it is not right for any other single Judge, whatever his own views may be, to depart from it.'

In this case (namely, : AIR1955Cal476 --Ed.) his Lordship P.B. Mukharji J. considered the provisions of Order 9, Rule 9 and compared them with the provisions of the Original Side Rules. It may be that certain aspects of the matter were not placed before his Lordship as they were before me and probably his Lordship did not have the benefit of the very full and able argument addressed to me. P.B. Mukharji J. held that it would be sufficient compliance with the provisions of Order 9. Rule 9 if a ropy of the notice of motion and the grounds which were used in support of the motion were served separately on the respondent.

I feel bound to follow that decision although my own view is to the contrary. If the matter were 'res 'integra' I should have held that unless a copy of the notice of motion along with a cop of the application or the grounds used in support of the notice were served together on the respondent the Court has no jurisdiction to make an order on the application.

But as I have already held that there was nodefault of appearance on the part of the plaintiff in this case on 6-4-1955 and as I have furtherheld that there was no sufficient cause for non- appearance of the plaintiff on that day I must dismiss the application with costs.


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