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Tulsiram Bhagwandas Vs. Sitaram Srigopal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 99 of 1957
Judge
Reported inAIR1959Cal389,63CWN300
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 9, Rules 8 and 9 - Order 17, Rule 2; ;Calcutta Original Side Rules - Rule 36
AppellantTulsiram Bhagwandas
RespondentSitaram Srigopal
Appellant AdvocateG. Mitter, Adv.
Respondent AdvocateE.R. Meyer, Adv.
DispositionAppeal dismissed
Cases ReferredMaria Flaviana Almeida v. Ramchandra Santuram
Excerpt:
- p. chakravartti, c.j. 1. this appeal falls to be determined on a short point, but in the course of the argument, a wide ground was covered by the parties with a considerable citation of authorities on both sides.2. the two main questions in the appeal are whether in setting aside a decree by which he had himself allowed a part of the respondent's claim in the suit and disallowed the rest and restoring the suit to the list for further trial, g.k. mitter, j. was right and, secondly, even if he was not right, whether an appeal at all lies from his order.3. the facts are as follows : the respondent firm brought a suit against the appellant firm for specific performance of a contract of sale by delivery of the goods sold and, in the alternative, for the refund of a sum of rs. 35,200/- which.....
Judgment:

P. Chakravartti, C.J.

1. This appeal falls to be determined on a short point, but in the course of the argument, a wide ground was covered by the parties with a considerable citation of authorities on both sides.

2. The two main questions in the appeal are whether in setting aside a decree by which he had himself allowed a part of the Respondent's claim in the suit and disallowed the rest and restoring the suit to the list for further trial, G.K. Mitter, J. was right and, secondly, even if he was not right, whether an appeal at all lies from his order.

3. The facts are as follows : The Respondent firm brought a suit against the Appellant firm for specific performance of a contract of sale by delivery of the goods sold and, in the alternative, for the refund of a sum of Rs. 35,200/- which had been paid as the full price of the goods, as also a further sum of Rs. 1,32,559/- as damages. The Appellant's defence was that it had always been ready and willing to deliver the goods, but it was the Respondent who had asked for a cancellation of the contract and a refund of the price paid on the plea that the goods were no longer required. The contract, it was said, had thereupon been cancelled and a cheque for a sum of Rs. 35,200/- had been. sent to the Respondent which the Respondent had refused to accept. The Appellant pleaded further that it was still ready and willing to refund the sum of Rs. 35,200/- but it repudiated the Respondent's claim for a delivery of the goods as also the alternative claim for damages. On those pleadings the parties went to trial.

4. The suit came up for hearing before G.K. Miter, J., on 8-3-1957. What happened on that date and the day following, can best be stated in the words of the teamed Judge himself. In the judgment under appeal he has observed as follows:

'On 8-3-1957, the suit was called on and heard in part in the presence of Counsel for the parties. The plaintiff was represented by Mr. B.K. Ghosh and Mr. M. Mookerjee. Three witnesses were examined, the examination-in-chief of the third witness being concluded on that day. On Monday, 11-3-1957, the suit appeared in the peremptory list as the first part-heard suit. Ahead of this, there were one or two Motions and some undefended suits. At about 11-30, when the suit was called on, there was no Counsel present on behalf of the plaintiff. I waited for at least a quarter of an hour in order to allow the plaintiff an opportunity of appearing through Counsel, but as no one appeared even after the lapse of this period, I asked Mr. Mitter, learned Counsel for the defendant, to take up the cross-examination of the witness who was in the box. Mr. Mitter finished his cross-examination in a few minutes. Even then there was no appearance of Counsel for the plaintiff. On enquiry, Mr. Mitter told me that he did not propose to examine any witness and closed his case. At this stage Mr. Mookerjee junior Counsel for the plaintiff, appeared and asked for leave to examine some witnesses on the question of damages claimed by the plaintiff. I refused to give him such leave. Mr. Mitter, learned Counsel for the defendant stated that on the evidence, that plaintiff could only claim Rs. 35,200/- admitted in the written statement. Mr. Mookerjee did not make any submission on behalf of his client but on my asking him as to whether his client could claim any damages, he said that on the evidence, as it stood, it was not possible for him to do so. So far as I recollect, he did not make any statement on his own and he only answered the question which was put to him by me.'

5. After the events narrated above had happened, the learned Judge proceeded to give his decision. Five issues had been framed in the suit and he gave, as he stated in the judgment by which he disposed of the suit, his findings on the issues on the evidence. He held that cancellation of the contract had not been proved, but at the same time, specific performance, as asked for, could not be allowed. A breach of the contract by the Defendant appeared to have occurred, but it was not possible to come to any conclusion as to what damages, if any, had been suffered by the Respondent. In the result the learned Judge decreed the suit for Rs. 35,200/- with interim interest, interest on judgment and costs. That decree was passed on 11-3-1957.

6. On the very next day, the Respondent took out a Notice of Motion with respect to an application to be made before the learned Judge on the 13th of March, next. In the application made, he set out the circumstances in which according to him, both of the two Counsel engaged on his behalf had been unable to attend to the suit on 11-3-1957 when it was called on and the attempts made by his Solicitor to bring them before the learned Judge. The application then proceeded to state that five witnesses, called by the Respondent, had been present in Court on the day in question for the purpose of giving evidence and they, as well as certain other witnesses who were going to be subpoena'd would have proved the particulars as to the damages to which the Respondent was entitled. The application also stated that the learned Junior Counsel, Mr. Mookerjee, when he appeared at last, had not only asked for the indulgence of being allowed to call his witnesses, but also asked to be allowed to put further questions in examination-in-chief to the witness who had been examined-in-chief on the 8th of March, and cross-examined on the 11th. As to the presence of the Respondent's witnesses, as alleged in the application, the deponent of the Appellant's affidavit-in-opposition merely stated that he had no knowledge of the allegations and did not admit the same. The affidavit-in-reply added no material facts to those stated in the application.

7. The learned Judge took the view that on the day the suit had been disposed of, there had been no appearance by or on behalf of the Plaintiff-Raspondent. He therefore thought that he was entitled to grant the relief prayed for if he found that the Plaintiff-Respondent was entitled to it. On the merits, he held that the fault for the non-appearance did not He with the plaintiff firm which was ready with its witnesses, but that it lay entirely with its lawyers. On that finding he held that the ends of justice required that the decree should be set aside and the suit restored to the list and he made an order to that effect with a direction on the Respondent to pay the Appellant all costs thrown away, as also the costs of the application. It is against that order that the present appeal is directed.

8. Since the learned Judge; thought it necessary to consider whether there had been any appearance on the part of the Plaintiff on the day the suit had been disposed of, it is clear that he was thinking in terms of the Code of Civil Procedure. The date was not the date of the first hearing of the suit but the date of an adjourned hearing. The case would therefore fall, not under Order 9, Rule 8 of the Code, but under Order 17, Rule 2, which provides for the case where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. Tile Rule lays down that in such a case the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9, or make such other order as it thinks fit. Since; it was the Plaintiff whose non-appearance was in question, the provision of Order 9 applicable to the case would be Rule 8 of that Order. That Rule provides that where the Defendant appears but the Plaintiff does not when the suit is called on for hearing, the Court shall dismiss the suit unless the Defendant admits the claim or a part thereof, in which case the Court shall pass a decree against the Defendant upon such admission and where a part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. The learned judge in the present case did not dismiss the suit, but what he did was that he passed a decree in the Respondent's favour for a refund of the price which the Appellant had admitted to he refundable and as to which the Respondent had led some evidence and dismissed the claim for damagas as to which no evidence had been led. He did not dismiss the part of the suit which he dismissed for default of the Plaintiffs appearance, but dismissed it on the merits on the ground that there was no evidence before him on which he could come to a finding. Thus, even if there was non-appearance on the part of the plaintiff and even if the learned Judge was proceeding under Order 17, Rule 2 of the Code, it is clear that he did not dispose of the suit in terms of Rule 8 of Order 9, but made 'some other order' which he thought it fit to make. He thought fit to decide the suit on the merits on such evidence as there was.

9. The first question is whether there really was non-appearance on the part of the Respondent as held by the learned Judge. With respect to him, I find myself entirely unable to agree that the Respondent can be said to have failed to appear on 11-3-1957. Appearance need not be in person, but appearance by a lawyer is also valid and sufficient appearance. In the present case, the Respondent's Junior Counsel did make his appearance before the learned Judge when the suit was proceeding. On appearing in the physical sense, what he did way not that he asked for an adjournment and withdrew from the case on an adjournment being reinsed, but he wanted to proceed with the suit and to call his witnesses. That prayer was made, as it could only have been made, in the suit and the prayer was for a participation in the proceedings. In those circumstances, if the learned Counsel did not appear in the suit, I am unable to see what or what else he did. It is quite true that the learned Counsel was not allowed to take part in the proceedings in the manner he wanted to, but that only means that a prayer made in the suit by a party appearing in it was refused. It often happens that a prayer made by a lawyer in a suit or other legal proceeding is disallowed and if he has nothing to do other than what he wanted to do, he merely stays on and does not take any further part in the proceedings of an active character. But because such a prayer is refused, it can by no means be said that he does not appear or that, having appeared, disappears. The learned Judge has said that the statement made by the Counsel to the effect that in view of the state of the evidence, it was not possible for him to claim any damages on behalf of his client was made not voluntarily, but in answer to a question of his own. It may be that if the answer given to the learned Judge's question had been the only part taken by the learned Counsel in the proceedings of the day, the Respondent could not be said to have appeared through him, although the correctness of even that proposition I doubt. Rut apart from the answer to the learned Judge's question, there was the earlier intervention by the learned Counsel in the form of a prayer to call his witnesses and if the Respondent is to be believed, also to put some further questions in examination-in-chief to a witness already examined. I am unable to see how that intervention can be said to constitute anything but appearance in the suit, particularly as the learned Counsel stayed on even after life prayer had been refused. I am accordingly of opinion that there was appearance on the part of the- Plaintiff-Respondent on the day the suit was disposed of and therefore Order 17, Rule 2 cannot apply and that there was in law no disposal of the suit under that Rule either in the manner prescribed in Order 9, Rule 8 or otherwise.

10. If the Respondent did appear on the day the suit was disposed of, there was obviously no ex parte dismissal and there could be no question of any restoration of the suit dismissed in part for default. At least, such would be the position under the Civil Procedure: Code. In the present case the suit was not wholly dismissed but that circumstance would not prevent Order 9 Rule 9, from applying if the portion dismissed had been dismissed for default. What Order 9, Rule 8 primarily contemplates is a dismissal for default, whether of the whole suit or, where a portion of the claim has been admitted, of the rest of the suit. If there has been an ap-pearancer on the part of the Plaintiff, the decree passed is not a decree made on default and even when a part of the claim is dismissed, it must be a dismissal on the merits, although it may be a dismissal for want of evidence, as in the present case it was.

11. On this part of the case, the Appellant relied upon two decisions which support its case, although on a closer analysis, they must be held to be slightly distinguishable on the facts. The first case cited was Kader Khan v. Juggeswar Prasad Singh, ILR 35 Cal 1023, decided by Wood-roffe, J. The facts in that case were that on a date of an adjourned hearing, the Plaintiff closed his case and thereafter the Defendant entered on his defence He tendered some documentary evidence, read the evidence of several witnesses taken on commission and examined two witnesses in Court. It was understood that two other witnesses, including the Defendant himself, were going to be called on the next day, but on the next day, those witnesses had not arrived and accordingly an adjournment was asked for. The learned Judge adjourned the case till the following day, but on the following day, the Defendant's Counsel applied for A further adjournment on the ground that his witnesses had not yet arrived. The Court refused the adjournment and thereupon the Defendant's Counsel withdrew from the case. The learned Judge then heard the Counsel for the Plaintiff and decided the case on the merits. When an application was made on behalf of the Defendant for setting aside the decree under Section 108, read with Section 157 of the Code of 1882, corresponding to Order 9, Rule 13 and Order 17, Rule 2 of the present Code, the learned Judge dismissed the application in the view that he had no power to set aside the decree on the application made to him and that the defendant's remedy lay by way of an appeal or perhaps an application for a review. It appears to me that the case before Woodroffe, J. was a case under what was formerly Section 158 and is now Order 17 Rule 3 of the Code, because time had been given to the defendant to produce his witnesses and he had failed to produce them. Order 17, Rule 3 provides, as Section 158 of the old Code did, that in such a case the Court may, notwithstanding the default, proceed to decide the suit forthwith. Since the direction of the law is not that the suit is to be decreed ex parte or dismissed for default, but it has to be decided, the Court has to give a decision on the merits if there are materials on the record for such a decision. That is what Woodroffe, J. had done when he had disposed of the suit and for obvious reasons no application for restoration of the suit would lie. The decision is no authority, at least no direct authority, as to a case in which a party did appear on the date of an adjourned hearing and it is also not a case in which the applicant in the subsequent application for restoration was the Plaintiff. But the case certainly decides that when on a date of an adjourned hearing, a decision is given on the merits, even if it be in the absence of a party, it is not open to such party to apply for a setting aside of the decree and a restoration of the suit.

12. The next case cited was Manmohan Das v. Krishna Kant, AIR 1933 All 41, which is closer to the present case on the facts. There on a date of an adjourned hearing, the plaintiffs pleader applied for an adjournment which was refused and thereupon he withdrew from the case. The Court then dismissed the suit for non-prosecution. Under an Allahabad amendment of the Code, an appearance by a pleader even for the purpose of making an application for adjournment is appearance in the smt and therefore the plaintiff was to be taken as haying appeared in the suit on the date in question. In those circumstances it was held that the plaintiff having appeared, the dismissal of the suit was not a dismissal for default, but dismissal on the merits for want of evidence and, therefore, there could be no restoration of the suit after setting aside the decree. If the plaintiff-respondent appeared in the present case before the learned Judge on the day the suit was disposed of, as in my view it did, the position would be exactly the same as in the Allahabad case on the facts I have so far stated. Still, it seems to me, that the decision will not strictly apply to the present case because, for reasons which do not appear from the judgment, the learned Judges treated the case as coming under, not Rule 2 of Order 17, but under Rule 3. That circumstance, however, does not make any practical difference, because when a suit is decided under Rule 2 on the merits instead of being dealt with on the basis of default, as the suit in the present case was, the position is precisely the same as when under Rule 3 the suit is decided 'forthwith.'

13. A third decision cited by the appellant seems, however, to be exactly in point. It is a decision of the Bombay High Court in the case of Esmail Ebrahim v. Hajee Jan Mohamed, ILR 33 Bom 475. In that case too, two learned Counsel had been briefed for die plaintiff, but on the dale-fixed for the first hearing of the suit, none of them was present in Court, although be himself was. An application for an adjournment was made through another Counsel, instructed on the spot, but it was not granted. The Court then waited for some further time and then on the non-appearance of the plaintiff's Counsel, dismissed his suit with costs. An application was thereafter made under Section 103 of the Code of 1882, corresponding to Order 9, Rule 9 of the present Code, for a restoration of the suit, but it was dismissed with costs. On appeal, the Appellate Division of the Bombay High Court held that since the plaintiff was present in Court and he could be questioned by the Court under Section 117 of the old Code and could also have examined his witnesses or instructed other counsel, there was no failure to appear and therefore Section 103 of the Code would not apply. I am not sure whether under the rules of our Court, a plaintiff can in similar circumstances be said to have appeared, but the case certainly decides that if tbere was appearance on the part of the plaintiff, the dismissal of his suit, even if the merits were not gone into, cannot be a dismissal for default and accordingly no question of setting aside the dismissal and restoring the suit on an application under Order 9, Rule 9, can arise. A somewhat similar view was taken by this Court in a case of a non-appearance by a Defendant after his case bad been partially entered into, though the facts as stated in the judgment are not very clear (see Jasoda Dassi v. Rameswari Dassi, 14 Cal LJ 603).

14. It appears to me that whether the decisions cited at the Bar fully apply or do not, the decree could not under the provisions of the Code be set aside and the suit restored on an application, if the Plaintiff-Respondent had appeared in the suit on the 11th March, 1957. He did appear by one of his Counsel, as I have tried to show. In Bis-wanath Dey v. Kishori Mohan Pal, : AIR1956Cal1 , the learned Judge himself held on facts which appear to me to be much weaker than those of the present case, that there had been appearance on behalf of the plaintiff. The facts in that case were that the Plaintiff himself was under cross-examination at the rising of the Court on a particular day, but when the suit was called on again on the following day, he was absent. Thereupon, or; being asked by the Court, his learned Counsel made some statement, either that he did not want to proceed with the suit or that it was not possible to proceed with it, but he did not retire. On those facts, G.K. Mitter, J., held that there had been no default of appearance on the part of the Plaintiff and he could not maintain an application under Order 9. Rule 9, since his learned Counsel had been present in Court but had not either asked for an adjournment or stated that he was withdrawing from the case, or stated that he had no instructions to proceed with it. If there was appearance through the Counsel in those circumstances, I am quite unable to see how it can be said that there was none in the present case and how an application for setting aside the dismissal could be maintained. The decree, in my view, was a decree passed in the presence of the Plaintiff and so far as it was a decree of dismissal, it was not a dismissal for default of appearance, but dismissal on the merits for want of evidence.

15. It was contended on behalf of the Respondent in the second place that even assuming that Order 17, Rule 2 read with Order 9, Rule 8 did not apply and consequently Order 9, Rule 9 also would not, the learned Judge had nevertheless power to make the order he did under Section 151 of the Code. I do not consider that contention to be tenable. The essence of the Code, as is well-known, is to be exhaustive so far as it goes and as respects matters for which the Code expressly provides, there is no room for the exercise of any additional jurisdiction under Section 151. This principle, which has become a common-place one now, was stated by Woodroffe, J. with much clarity and wealth of detail in the well-known case of Hukum Chand v. Kama-lanand Singh, ILR 33 Cal 327 and it has since been reiterated in other decisions, too numerous to mention. The subject of remedies which a party may have if the docision in a suit goes against him on account of his failure to appear has been specifically dealt with by the Code and, along with other remedies, a remedy of a summary character has been provided. The grounds on which the remedy can be claimed and granted have also been stated in the Code. If in a particular case of non-appearance, those grounds cannot be made out and no case under the specific provisions of the Code can be established, it is quite impossible that the scope of the summary remedy should be extended by invoking the Court's inherent powers under section 151. Just as an appeal can be had only if the statute provides for an appeal and only on the grounds recognised by the statute or an application for a review can be made only if it is warranted by the statute and only on the grounds which the statute allows, so can a summary setting aside of an ex parte decree for a dismissal for default be had only if the grounds provided in the Code for such relief are made out. As regards Order 9, Rule 13, it has been held in Sherajul Hague v. Kashim AH Khairati, 39 Cal WN 894; Haridas Mukherji v. Bejoy Krishna Das : AIR1930Cal387 ; K. B. Dutt v. Shamsuddin Shah : AIR1930Cal486 : Indian Jute and Cotton Association Ltd. v. Nandlal Atal, 57 Cal WN 495; and Neela-veni v. Naravana Reddi, ILR 43 Mad 94: (AIR 1920 Mad 640) (FB), that where the grounds, as stated in the role, cannot be made out, the Court cannot nevertheless restore the suit on other grounds, purporting to act under Section 151 of the Code. It is true that on rare occasions it has been held that the Court can act under Section 151 even when the specific provisions of the Code do not apply, e.g., Abduillabhai Ebrahimji v. Isabhai Najimuddin, AIR 1932 Bom 634, but the better and the preponderating judicial opinion is in favour of limiting parties to the specific provisions made in the Code. In the case of Akhtar Hossain v. Husseni Begum : AIR1933Cal73 , Rankin, C. J., sitting with C. C. Chose, J., might at first sight appear to have proceeded under Section 151 of the Code, but in reality he regarded the rather weak cause for the non-appearance in that case to be sufficient cause in the very special circumstances. In the case of : AIR1930Cal488 , to which I have already referred and in which Rankin, C. J. had to deal with the question directly, he observed that he entirely dissented from the view that if no case was made out under Order 9, Rule 13, it was open to the Court to enlarge the Rule by 'talking about Section 151.' A direct authority that there is no scope for the application of Section 151, where Order 9, Rule9 applies is the decision of the Allahabad High Court in the case of : AIR1933All41 , to which I have referred earlier.

16. I may also point out that the question as to whether Section 151 of the Code can be invoked has arisen and has been discussed only in cases where there was non-appearance on the part of either the plaintiff or the defendant and he was unable to make out the grounds set out in Rule 9 or Rule 13 of Order 9 of the Code. It would indeed be odd to speak of acting under Section 151 in a case where the party was present and the decree cannot be said to have been made ex parte or the dismissal cannot be said to have been for default and what is wanted is the setting aside of a decree for dismissal made on the merits and a restoration of the suit. I am accordingly of opinion that if the respondent's easel could not come under Order 9, Rule 9, as in my view it could not, no relief could be granted to it under Section 151 of the Code. His sole remedy was by way of an appeal from the decree or it might be also by way of an application for review.

17. I have so far proceeded on the footing that there was appearance on the part of the plaintiff on the day when the suit was disposed of, but assuming I am wrong and there was no appearance by the plaintiff as the learned Judge has held, the position, in my view, would not be different. The date was a date of an adjourned hearing and on the assumption I have made, the plaintiff was absent. If, because he was absent, the learned Judge had proceeded under Order 9, Rule 8 and had decreed the admitted part of the claim and dismissed the rest of the suit for default, an application under Order 9, Rule 9, for a restoration of the suit would undoubtedly lie. But the learned Judge could also make such other order as he thought fit and that was what he in fact did. It has been held that the words 'make such other order as it thinks fit 'in Order 17, Rule 2 mean that the Court can adjourn the suit or it can decide the suit on the merits, if there are materials on the record for doing so. The learned Judge in the present case did not proceed on the basis of default at all, but decided the suit on such evidence as he had before him. He answered the issues and recorded his findings on them on, as he expressly said, the evidence; he allowed the claim for a refund of the price paid for the goods, because the Plaintiff proved it by evidence and the Defendant did not repudiate it; but he dismissed the claim for damages, because, in the absence of any evidence, he could not come to any conclusion as to whether any loss had been suffered by the plaintiff. The dismissal of this part of the plaintiff's case was thus a dismissal on the merits for lack of evidence and not a dismissal for default of appearance. In a case coming under Order 17, Rule 2 by reason of the plaintiffs failure to appear on a date of an adjourned hearing of a suit, an application under Order 9, Rule 9, can lie only when the Judge proceeds under Order 9, Rule 8 instead of deciding the suit on such evidence as there may be before him. Since the learned Judge followed the latter procedure and decided the suit on the merits, there could not possibly be any application for setting aside the partial dismissal of the suit and for its restoration to the file, even if there was non-appearance on the part of the plaintiff.

18. It would thus appear that whether the Plaintiff appeared on the day on which the suit was disposed of or failed to appear, there could not be, in view of the nature of the decree passed by the learned Judge, any application for a restoration of the suit in either event. 1 cannot, how-ever, agree with the appellant that even if the learned Judge was right in holding that the plaintiff had not appeared on the day the suit was disposed of his order for restoration of the suit was had, because he had not found sufficient cause for the non-appearance and had not even applied his mind to the question. In my view, the learned Judge was quite clear that the plaintiff had done all that was possible for it to do to cause an appearance to be made on its behalf and that the fault for the non-appearance lay with its lawyers who had no justification for letting it down in the manner they did. That view, expressed by the learned Judge, amounts to his finding that so far as the Plaintiff itself was concerned, there was sufficient cause for the non-appearance which had occurred. It is true that the failure of a lawyer I to appear in a case, for which his client is in no way responsible, has not always been regarded by the Courts as sufficient cause for non-appearance. In the old case of Raj Narain Burdhan v. Akroor Chunder Roy. 24 Suth WR 141, the plaintiffs Pleader failed to appear and the suit having been dismissed by the Munsif for default, but restored by a Subordinate Judge on appeal, this Court held that it was the duty of the Plaintiff to make his Pleader appear and if he lost the suit by the fault of his Pleader, he might take such steps against the Pleader as he might be advised to take. 'It is contended,' observed the learned Judges, 'that the absence of the Pleader was accounted for; but the Code does not say that, when the absence is accounted for, the suit should not be dismissed.' With great respact, this view does not appear to me to be reasonable, because if non-appearance of the pleader is the party's non-appearance and such non-appearance takes place without any fault on the part of the party and in spite of his best efforts to prevent it, I do not consider it fair to hold that there was still no sufficient cause for such non-appearance of the party. But this point need not be discussed further because, in my view, even if there was non-appearance on the part of the Plaintiff in the present case and there was sufficient cause for such non-appearance, no application for a restoration of the suit could still lie, because there was no dismissal for default.

19. It was next contended on behalf of the plaintiff-respondent that even if no application under Order 9, Rule 9 of the Code lay, the learned Judge had jurisdiction under the practice of the Original Side of this Court to recall the decree passed by him, so long as the decree was not completed and signed. The practice is a well-recognised one and its existence or validity in law need not be disputed. Buckland, J. followed the practice in the case of Sarupehand Hukumcha'nd v. Madhoram Raghumall : AIR1925Cal83 , where he vacated an order dismissing a suit for default under Ch. X, Rule 36 of the Rules of the Original Side and directed the suit to be heard. Another instance where the practice was followed is the case of In the matter of Steel Construction Co. Ltd., 39 Cal WN 1259, where Mcnair, J., recalled an order made by him in a company matter when he discovered that at the time when he made the order, the Company jurisdiction was being exercised by another Judge under the distribution of business made by the Chief Justice and also that the order had been made without giving notice to the party affected which could not in law be done. The law with regard to this matter was recently reviewed at great length in the case of In re. Harrison's share under a settlement, (1955) 1 Ch. 260, by a learned Judge of the English High Court and then by the Court of Appeal, where clear pronouncements in favour of a Judge's right to recall his order before its completion were made. In the present case when G.K. Mitter, J. made the order for the restoration of the suit, the decree passed by him on 11-3-1957 had not been drawn up and completed. But the short answer to the appellant's argument on this point is that the learned Judge did not at all purport to proceed under the practice and made no reference to it in his order. Instead, he treated the Plaintiff as having failed to appear, held that ha would have jurisdiction to restore the suit if sufficient cause for the non-appearance was made out, found sufficient cause and then set aside his decree instead of recalling it. I do not, therefore, think that the Plaintiff can rest his case on a jurisdiction which the learned Judge did not purport to exercise. I would add that the practice of a Judge recalling an order on just grounds before he has signed it is not peculiar to the Original Side of the Court, but obtains in other Courts as well. It need hardly be pointed out that although the practice exists, a Judge's jurisdiction under it cannot be exercised arbitrarily, but just and sufficient grounds for its exercise must always be made out. In the case of In re. Roberts (1887), WN 231, it was said that a Judge had the right to recall an order before it had been drawn up and to re-hear the matter 'if something was brought to his attention which he had not sufficiently considered.' Besides that the learned Judge in the present case did not purport to exercise the general right of recalling an order before it was drawn : up, it appears to me that there could be no good reason for exercising the right in a case where a suit had been considered on the merits and decided on such evidence as the Court had before it. I do not, therefore, think that if the Plaintiff cannot support the order as validly made under Order 9, Rule 9, he can still support it as validly made in exercise of a Judge's right on the Original) Side of this Court to recall an order or decree before it has been completed and signed.

20. It was lastly contended on behalf of the Plaintiff that whether the learned Judge's order was right or wrong, it could not be questioned by means of an appeal, because no appeal from it lay in law. The present appeal could be a good appeal only if the learned Judge's order could be said to be a 'judgment' and the appellant's endeavour was to show that it was a judgment, because it decided certain questions touching the merits of the controversy between the parties. A large number of decisions were cited on each side for showing when an order was a judgment and when it was not. I do not consider it necessary to embark upon a discussion of that much-vexed question, because there is a direct authority of a Division Bench of this Court which is against the appellant's contention and which we are bound to follow, unless we consider it necessary to make a reference to a Full Bench. In the case of Maharaj Kishore Khanna v. Kiran Shashi Dasi, ILR 49 Cal 616: (AIR 1922 Cal 407), it was held by Sanderson, C, J. and Richardson, J., that an order under Order 9, Rule 9, restoring a suit dismissed for default, was not a judgment and was therefore not appealable. In taking that view, the learned Judges followed an earlier and unreported decision which also was a decision of a Division Bench and to which Sander-son, C. J. had been a party. A similar view has also been taken with respect to other similar orders. In the case of Sarat Chandra Sarkar v. Maihar Stone and Lime Co. Ltd., ILR 49 Cal 62: (AIR 1922 Cal 335), it was held that an order setting aside the abatement of a suit was a judgment and therefore appealable, because it deprived the party in whose favour the abatement operated of a valuable right. That case was dissented from by the Bombay High Court in the case of Maria Flaviana Almeida v. Ramchandra Santuram, AIR 1938 Bom 408, where it was held that no appeal lay from an order setting aside an abatement under Order 22, Rule 9 (2) of the Code. The decision in ILR 49 Cal 62: (AIR 1922 Cal 335) was itself based on an earlier and unreported decision and that decision was cited before the learned Judges in the case of ILR 49 Cal 616 : (AIR 1922 Cal 407). It was contended that the reasoning of the decision as to an order setting aside an abatement would be inconsistent with the view that an order, restoring a suit dismissed for default, was not appealable, but the learned Judges preferred to follow the other earlier decision which was a direct decision as to an order under Order 9 Rule 9. As regards the dissent of the Bombay High Court from the Calcutta view as to the appealability of an order setting aside an abatement, I may observe that one criticism made by the Bombay High Court does not appear to be very well-grounded in reason. It was said that this Court had paid no regard to the fact that Order 43, Rule 1 of the Code did not provide for an appeal from an order setting aside an abatement and mat it would be anomalous to hold that a similar order made on the Original Side in the High Court would be appealable as a judgment, which this Court had overlooked. I may point out that if there be an anomaly in conceding an appeal from certain orders made on the Original Side of a High Court which are not appealable under the Code, there is some good reason for it, because orders, not appealable under the Code, are generally revisable under Section 113 whereas no revision lies from any order made by a Judge on the Original Side, This difference justifies to a certain extent a liberal interpretation of the term 'judgment'. Besides, if the Letters Patent of a High Court grant an appeal from orders which are not appealable under the Code, there can be no reason for not giving effect to the Letters Patent simply because there would be no appeal from similar orders governed by the Code. It must however be conceded that there is hardly any valid ground tor distinguishing orders setting aside an abatement from orders setting aside a dismissal for the purposes of an appeal therefrom and even this Court it appears, has held against an appeal in the case of orders made under Order 9, Rule 13 of the Code, which are not very dissimilar (see Baldeodas Lohia v. S'bubchurndas Goenka, 30 CWN 104: (AIR 1926 Cal 327).

21. I can find no good reason to differ from the view taken in the case of ILR 49 Cal. 616: (AIR 1922 Cal 407) that no appeal lies from an order restoring a suit dismissed for default. Such an order as it has been pointed out decides nothing as to the merits of the questions in controversy between the parties but merely reopens the controversy. An order refusing to set aside a decree on the other hand confirms the decision made by the decree and it is appealable because it sets the seal of finality on matters which the decree decided. The distinction made in favour of orders refusing to set aside a decree has been criticised on the ground that an order setting aside a decree also disturbs a decision affecting the merits of the controversy between the parties. This criticism does not appear to me to be correct, because although the decision embodied in the decree is undoubtedly disturbed in such a case and although the party in whose favour the decree operated is undoubtedly deprived of a valuabte right, nothing is in fact decided, because although the controversy is reopened the same decree may again be made. That the dismissal is set aside and the suit restored does not mean that the suit is decreed or any thing is decided. It seems to me to be entirely correct to say that such an order, i.e., an order setting aside a decree and restoring the suit, is not a judgment and therefore not appealable.

22. It may, however, be said, although it was not so contended at the Bar, that the decision in ILR 49 Cal 616: (AIR 1922 Call 407) cannot govern the present case, because there was no dismissal for default, but a decision on the evidence, as. I have found. The decision, it may be said, would apply only to an order properly made under Order 9, Rule 9, but not to an order where the Judge wrongly purports to proceed under that rule, although the decree, being a decree on the merits, it could have no application. I concede that the decision would not strictly apply, because we cannot find a decree to be a decreei on the evidence and thus exclude the application of Order 9, Rule 9 to an order setting aside the decreei and, at the same time, treat that very order as an order made under Rule 9 of Order 9 for the purpose of excluding an appeal. Yet, I think the principle of the decision in ILR 49 Cal. 616: (AIR 1922 Cal 407) clearly applies to the present case. The reason why an order made under Rule 9 of Order 9 is not appealable is that it is not a judgment and the reason why it is not a judgment is that it merely sets aside the decree passed and restores the suit, but decides nothing. The order in the present case, though it cannot be said to be an order under Rule 9 Order 9, is yet an order merely setting aside the decree and restoring the suit for further hearing. This order also decides nothing and therefore the principle which bars an appeal from an order made under Rule 9 of Order 9 applies equally to this order and equally bars an appeal. I am accordingly of the opinion that the respondent's contention that no appeal lies from the order of G.K. Mitter J. must be upheld and I may add that although I have held in the respondent's favour on the correctness of the learned Judge's order, I do not feel any particular regret in coming to the conclusion that no appeal lies, because all that has been given to the respondent is a chance to prove its case and the appellant has been weel compensated by costs.

23. There remains only one other matter on which I feel constrained to make some comment. After holding that the fault for the Plaintiffs non-appearance lay with its lawyers, the learned Judge has made the following observation:

'I think it fit to express my view that Counsel for the Plaintiff should have made arrangements, so that one of them at least could have appeared at the hearing when it was resumed and the absence ot boh not only amounted to discourtesy to the Court but breach of duty to the client'.

24. I have no doubt that strong as these words are, the learned Counsel affected by them will) themselves acknowledge their justice. When a client engages a learned Counsel on a proper fee he has a right to expect that he will appear for him at the hearing of the cause, unless he returns the brief in good time and when he goes further and takes the precaution of engaging two learned Counsel, he is not reasonably treated if both ot them fail him when their presence is required. To put it bluntly, it is not professionally correct that a client should be so treated. It is interesting to recall in this connection the observations of the Bombay High Court on this subject in the case of ILR 33 Bom. 475 to which I have already referred Scot C.J., with whom Bachelor J. agreed, reminded the Bar that the rule of allowing the costs of two Counsel! on each side in taxation was introduced for the express purpose of obviating dislocation of business which might result from cases being called on at the same time in two or more courts in which the same Counsel was engaged. On the part of the Bar this rule was supplemented by an unwritten mile that one Or other of the two Counsel must return his brief in good time if there was a chance of neither being able to attend when the case was called on or make arrangements tor some other Counsel to attend till he could come in. This obligation of the Bar was expected to bet honoured, but if it was not. no justification for allowing the fees of two Counsel could remain. I do not wish to add any further comment of my own to what was tersely and forcibly said and would content myself with expressing die hope that what happened in the. present case will not be allowed by the Bar of this Court to happen again.

25. For the reasons given earlier, I hold that the present appeal is not maintainable and must therefore fail. It is accordingly dismissed, but as our finding on the merits of the case, is in the appellant's favour, there will be no order for costs.

S.C. Lahiri, J.

26. I agree.


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