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Foundation Overseas Ltd. Vs. Punjab National Bank Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 250 of 1976 (Suit No. 1733 of 1965)
Judge
Reported inAIR1977Cal428
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rules 9 and 13
AppellantFoundation Overseas Ltd.
RespondentPunjab National Bank Ltd. and anr.
Appellant AdvocateGoutam Chakraborty, Adv.
Respondent AdvocateR.L. Sinha, Adv.
DispositionAppeal allowed
Cases ReferredMorant v. Taylor
Excerpt:
- ramendra mohan datta, j.1. this appeal is from an order dated 25th june, 1976 passed by the court below recalling the order of dismissal of the suit upon condition that the plaintiff would deposit a sum of rs. 7,50,000 in cash with the registrar of this court and in default thereof, directing the plaintiff's application for restoration of the suit to stand dismissed for non-prosecution with no order as to costs.2. the operative part of the order reads as follows :--'it is ordered that upon the plaintiff depositing on or before the second day of july next the sum of rupees seven lacs and fifty thousand in cash only with the registrar of this court the order of dismissal of suit dated the eighth day of june instant be recalled and that this suit shall appear in the list on the fifth day of.....
Judgment:

Ramendra Mohan Datta, J.

1. This appeal is from an order dated 25th June, 1976 passed by the Court below recalling the order of dismissal of the suit upon condition that the plaintiff would deposit a sum of Rs. 7,50,000 in cash with the Registrar of this Court and in default thereof, directing the plaintiff's application for restoration of the suit to stand dismissed for non-prosecution with no order as to costs.

2. The operative part of the order reads as follows :--

'It is ordered that upon the plaintiff depositing on or before the second day of July next the sum of Rupees Seven Lacs and fifty thousand in cash only with the Registrar of this Court the order of dismissal of suit dated the Eighth day of June instant be recalled and that this suit shall appear in the list on the fifth day of July next. And it is further ordered that the interim order of the appeal court shall continue till one week from the date hereof and that the parties herein be at liberty to mention before this Court for having an early date fixed for hearing of this suit. And it is further ordered that in default of furnishing such security within the time as aforesaidthis application shall stand dismissed. And it is further ordered that in any event the plaintiff do pay to the parties appearing as aforesaid their respective costs of and incidental to this application to be taxed by the Taxing Officer of this Court. And it is further ordered that all parties concerned do act on a copy of the minutes of this order signed by an officer of this Court being served upon them.'

3. The suit herein has been filed on 23rd Sept, 1965, inter alia, for a decree declaring the bond dated 31st October, 1963 and its purported extensions void and for an order directing the said bond to be delivered up and cancelled. There are also prayers for ancillary relief by way of perpetual injunction in respect of the said bond. Incidentally, it may be mentioned that the said bond was executed in terms of a clause in the global tender which required the execution of such a bond. Accordingly, the said bond was furnished in favour of the State of Uttar Pradesh through the Punjab National Bank for the sum of Rs. 27,60,000. Thereafter, disputes arose by and between the plaintiff and the State of Uttar Pradesh in which the plaintiff contended that the bond should be delivered up and cancelled but the said defendant contended that the same should be enforced. Ultimately, the plaintiff filed this suit and prayed for its cancellation. The State of Uttar Pradesh was thereafter added as a party to this suit.

4. The plaintiff is a foreign company Incorporated in Canada having its registered office at No, 2200 Yonge Street, Toronto, Ontario in Canada.

5. The admitted position is that the suit, for the first time, appeared in the peremptory list on 6th Jan., 1976 and, thereafter, from day-to-day till 15th Jan., 1976 when by and with the consent of the parties the plaintiff got it adjourned till 22nd Jan., 1976. Thereafter the suit appeared in the list on the 21st Jan., 1976 but it did not appear in the list thereafter till 26th May, 1976. It was again adjourned till 7th June, 1976 but this time upon mentioning by and on behalf of the plaintiff without notice to the defendants, Thereupon, at the instance of the defendant No. 2 the suit was directed to appear on 1st June, 1976 in the list marked as 'to be mentioned'. On 1st June, 1976 all the parties appeared and in their presence it was directed that the suit was to appear on 7th June, 1076. On 7thJune, 1976 the suit was called on when prayer for adjournment was made on behalf of the plaintiff but the same was refused. Thereupon pleadings were placed but ultimately it was passed over for the day with direction that it was to appear in the list on the next day at the top of the list. On the next day i.e. on 8th June, 1976 the suit was called on and the counsel for the plaintiff again prayed for adjournment which was refused and, thereafter, at the prayer of the plaintiff's counsel for leave to retire such leave was granted and counsel retired. Thereafter, the suit was dismissed for non-prosecution with no order as to costs.

6. Immediately thereafter on the next day i.e. on 9th June, 1976 an application was made on behalf of the plaintiff for recalling and for setting aside the order of dismissal of the suit. An ad interim order for stay of the order dated 8th June, 1976 was prayed for but the same was refused. The notice of motion was made returnable on 14th June, 1976. On the returnable date viz., on 14th June, 1976 on behalf of the plaintiff the prayer for injunction and for ad interim stay of the order was renewed but the same was again refused. Directions were given for filing of affidavits.

7. Thereafter, on 16th June, 1976 the plaintiff preferred an appeal against the order for dismissal dated 8th June, 1976, The appeal was admitted and on 18th June, 1976 an ad interim order staying the operation of the order dated 8th June, 1976 was granted by the appeal Court till the disposal of the application for restoration pending before the trial Court.

8. The plaintiff's case in the petition for restoration is that Messrs. Orr, Dig-nam & Co., the solicitors for the plaintiff wrote to the plaintiff at its address as given in the plaint at Toronto, in Canada but the said intimation did not reach the plaintiff and it came back un-served. The envelope containing the intimation was produced in Court which showed the postal registration date as on 4th February, 1976. It is contended that there was a change in the address of the plaintiff and as such the solicitors could not get in touch with the client in spite of efforts. Having failed to come in touch with the client on 5th June, 1976 the solicitors sent a cable to Mr. Silver-eton at London so that Mr. Silverston could contact the plaintiff in Canada and intimate them about the hearing of the suit In the petition it is alleged that inthe forenoon of 8th June, 1976 Messrs. Orr, Dignam & Co, received a telex message from the plaintiff in reply to the request made to the plaintiff by Mr, Sil-verston from London. In the said telex message the plaintiff reiterated the stand taken by Mr. Silverston .and requested Messrs. Orr, Dignam & Co. to obtain a short adjournment if possible. The said telex message was handed over to Court and it was also intimated to Court that there was a telephonic conversation between Mr. Silverston and Mr. P,N. Basu of the solicitors' firm. In spite of the . aforesaid the learned trial Judge refused the adjournment and dismissed the suit.

9. As stated above, when the application for restoration of the suit was moved the learned Judge made the aforesaid conditional order.

10. On behalf of the plaintiff it is contended that in an application under Order 9, Rule 9 of the Civil P. C. there is no scope for putting the plaintiff on terms to the effect that the plaintiff would be directed to deposit any money in court or to furnish security to the satisfaction of the Registrar as a condition precedent to the restoration of the suit. It is contended that if the learned Judge should so think fit the learned Judge could have asked the plaintiff to deposit the amount by way of costs or in the nature of costs. That would have been in compliance with the provision of Order 9, Rule 9 of the Code.

11. Order 9, Rule 9 of the Civil P. C. provides as follows :--

'(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 the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.'

12. It would appear from the above that broadly speaking the provision of O, 9, Rule 9 has two limbs; the first limb gives a right to the plaintiff, whose suit has been dismissed to make the application for restoration of the suit. In doing. so it is an obligation on his part to satisfy the court that there was suffici-ent cause for his non-appearance in Court when the suit was called on for hearing. Once he can satisfy the Court, he is entitled to an order setting aside the dismissal but upon such, terms as to costs or otherwise as the Court might think fit to impose upon him depending upon the facts and circumstances of each case. The second limb provides for the power given to Court to make the conditional order setting aside the dismissal when the Court is satisfied that sufficient cause has been made out for the non-appearance of the plaintiff, in making such an order the Court has been vested with the discretion to decide what costs, if any, which would be imposed as a term to set aside such dismissal. Only this part of the order is discretionary. Otherwise when the Court is satisfied about the sufficient cause being made out for his non-appearance the Court is bound to make the order for setting aside the dismissal.

13. Another question arises as to whether in making an order under Order 9, Rule 9 of the Civil P. C. it is competent for the Court to make an order directing the plaintiff to deposit any amount as a condition precedent for setting aside the order of dismissal. The point is worth considering because when such an order for deposit of any amount would be made as a condition precedent to the setting aside of the dismissal of the suit then the question may yet arise as to for whose benefit such deposit would be made, or, in other words, on what principle such a deposit would be ordered. It is to be appreciated that if the plaintiff would so deposit the amount the same would remain in the custody of the Court to the credit of the plaintiff's account until the Court would direct the return thereof to the plaintiff. Nobody else can be interested in such an amount excepting the plaintiff. If the plaintiff would win in the suit then it goes to him. If the plaintiff would lose in the suit then also the same would have to be returned to the plaintiff.

14. It is contended that the plaintiff being a foreign company the said security money should be held as a security for costs. To that the answer is that for that purpose the provision of Order XXV of the Code would be attracted and an order would have to be made under the said provision after the requirements contained therein would be satisfied; and the Court in making such an order would also be required to record its reasons asprovided thereunder. In short there are formalities attached to the making of such an order for security for costs. Such formalities had neither been complied with nor any such requirements were present before this Court. Accordingly, such a consideration could not have arisen in making the order herein. Moreover, even though such a huge amount has been directed to be deposited in Court yet no judgment has been delivered to indicate for what purpose the said amount was so directed to be deposited. It has yet to be considered as to what would happen to the said amount when the same would be deposited? What purpose would be served by making such an order for security?

15. It is contended that the expression 'upon such terms as to costs or otherwise as it thinks fit' as appearing under Order 9, Rule 9 would contemplate that the Court's powers in making the order are not limited to costs only, in imposing the terms. The Court has power to order deposit of any amount if the Court so thinks fit by virtue of the expression 'or otherwise' appearing in the said rule.

16. In my opinion, it is not necessary for us to decide as to what the expression 'or otherwise' would mean or include under this rule, it would be sufficient tot us to restrict our consideration to the question whether the order for security, as has been ordered herein, by the learned Judge could be made within the scope of the expression 'or otherwise' in the said rule.

17. The expression 'or otherwise' has on various occasions since long time past been used by the legislature from time to time in connection with various statutes. In considering the very same expression 'or otherwise' in several decided cases the ejusdem generis rule has been applied and in several others the same principle has not been applied. Undoubtedly, the application or non-application of the ejusdem generis principle must depend on the construction of the language used in each of the particular statutes where the said expression has been used.

18. In my opinion, it cannot be said that any such decision would be an authority for the proposition with which we are concerned here. Nor is it necessary, as observed above, for us to go into that question. It is sufficient for us to construe the said expression for a very limited purpose viz., whether such anorder for the deposit of money is contemplated within the meaning of the said expression or otherwise, as provided in Order 9, Rule 9 of the Code. In order to decide this question it would be necessary to construe and compare the provision of Order 9, Rule 9 with that of Order 9, Rule 13 where in using similar expression some significant difference has been maintained. The said Order 9, Rule 13 reads as follows :---

''13. Application to be made to the Court which passed the decree. -- The rule requires an application by the defendant for an order to set aside the decree. The application under the rule ought to be made to the Court which passed the decree though the presiding Judge may be different. Where, however by reason of territorial re-adjustment, the Court itself becomes different the defendant is not debarred from applying to the Court which is seized of the matter.' In respect of this Rule also there are two Rmbs. The first limb gives a right to the defendant to apply for an order to set aside the ex parte decree. Under this Rule he has to satisfy the Court either that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. If he can so satisfy the Court then he is entitled to an order for setting aside the said ex parte decree but upon condition as to be imposed by the Court. The second limb provides for the Court's power to set aside the decree as against the defendant 'upon such terms as to costs, payment into Court or otherwise as it thinks fit'. As regards the imposition of the terms, this part of the order is discretionary. The Court has to decide by using its discretion as to what would be the terms which should be imposed upon the defendant in setting aside the said ex parte decree It is interesting to note that a significant; difference in the language and expression has been used in respect of the imposi-tion of the terms under this Rule. Here not only the terms as to costs are for the Court's consideration tout the question of 'payment into Court' has also to be taken into consideration. The difference in the language, in our opinion, is quite significant in respect of the two Rules being Rule 9 and Rule 13. A different consideration would arise when the defendant IK in default. Even though he satisfies the Court either that the summons was not duly served or that he was prevented by any sufficient cause when the suit was called on for hearing, the Court, under suitablecircumstances, is still empowered to consider the question of payment into Court and direct him to do so as has been specifically provided for under Rule 13 because that amount when so deposited might go to help the plaintiff in realising his dues as and when he would obtain the decree against the defendant.

19. As stated above, different considerations arise when it involves the defendant in the suit. If the Court would find that the defence as made out is illusory and the plaintiff is most likely to succeed in the suit but the defendant is trying to delay the matter by applying for restoration of the suit after setting aside the ex parte decree, say for some technical defect in effecting the service, the Court can very well direct the defendant to deposit some amount by way of security in order that the plaintiff might not suffer prejudice. Ultimately when the plaintiff succeeds in the suit and gets a decree at a later point of time he can look to the said security in realising his decretal dues.

20. In my opinion, even though the expression 'or otherwise' has also been used in Rule 13 yet the legislature thought It necessary to expressly add the words 'payment into Court' along with the expression 'or otherwise' in order to signify that this is a special consideration which attaches in the case of Rule 13 and, accordingly, in view of the absence of the expression 'payment into Court' in Rule 9 it would surely be legitimate to hold that the legislature intended that the use of such a term viz., 'payment into Court'' is not called for in respect of the provision which empowers the plaintiff to apply for restoration of the suit when it is dismissed for default of ap-jpearance. In Maxwell on The Interpretation of Statutes, Twelfth Edition, at page 282 it is stated 'From the general presumption that the same expression is presumed to be used in the same sense throughout an Act or a series of cognate Acts, there follows the further presumption that a change of wording denotes a change in meaning.' That being the position, we must hold that the expression 'or otherwise' in Rule 9 cannot include any term as to payment into Court as has been directed by the learned trial Judge in this case.

21. I set out herein below the following cases which were placed before us for the consideration of the expression 'or otherwise' in different statutes. In some of these cases, the principle ofejusdem generis rule has been applied and in some others it has not been applied.

22. Among statutes where the said expression 'or otherwise' has been used and where the Courts- have applied the principles of ejusdem generis rule, some relate to fiscal statutes and some others relate to penal statutes as well. See Ko-chuni v. States of Madras & Kerala, : [1960]3SCR887 ; M. Narayanan v. State of Kerala, : (1963)IILLJ660SC ; George v. Controller of Estate Duty, Mysore, : [1967]63ITR497(SC) ; Maxwell on The Interpretation of Statutes, Twelfth Edition at p. 298; Attorney General v. Seccombe. (1911) 2 KB 688 which was relied on by the Supreme Court in : [1967]63ITR497(SC) .

23. Mr. Sinha, on the other hand, has relied on the following decisions where the ejusdem generis rule has not been applied in construing the expression 'or otherwise' in some of the statutes. See Baij Nath Prasad v. State of U P., : AIR1968All288 ; National Association of Local Government Officers v. Bol-ton Corporation L. R. 1943 AC 166 at p. 174; Morant v. Taylor, (1876) 1 Ex. D 188. As observed above, it is not necessary for us to go into details and decide that question in this application except only for the very limited purpose, as aforesaid.

24. Mr. Sinha has next argued that the appeal is premature because until the default clause became operative it could not be said that the conditional order was an order rejecting the application The learned counsel contends that until the period for payment expires, the order would remain as an order allowing the application for restoration in which case no appeal would lie. In my opinion, such a contention cannot be accepted. The effect of a conditional order, such as is set out above, is that the order amounts to rejection of the application and not in an order allowing the application and if that be the position it would become a judgment within the meaning of Clause 15 of the Letters Patent of 18fi5 and on that basis it would become appealable.

25. A Bench of this Court in the case of Chattu Lal Misser v. Marwari Commercial Bank Ltd., 30 Cal WN 298 considered the effect of an order of a similar nature and observed at p. 303 : (AIR 1926 Cal 668 at p. 670) as follows :--

'The effect of that order was that if the security was not given as directed adecree would be drawn up as a matter of course without any further application to the learned Judge.

In my opinion, it was a judgment finally deciding that the defendant was not to be allowed tc defend the suit unless he complied with the conditions contained in the order.''

26. In another Bench decision of this Court in the case of Mitra Mukherjee and Co. v Ajit Kumar Sarkar, AIR 1963 Cal 9 the effect of such a conditional order had been considered. It was observed at page 11 as follows :--

'The result, of the order is that if security is not furnished a decree against the defendants would be drawn up and as a matter of fact a decree has been drawn up and the suit finally disposed of It is absurd to suggest that such an order is not appeala'ble or that there is any reason to hold that the appeal from the order directing security to be furnished is not maintainable. The effect of non-compliance with the order, as I have already pointed out, is to deprive the defendants of a valuable right, namely, to defend the suit and clearly in such a case it cannot be said that the order directing security, in default whereof a decree was to be drawn up against the defendants is not appealable.'

27. With respect I entirely agree with the above views as expressed in the above decisions and. accordingly, hold that the appeal is not premature and the order appealed from is a judgment within the meaning of Clause 15 of the Letters Patent. That being the position, it is not necessary for me to consider whether the order appealed from is without jurisdiction on the ground that such an order directing security to be furnished by the plaintiff could not be made under Order 9, Rule 9 of the Civil P. C. and that, under such circumstances, it is always appealable whenever the order is passed without jurisdiction.

28. It must be held that the learned trial Judge was satisfied that sufficient grounds had been made out for recalling the order for dismissal and for restoring the suit; and that being the position the learned Judge could not have asked the plaintiff to furnish security for the restoration of its suit. The position might have been different if security would have been ordered by way of costs but the learned Judge has not given any such indication in making the said order for security.

29. Lastly, Mr. Sinha contends that since the order of the learned Judge has gone in his client's favour he should be allowed to uphold the same on the ground that in the facts and circumstances of this case no sufficient grounds were made out whereby the learned Judge could be satisfied that there was sufficient cause for the plaintiff's non-appearance when the suit was called on for hearing. According to Mr. Sinha the order can be supported without filing a cross-objection by his client. In my opinion, such a contention of Mr. Sinha is fallacious and cannot be accepted. Mr. Sinha contends that he is relying on the conclusion arrived at by the learned Judge. In my opinion, the learned Judge could have come to his conclusion and made the conditional order only after he had satisfied himself about f.hp sufficient cause being made out by the plaintiff for his non-appearance. It was only under such circumstances that the learned Judge could have made such a conditional order. If Mr. Sinha would be allowed to challenge the finding of the learned Judge regarding his satisfaction about the plaintiff's making out the sufficient cause for non-appearance then Mr. Sinha would in effect be permitted to challenge the conclusion and not to support it; because, in the event of Mr. Stnha's contention being upheld then the conclusion arrived at by the learned Judge could not remain effective. If Mr. Sinha's contention is right that the learned Judge was wrong in arriving at his satisfaction that there was sufficient cause for the plaintiff's non-appearance then in that event the whole order will necessarily be different because Mr. Sinha's attack would go to demolish the entire order. That being so, in my opinion, Mr Sinha cannot be permitted to reopen the question of the Court's satisfaction as to the existence of sufficient cause. I, accordingly, reject the contention of Mr. Sinha on this point.

30. That being the position, the appeal must be and is hereby allowed. The order of dismissal of the suit is set aside and the suit is restored to the list. Let the suit be mentioned before the trial Court for fixing an early date and the matter be proceeded with thereafter.

31. In any event, the plaintiff-appellant must bear and pay the costs to the defendant-respondent in respect of the application for restoration and for costs thrown away, if any, by reason of the dismissal for default of appearance beingset aside. There will be no order as to costs of this appeal.

Hazra, J.

32. I agree with my Lord that his appeal should be allowed. As some interesting points have been urged in this appeal I wish to express my views also.

33. It is not necessary to state the facts as my learned brother has dealt with the same in his judgment I will only say that the appellant is a foreign company incorporated in Canada. The appellant company as plaintiff instituted a suit in this Court on Sept. 23. 1973 claiming, inter alia, for a decree adjudging a bond dated Oct. 31, 1963 and the extensions of the bond as void and an order directing the bond to be delivered up and cancelled There was also a prayer for perpetual injunction restraining the defendant No. 1, Punjab National Bank Limited and its agents and servants from giving effect to the bond or from making any payment thereunder to the State of Uttar Pradesh.

34. After filing the suit the plaintiff obtained an interim order restraining the State of Uttar Pradesh from giving effect to the bond or from making any payment under it till the disposal of the suit. After the interim order the State of Uttar Pradesh was added as a party to the suit. The plaint was amended to include relief against the second defendant.

35. The suit appeared in the peremptory list for hearing on several days Several adjournments were taken. Ultimately, the suit appeared in the peremp-tory list on June 7, 1976. On June 8, 1976 the suit was called on for hearing. As the witnesses from Canada were not available the learned counsel for the plaintiff wanted leave of the Court to retire. Such leave was granted and the suit was dismissed on June 8. 1976 by the learned Judge. On June 9, 1976. a petition was filed by the constituted attorney of the plaintiff at Calcutta for setting aside or recalling the order of dismissal of the suit on June 8, 1976. In the petition prayer was also made for adjournment of the suit for a period of two months or for such other time as this Court may deem fit and proper in order to enable the petitioner to get its witnesses from Canada or to take out an application for issue of commission. Prayer was also made for injunction restraining the defendant, its agents and servants from giving effect to the bond dated October 31, 1963 or acting in terms there-of or in accordance therewith. Prayer for stay of operation of the order dated June 8, 1976 was also made.

36. In the petition it is stated, inter alia, that on June 8, 1976 M/s. Orr, Dig-nam & Co. received a Telex message from the petitioner in reply to the request made to the petitioner by Mr. Silverston, a senior partner of M/s. Orr, Dignam & Co. who was then in U. K. A copy of the Telex message is annexed to the petition and the same is set out hereunder.

'We have been informed this morning by Mr. Silvers ton from London England about rourt action scheduled tomorrow Re: Yamuna Hydel Projects since we have received no prior notification we ask that the action be deferred until we receive legal advice to prepare Mr. (50) Silverston is contacting you directly with the same instructions we will wait for further advice from you O. G. Opier, Vice-President, Foundation Overseas Ltd. L Yonge Street Toronto Canada Tel, 416 361 4836 416 361 4836 .''

The case of the petitioner is that there was and is sufficient cause for the petitioner for not being able to appear at the time of hearing and the said order dated June 8, 1976 should be set aside or recalled. In that application the learned Judge, on June 25, 1976, made the following order :

'It is ordered that upon the plaintiff depositing on or before the second day of July next the sum of Rupees Seven Lacs and fifty thousand in cash only with the Registrar of this Court the order of dismissal of suit dated the Eighth day of June instant be recalled and that this suit shall appear in the list on the fifth day of July next and it is further ordered that the interim order of the appeal court shall continue till one week from the date hereof and that the parties herein be at liberty to mention before this Court for having an early date fixed for hearing of this Court and it is further ordered that in default of furnishing such security within the time as aforesaid this application shall stand dismissed. And it is further ordered that in any event the plaintiff do pay to the parties appearing as aforesaid their respective costs of and incidental to this application to be taxed by the Taxing Officer of this Court. And it is further ordered that all parties concerned do act, on a copy of the minutes of this order signed by an officer of this Court being served upon them.'

37. Against this order dated June 25, 1976 this appeal has been preferred.

38. The first question for consideration in this appeal is whether the order dated June 25, 1976 is an appealable order.

39. Mr. Goutam Chakraborty for the appellant has submitted that this is a conditional order and as such it is appealable. He has referred to decisions in Mitra, Mukherjee and Co. v. Ajit Kurnar Sarkar, AIR 1963 Cai 9 and Narayan Putapa v. Vaikunt Subaya, AIR 1927 Bom 1, He has also submitted that the order of the learned Judge is a judgment within the meaning of Clause 15 of the Letters Patent, because, the effect of the order is that it is a final order and as such it is appealable. He has referred to the Full Bench decision of this Court in Nurmul Hoda v. Amir Hasan, : AIR1972Cal449 . He further contends that the order of the learned Judge was without jurisdiction and as such void, because in an application to set aside the order of dismissal of the suit under Order IX. Rule 9 of the Civil P. C. the learned Judge passed an order to deposit in cash the sum of Rs. 7,50,000 with the Registrar of this Court on or before July 2, 1976. The order so far as it provided that in default of depositing of such security the application shall stand dismissed is also without jurisdiction, because, the learned Judge was not competent to make an order for furnishing of security in an application for restoration of the suit under Order IX, Rule 9 of the Civil P. C.

40. Mr. R. L. Sinha for the respondent, the State of Utter Pradesh, on the other hand, has contended that under Order IX, Rule 9 of the Civil P. C, the Court can make an order setting aside iks dismissal upon such terms as to costs or otherwise as it thinks fit The words 'or otherwise', according to Mr. Sinha, im--ply that the Court has power to pass any order other than an order for costs and so the learned Judge was competent to make the order granting security. He has also contended that there was no 'sufficient cause' for non-appearance of the plaintiff when the suit was called on for hearing,

41. An order under Order IX, Rule 9 of the Civil P. C. rejecting an application for an order to set aside the dismissal of a suit is appealable under Order XLIII-C of the Civil P. C An order made by e Judge of the Original Side of the Court rejecting an application for restorationis also a judgment within the meaning of Clause 15 of the Letters Patent and as such it is appealable. The order of the learned Judge in the instant case is a conditional order. The effect of the conditional order is that if the sum of Rs. 7,50,000 is not deposited in cash in Court within seven days the application shall stand dismissed. The said sum of Rs. 7,50,000 is stated in the order as 'such security'. Thus the effect of non-compliance of the condition mentioned in the order is that the application for restoration of the suit is rejected unless the security to the extent of Rs. 7,50,000 is deposited in Court within the time mentioned in the order. The further effect of non-compliance of the condition is to deprive the plaintiff of a valuable right, viz., right to proceed with the suit. Therefore, in my view, the order is a judgment within the meaning of Ci. 15 of the Letters Patent. The order finally determines tht rights of the parties by dismissing the suit, unless the condition is complied with, So, appeal lies against the order on the same principle as laid down in the case of Mitra, Mukherjee and Co. v. Ajit Kumar Sarkar. AIR 1963 Cal 9 and the case of Chattu Lal Misser v. Marwari Commercial Bank Ltd., 30 Cal WN 298 : (AIR 1926 Cal 668).

42. The other question raised before us is whether the learned Judge was competent to pass an order under Order IX, Rule 9 of the Civil P. C. imposing a condition that a sum of Rs. 7,50,000 must be deposited in Court by the plaintiff within seven days as security.

43. Order IX, Rule 9 of the Civil P. C. does not provide for payment of security. It does not even say that the Court can order payment or deposit of money hi Court by the plaintift. it only says that the Court can set aside the dismissal 'upon such terms as to costs or otherwise as it thinks fit'

44. The powei of the Court to make payment into Court which appears in Order IX, Rule 13 of the Civil P. C. is significantly absent in Order IX, Rule 9. Order IX, Rule 13 provides that the Court may set aside ex parte decree 'upon such terms as to costs, payment into Court or otherwise as it thinks fit'. Therefore, prima facie, the learned Judge was not competent to make an order for payment into Court or deposit the sum of Rs. 7,50,000 under Order IX, Rule 9 of the Code as terms for restoration of the suit of the plaintiff which was dismissed.

45. Reference may be made in this connection to the decision of the Supreme Court in the case of Official Trustee of West Bengal v. Sachindra Nath Chat-terjee, : [1969]3SCR92 . In that case Supreme Court laid down the law thus :

'Before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for.'

Here, question arises wherefrom the Court derived the authority or power to pass the order for furnishing security or payment into Court to the extent of Rs. 7.50,000?

46. On this point Mr. Sinha has argued that under Order XXV of the Civil P. C., the Court may, at any stage of the suit, of its own motion, order the plaintiff to give security for payment of costs likely to be incurred by the defendant. Did the Court make the order for security haying regard to Order XXV of the Code? Obviously, this is not so. Because under Order XXV of the Code if the Court makes an order suo motu for security to be furnished by the plaintiff for payment of the cost of the suit of the defendant the Court must record the reasons for such an order. In the instant case no judgment has been delivered. The order is not a speaking order. The learned Judge was dealing with an application under Order IX, Rule 9 of the Civil P. C. So, I am unable to accept the contention of Mr. Sinha on this point.

47. Mr. Sinha has also argued that the words 'or otherwise' in Order IX, Rule 13 of the Code give the Court power or authority to make the order for giving security to the extent the Court has done. According to him, the Court has power to make any order other than to order for payment of cost by reason of the words 'or otherwise' in Order IX, Rule 9.

48. Mr. Chakraborty on the other hand has argued that the words 'or otherwise' must be construed by applying 'ejusdem generis rule'. He has referred to several cases, viz., (1) Narayanan v. State of Kerala. : (1963)IILLJ660SC ; (2) Kochuni v. State of Madras, : [1960]3SCR887 ; (3) George Da Costa v. Controller of Estate Duty. : [1967]63ITR497(SC) and (4) Maxwell on the Interpretation of Statutes, 12th Edition pages 298 and 300.

49. Mr. R. L. Sinha, on the other hand, has submitted that 'Ejusdem Generis Rule' is not applicable Mr Sinha hasalso cited several cases; viz., (!) Baij Nath Prosad v. State of .U. P., : AIR1968All288 ; (2) National Association of Local Government Officers v. Bolton Corporation, 1943 AC 166 and (3) Morant v. Taylor, (1876) 1 Ex D 188 at p. 193.

50. Now, the question is what do the words 'or otherwise' mean in Order IX, Rule 13 of the Civil P. C. There is no case directly on the point. The cases cited by the learned counsel are all cases on different statutes and constructions of the words 'or otherwise' were made under entirely different context. So it is not necessary to discuss the cases.

51. I shall now turn to Order IX, Rule 9 of the Code and consider its applicability on the facts of the case before us. The words 'shall make an order setting aside the dismissal' in Order IX, Rule 9 indicate that the Court is bound to set aside the order of dismissal if the Court is satisfied that, there was sufficient cause for non-appearance of the plaintiff when the suit was called on for hearing The subsequent words 'upon such terms as to costs or otherwise as it thinks fit' give power to the Court to pass the order setting aside the order of dismissal on terms. The legislature has given a discretion to the Court as to the terms on which the order for setting aside shall be passed in the case before it. The Court may pass order on terms as to payment of cost or 'otherwise'. The meaning of the word 'otherwise', according to Oxford Advanced Learners' Dictionary of Current English is 'in another or different way'. The word 'otherwise' means according to Bleak's Law Dictionary, Fourth Edition page 1253 'in a different manner, in another way, or in other ways'. So. although there is a discretion to impose terms, such discretion is as to costs in one or other way. In the instant case, as the petitioner satisfied the Court that there was sufficient cause for setting aside the order of dismissal, the Court could impose terms as to costs or any amount as to costs in another or different way. On the facts of this case the defendant could not claim any amount olher than costs from the plaintiff The Court has not. said in the order that tbe Court is ordering such payment as costs. The Court could not impose a term for payment in Court of Rs. 7,50.000 in cash as costs or as security. Cost means either taxed cost or assessed cost. Such large amount cannot be either taxed or assessed cost. So. although there is great force in the contention of Mr. Chakra-borty it seems to me that it is not necessary to decide the question as to whether 'Ejusdem Generis Rule' will apply in construing the words 'or otherwise', because whether the rule applies or not, under the facts and circumstances of the case, there is no doubt in my mind that the learned Judge could not pass such order for deposit of the sum of Rupees 7,50,000 or for furnishing the said amount as security under Order IX, Rule 9. I am unable to accept the submission of Mr. Sinha on this point.

52. Mr. Sinha then argued that there was no sufficient cause. I do not agree. It is also difficult to follow how this argument can be made, If there was no sufficient cause then the learned Judge should have dismissed the petition for setting aside the order of dismissal. In that case question imposing any terms would not arise. But the learned Judge imposed terms as he was satisfied that there was sufficient cause for restoration of the suit. There is no reason for me to differ from the view of the learned Judge on the point that there was sufficient cause for non-appearance. In any event, I am of the same opinion. The telex dated June 8, 1976 and the cause title of the plaint indicate that the address of the plaintiff was changed. From the above fact one can reasonably infer that the letters of Orr, Dignam & Co. did not reach the plaintiff in time. But with regard to the exercise of discretion by the learned Judge with regard to the terms for setting aside the order of dismissal, it seems to me that the learned Judge failed to exercise his discretion judicially in accordance with the provisions of Order IX, Rule 9.

53. In the premises, I also agree with the order passed by my Lord in this appeal.


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