P Arjun vs P Subbartanamma
2022 Latest Caselaw 1282 AP

           THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


               Civil Revision Petition No.28 of 2019

ORDER:

The unsuccessful appellant-plaintiff filed this revision petition,

under Article 227 of the Constitution of India, assailing the decree and

order, dated 11.10.2018, of the learned V Additional District Judge,

Tirupati, passed in CMA.No.26 of 2016.

By the said order, the learned Additional District Judge while

dismissing the said civil miscellaneous appeal filed by the appellant-

plaintiff confirmed the order dated 10.03.2016 of the learned Principal

Senior Civil Judge, Tirupati, passed in IA.No.764 of 2011 in OS.No.239

of 2008.

IA.No.764 of 2011 was filed by the plaintiff under Order IX Rule

9 read with Section 151 of the Code of Civil Procedure, 1908, ('the

Code') requesting to set aside the dismissal order of the suit, dated

13.04.2011, and to restore the suit to file.

2. Heard Ms. S.Pranati, learned counsel appearing for the

petitioner/plaintiff and Ms. N.Anula, learned counsel appearing for the

respondent/defendant.

3. The background facts leading to filing of this revision are that the

plaintiff filed the suit O.S.No.213 of 2008 for specific performance of

an agreement of sale, dated 09.05.2005, against the defendant.

When the suit was coming up for trial, after the issues were framed,

the suit came to be dismissed for default on 13.04.2011. Thereafter,

the plaintiff filed I.A.No.764 of 2011 under Order IX Rule 9 of the Code

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to set aside the order of dismissal, dated 13.04.2011, and to restore

the suit to its file. The respondent/defendant resisted the application.

The trial Court dismissed the petition of the plaintiff, by order dated

10.03.2016. Aggrieved thereof, the plaintiff preferred C.M.A.No.26 of

2016. As stated supra, the said CMA was dismissed. Hence, the

plaintiff preferred this revision.

4. The parties shall hereinafter be referred to as the plaintiff and

the defendant for convenience and clarity.

5. The contention of the plaintiff in this petition, in brief, is this:

The trial in the suit commenced and was posted as a last chance

to 13.04.2011 on which day, the plaintiff's counsel reported not ready.

The trial Court dismissed the suit for default. Immediately thereafter,

the plaintiff filed I.A.No.764 of 2011, along with chief affidavit, seeking

restoration of the suit. The petitioner is doing business in electrical

goods under the name and style 'Arjun Electricals' at Rayalacheruvu

Road, Tirupati. He went to Delhi for purchase of material. Hence, he

could not contract his advocate to proceed with the trial. Non

appearance on 13.04.2011 was neither willful nor wanton.

The defendant filed counter stating that there was no

representation on 13.04.2011. The petitioner never attended the

Court since 2008 as he is benami of one V. Subbanna of Avilala villave,

Tirupati Rural Mandal. Thus, he has no interest in prosecution of the

suit. Another petition to appoint a Commissioner to record his

evidence was filed showing his attitude. He is aged about 43 years.

His shop is at a distance of two furlongs from the Court. There are no

bona fides. The petition is liable to be dismissed.

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6. At the hearing before the trial Court, no oral or documentary

evidence was marked.

7. According to the petitioner, the Court below heard the

submissions of the plaintiff's side and posted the matter for hearing

the defendant, as the defendant did not make her submissions and

taking adjournments continuously costs were imposed twice;

thereafter, on 05.02.2016, the defendant was heard and finally on

10.03.2016, the petition came to be dismissed; the trial Court without

appreciating the facts and circumstances of the case dismissed the

petition. Hence, the aggrieved plaintiff filed the Civil Miscellaneous

Appeal in C.M.A.No.26 of 2016.

8. At the hearing learned counsel for the plaintiff, while reiterating

the case of the plaintiff, inter alia submitted in the grounds of revision

that the Court below ought to have seen that the trial Court kept the

application pending for five years before dismissing the same and that

the plaintiff proved his bona fides to prosecute the suit by filing chief

affidavit along with restoration petition. Further, the Court below

ought to have seen that it is unnatural to retain receipts and tickets;

ought to have appreciated the inability of the petitioner to attend Court

and seen that the petitioner approached Court within limitation and

there are plethora of judgments holding that Courts should not adopt

pedantic and hyper technical approach and allow parties to contest the

case on merits.

9. Per contra, learned counsel for the defendant supported the

order impugned in the revision.

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10. While dealing with petition under Order IX Rule 9 of the Code,

what is to be seen is whether the petitioner has shown sufficient cause

for non appearance on the day when the matter was called. According

to the petitioner, as he was engaged in business and had been to

several places, he could not attend the Court and he could not contact

his counsel to proceed with the trial. The Court below categorically

found that the petitioner failed to mention the dates as to when he left

for that place, nor could he file any proof in support of the reasons

stated for his absence. However, the revision petitioner submits that

while examining 'sufficient cause', previous negligence may not have

any bearing and a party cannot be penalized for his previous absence

and what is to be examined at that stage is whether the petitioner was

prevented by any reasonable cause from attending the Court on that

particular day. It is further contended that a lenient approach must be

adopted in dealing with petition to restore suit to decide the matter in

dispute on merits, rather declining to do so on technical grounds and

that if necessary some costs can be awarded to the other party, in the

absence of any mala fides on the part of the petitioner.

11. In this regard, the revision petitioner placed reliance on the

decision of the Supreme Court in G.P. Srivastava v. R.K. Raizada

and others1, wherein, at paragraph No.7, it was held as follows:

"Under Order 9 Rule 13 CPC, an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless "sufficient cause" is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree.

(2000) 3 Supreme Court Cases 54

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The words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalized for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercise in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits."

12. The same decision has been followed by this Court in

C.R.P.No.4564 of 2018, dated 21.12.2018 and by the High Court of

Karnataka in V.Narayanaswamy v. Smt. Doddavenkatamma and

others2. There is no controversy about the proposition.

13. The revision petitioner further placed reliance on the decision of

the Supreme Court in Kamla Bai v. Harishankar Arora3, wherein for

non-appearance for one day, the trial Court dismissed the suit and

refused to restore the suit, however, the Supreme Court allowed the

petition under Order IX Rule 9 of the Code. The facts and

circumstances in that case are not clear from order. Since each case

ILR 2006 KAR 983

(2010) 15 Supreme Court Cases 454

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is to be examined in the light of its own facts and circumstances, the

decision may not be of much help to the revision petitioner.

14. On the other hand, learned counsel for the respondent placed

reliance on the decision of High Court of Andhra Pradesh in

T.Bhanumathi v. R.Hanumantha Rao (died) and others4, wherein

it was held that it is settled law that when once the lower Court found

that the cause for the absence of the petitioner-plaintiff has not been

established, the Court has no jurisdiction to allow the application

overriding the express provision in the Code of Civil Procedure, placing

reliance on the earlier decisions of the same Court.

15. Even in the case of G.P. Srivastava (1 supra), the Supreme

Court observed that a party cannot be penalized for his previous

negligence which had been overlooked and thereby condoned earlier

and in such cases, when the party approaches the Court immediately

within the statutory limitation, the discretion is normally exercised in

his favour, provided the absence was not mala fide or intentional. The

conduct of the party on the previous occasions gains significance in

culling out the intention of the party or existence of any bona fides or

mala fides. Thus, it is not an absolute rule that the absence on the

previous occasions can be completely overlooked and it is only the day

when the impugned order was passed, the reasons for absence shall

be examined. If the reason for the absence on the day of passing the

impugned order is totally separate from the reasons for absence in the

past, it may be independently examined. But, if the reasons are of the

same nature in the past, and on the relevant day, the facts and

1996 (1) ALT 52

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circumstances may have to be considered as a whole for examining

sufficient cause.

16. In the present case, for about fifteen (15) adjournments, the

plaintiff failed to appear. Moreover, the petitioner does not show

diligence to get the matter expeditiously disposed of, but on the other

hand, he seems to have filed another application to appoint a

Commissioner to record his cross-examination, which would in normal

course take further time. In an old suit of the year 2008, the

petitioner is not showing much interest in getting the dispute resolved.

The reason assigned for absence on the relevant day is that he had

been to Delhi on his occupational work. Except the bare statement,

nothing on record justifies truth in the statement. A mere statement

on oath cannot be treated as a gospel truth in the light of

circumstances in this case. If there is something more on record

throwing light on the veracity of the statement, the same can be

believed. In the present case, there is no such material available.

Just to settle a dispute through Court, lenient approach cannot be

stretched to the extent of accommodating even a party not diligent in

pursuing his remedy in the proceeding before a Court. Thus, there is

no irregularity or illegality committed by the trial Court in the

impugned order.

17. In the result, the Civil Revision Petition is dismissed.

There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

________________ B.S BHANUMATHI, J 14th March, 2022 RAR