Prashant Vagaskar And Ors. vs Municipal Corporation Of Greater ...
2001 Latest Caselaw 837 Bom

JUDGMENT

V.C. Daga, J.

1. Heard learned counsel for the parties. Perused record and proceedings. This appeal is directed against a judgment and decree passed by the Bombay City Civil Court, Mumbai, on 30-8-2001, in L.C. Suit No. 6306/1984, whereby the suit has been dismissed under Order 15, Rule 1 of the Code of Civil Procedure ('C.P.C.' for short). The parties hereinafter, shall be referred to as arrayed in the original suit.

BACKGROUND FACTS

The facts necessary to appreciate rival contentions may be stated briefly :

2. The appellants/original plaintiffs, claiming to be the monthly tenants of respondent Nos. 2 and 3 (original defendant No. 2), in respect of the suit property, since prior to 1962, filed a suit on 31-8-1984 mainly against the defendant No. 1, challenging the notices issued under Section 351 of the Bombay Municipal Corporation Act, 1988 ('Act' for the sake of brevity), directing removal and/or demolition of unauthorised structures alleged to have been constructed by the plaintiffs.

In the aforesaid suit, plaintiffs were protected by an ad-interim order of injunction till the dismissal of suit on 30-8-2001. If one turns to the order sheets of the suit, it would be clear that during the period 5-12-2000 to 16-5-2001, almost on all occasions the suit was posted for issuing directions, but it was adjourned without any progress for want of time to the Presiding Judge to issue necessary directions. It appears that the suit was finally taken up for framing issues on 1-8-2001, without issuing any directions for which the suit was adjourned from time to time. On this date, trial court framed issues under Order 14, Rule 1 read with Order 15, Rule 3(1), Civil Procedure Code and adjourned it to 30-8-2001, for dismissal of the suit instead of adjourning it for further hearing under Sub-rule (2).

3. On the adjourned date the counsel for plaintiffs, along with plaintiff No. 2 were present in the Court. The learned counsel for the plaintiffs requested for adjournment on the ground that none of the plaintiffs except the plaintiff No. 2 were present and that the plaintiff No. 2 was not ready with the evidence, so as to proceed with the suit.

4. The learned counsel for the plaintiffs though present in above circumstances, did not take any steps to proceed with the suit. This attitude of the plaintiffs was treated as an attempt to protract suit in which ad-interim relief was operating in favour of the plaintiffs right from the year 1984. The trial Court also noticed that no document was filed along with plaint. Not a single document was produced on record during this long period of 16 years during which suit was pending. The trial Court also took into account the various dates when the plaintiffs and their counsel were absent. The Court below, finding that the plaintiffs were casual in proceeding with the suit and not ready to lead evidence, proceeded to dismiss the suit under Order 15, Rule 1 of the Civil Procedure Code. The suit came to be dismissed. It is against this order in the nature of decree, the plaintiffs have preferred this appeal under Section 96 of the Civil Procedure Code.

5. The learned counsel for the appellants, on being questioned as to what type of directions were contemplated and/or expected by the parties or what type of directions are normally issued by the trial Court when the suit is posted for direction. The learned counsel for the appellants informed me that there is a practice prevailing in Bombay City Civil Court to issue directions to the parties to complete discovery, inspection and/or exchange of documents and if necessary, to file affidavits in support of their respective documents. In order to establish this practice, certain order sheets have also been produced on record. This practice seems to be prevalent in the City Civil Court at Bombay. It is not necessary for the purpose of decision of ihis appeal to dwell upon the question : to what extent this practice has a support of procedural law.

THE ISSUES

6. The substantive question which needs consideration is : whether the plaintiffs were justified in not remaining present (except plaintiff No. 2) or ready with their evidence at the time when the suit was taken up for consideration. It is, no doubt, true that the plaintiff No. 2 atone was present along with advocate appearing for the plaintiffs. But the incidental question that also needs to be addressed is : whether mere physical presence of a litigant is sufficient for the purposes of prosecuting suit; wherein he is interested.

THE PROCEDURAL LAW

7. Before proceeding to answer the aforesaid questions, it is necessary to have a look at some of the provisions of the Code of Civil Procedure, 1908 (Civil Procedure Code), which deals with the trial of suits.

8. Let me now examine that Code; and first, I propose to turn to the body of the Code. Section 27 provides that:

"Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim". Section 30 gives the Court power to :

"(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid".

9. I now turn to the Rules in the First Schedule. It is relevant to note that the Rules draw a distinction between the first hearing and subsequent hearings, and that the first hearing can be either (a) for settlement of issues only, or (b) for final disposal of the suit.

First, there is Order 5, Rule 1 :

" ..... a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified."

This summons must state whether the hearing is to be for settlement of issues only or for final hearing (Rule 5). If it is for final hearing, then (Rule 8).

"It shall also direct the defendant to produce, 'on the day fixed for his appearance", all witnesses upon whose evidence he intends to rely in support of his case".

Then comes Order 8, Rule 1 which expressly speaks of 'the first hearing'. Order 9 is titled as 'Appearance of parties and consequence of non-appearance'.

10. The first hearing of the suit does not mean the day on which the witnesses were examined or a trial taken up. It means the day on which the Court goes into the pleadings in order to understand the contentions of the parties. In a suit, in which issues have to be framed, the day on which such issues are framed, is the first hearing of the suit inasmuch as on that day the Court looks into the pleadings with a view to understand the contentions of the parties and to find out whether parties are at issue or not at issue. This is made clear by the provisions of Order 10, Rule 1 under which, "Court shall, at the first hearing of the suit, ascertain from each parties or his pleader whether he admits or denies such allegations or facts as made in the plaint or written statement, if any, of the opposite party".

11. Now, as seen hereinabove, the first date of hearing is either for the settlement of issues or for final hearing. If it is only for settlement of issues, then the Court cannot pass an 'ex parts' decree on that date because of Order 15, Rule 3(1) which provides that can only be done when :

"the parties or their pleaders are present and none of them objects" On the other hand, if it is for final hearing, an 'ex parts' decree can be passed. If it is passed, Order 9, Rule 13 comes into play and before decree is set aside, the Court is required to make an order to set it aside.

12. As already found hereinabove, Order 9 deals with the 'appearance of parties and consequences of non-appearance'. Rule 8 thereof provides that where defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court may pass a decree against the defendant upon such admission and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. Rule 9 provides that where the suit is wholly or partly dismissed under Order 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 asfde the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

13. I turn next to the Chapter dealing with 'adjourned hearing'. This is dealt with in Order 17, Rule 1(1), which empowers the Court to adjourn the hearing and whenever it does so it must fix a day 'for the further hearing of the suit', except that once the hearing of the evidence has begun it must go on from day to day till all the witnesses in attendance have been examined unless the Court considers, for reasons to be recorded in writing, that a further adjournment is necessary. Then follows Rule 2 -

"Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, 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."

14. Now Rule 2 only applies when one or both of the parties do not appear 'on the day fixed' for the adjourned hearing. In that event, the Court is thrown back to Order 9 with the additional power to make 'such order as it thinks fit'. When it goes back to Order 9, it is again empowered to dismiss the suit by any one of the modes directed in that behalf by Order 9 or to make such other order as it thinks fit. Now, it is clear that these last words of the Rule confer a discretion, but it is a discretion which must be exercised judiciously. A judge, exercising such discretion may grant further adjournment, if the circumstances justify on merits, but he should have material before him to justify that course. If there is no evidence before him, he can exercise discretion to deal the case on merits.

15. At this juncture, it will also be useful to refer to the provisions of Order 17, Rule 3 so as to complete the chain of procedure to be followed while trying the suit. The difference in phraseology of Rule 2 and Rule 3 has been

discussed on a good many occasions by this Court and other High Courts. Rule 3 is not in terms confined to default of appearance as is Rule 2, though Rule 3 may be brought into operation in default of appearance. Rule 3 provides that where any party to a suit to whom time has been granted fails to produce his evidence, or, to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. That rule is directed to the failure by one of the parties to do an act for which he has been allowed lime, and on that failure the Court may proceed to decide the suit forthwith. But even under Rule 3 the Court must have material to enable it to exercise its proper discretion by deciding the case on merits.

16. Now, I go back to the provision of Order 15, which deal with disposal of a suit on the first hearing, which reads as follows :

Parties not at issue :

"Where, at the first hearing of the suit, it appears that the parties are not at issue upon any point of fact or law, the Court may, under this rule, at once pronounce judgment."

In order to understand the meaning of the word 'at issue', it is necessary to turn to the scheme of the provisions of Order 14 read with Order 15 of the Civil Procedure Code. Issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. The issues are of two kinds :-- (a) issues of fact, and (b) issues of law. (Order 14, Rule 1 of Civil Procedure Code). Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Court may frame issues from (a) allegations made by the parties, their agent or pleaders, (b) allegations in pleadings or in answer to interrogerance, (c) contents of documents produced by either parties (See Order 14, Rule 3 Civil Procedure Code).

17. When the pleadings are not exhaustive, the Court is at liberty to examine the parties so as to find out provisions of law and facts at which they are at variance. The function of the Court lies in ascertaining the real dispute between the parties from the pleadings i.e. plaint and written statement or by examining the parties and/or by hearing the counsel with respect to the proposition on which there is a dispute. Once the issues are determined, framed and settled, the area of dispute between the parties stands demarcated so as to enable the parties to lead evidence within the demarcated field. This demarcated field or area of dispute is necessary to find out whether parties are at issue or not. If there is no contention between the parties, no issues arise and therefore, the Court is not called upon to go into any dispute at all. Then it is said that parties arc not at issue.

18. Where the summons is issued for the settlement of issues only, the Court may proceed to hear and dispose of the case if the parties are ready and willing to proceed. If, however, one of the parties objects to the adoption of such a procedure, the Court has no jurisdiction to proceed to dispose of the case. The object of the Code in requiring a day to be fixed for the hearing of the case and all the evidence to be adduced on that day is that parties may thus be confronted

with each other and the whole evidence on either side be at one and the same time before the Court. The adjournment of a case under Sub-rule (2) does not amount to the granting of time for production of evidence under Order 17, Rule 3 and hence if the plaintiff does not appear on the adjourned date the Court cannot proceed under Order 17, Rule 3(2).

19. On the aforesaid canvass of procedure of law, let me examine the legality of the impugned judgment and decree passed by the trial Court.

APPLICATION OF PRINCIPLE TO THIS CASE

20. As already pointed out hereinabove, the suit was adjourned from time to time for issuing directions. On 1-8-2001, trial Court was pleased to frame issues in exercise of power under Order 14, Rule 1 read with Order 15, Rule 3(1) of Civil Procedure Code. The parties were found to be at issue. The area of dispute between the parties was demarcated by the trial Court.

21. On the backdrop of the order sheets referred to in para (2) supra, the possibility of plaintiffs expecting certain directions from the trial Court cannot be ruled out. It appears that the plaintiffs were under bona fide impression that directions might be issued by the Court trying the suit for discovery, inspection and production of documents etc. If this picture was given by the trial Court through its order sheets, then without issuing necessary directions, with respect to the discovery and production that too; when the plaintiffs were found to be not ready with their evidence, can it be said that the trial Court was justified in treating the mere physical presence of the litigant as appearance for the purposes of prosecuting the suit. This point has been elaborately dealt with by some of the High Courts in India like those in 'Manannisa v. Ramkalpa Gorain (1907) ILR 34 Cal 235, Sanshchandra v. Ahana Prasad, (1907) ILR 34 Cat 403 (F.B.), Lalji Sahu v. Lachmi Narain, AIR I9IS Palna 351. In all these cases, it has been uniformly held that appearance (mere presence) does not mean physical presence of the party concerned, but appearance must be purposeful for the purpose of prosecuting the case or suit pending in the Court. In other words, appearance/presence should be for the purposes of taking part in the proceeding and that it includes preparedness to cite evidence and/or to produce documents or to take any other step for disposal of the suit/case as may be considered necessary. Therefore, if a party to a suit for some reason or other is precluded from being ready to take part in the prosecution of the suit but somehow manages to come with a view that the case should be got adjourned for some other day, his appearance in such a circumstance will not amount to an appearance as contemplated under Order 17, Rule 2 of Civil Procedure Code. In this view of the matter, the appearance of the plaintiff on 30-8-2001 was no appearance for the purpose of the suit.

21-A. I may here refer to the view of the Full Bench of the Calcutta High Court in (1907) ILR 34 Cal. 403. In that case, it was unanimously held by all the Judges who constituted the Bench that:

"The term 'appearance' is nowhere defined in the Code and as pointed out by Benson, J. in Seeley V. Evans (1838-19 Wendell 459) has several significations the word must always be understood in reference to the particular subject matter to which it relates and the purpose or end to be answered by the appearance has an important bearing in determining

what is sufficient to constitute appearance in a particular case. It seems to me that having regard to the scope of Section 556 of the Civil Procedure Code and the object to be gained by the attendance or appearance of the appellant on the day fixed for the hearing of the appeal the mere appearance of the counsel to make ail application for adjournment ought not to be treated as appearance so as to oust the jurisdiction under Section 558 of the Civil Procedure Code, if proper cause is shown. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party. I do not feel much pressed by the reference made to the case in which evidence may have been taken and which has been partially argued."

The same view was also taken by the Patna High Court in AIR 1918 Pat 351.

Therein by a Division Bench of that High Court, it was observed that:

"A party may appear in two ways, either by person or by pleader. If he is not appearing in person, the mere fact that he is standing in Court does not amount to an appearance within the real meaning of the word."

FINDING

22. In this view of the law, therefore, mere fact that the plaintiff No. 2 was present in the Court at the time when the suit was called for dismissal on 30-8-2001, cannot, on the facts of this case, provide for any valid ground for holding that the plaintiffs were present in the Court and in spite of that, they defaulted in taking part in proceedings or were guilty of by-passing the Court. In the facts and circumstances, the plaintiffs were justified in praying for adjournment and, therefore, in my opinion, the Court below was wrong in refusing to grant adjournment, merely on the technical ground that one the plaintiffs was physically present in the Court and was not ready to proceed with the suit.

23. The Code of Civil Procedure has been designed to facilitate fair trial of the suits. It is not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of provisions that leaves no room for reasonable elasticity of interpretation should therefore be guarded against : (provided always that justice is done to 'bom' sides) least the very means designed for the furtherance of justice be used to frustrate it.

24. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. One cardinal principle to be observed in trials by a Court obviously is that a party has a right to appear and plead his cause on all occasions when that cause comes on for hearing. It follows that a party should not be deprived of that right and in fact the Court has no option to refuse that right, unless the Code of Civil Procedure deprives him of it.

25. The Court below should not have proceeded to dismiss the suit under Order 15, Rule 1 of the Civil Procedure Code. Order 15 deals with the dismissal

of the suit, where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment. As already stated hereinabove, the parties "at issue' means when a material proposition of fact or law is affirmed by one party and denied by the other. In the instant case as a matter of fact, the issues were framed by the trial Court prima-facie after having found that the parties were at issue. Then, in that event, it was not open for the trial Court to hold that parties were not at issue and to proceed to dismiss the suit under order 15, Rule 1 of the Civil Procedure Code. The only way out left to the Court was to proceed under Order 9, Rule'8 of the Civil Procedure Code treating the plaintiffs as absent when the suit was called on for hearing. The Trial Court could not have held that the parties were not at issue. It could not have proceeded to dismiss the suit on merits under Order 15, Rule 1 of Civil Procedure Code. When trial Court took a view that parties were not at issue, the trial Court appears to have presumed that there was no dispute between the parties. Impliedly, inability to lead evidence on the part of the plaintiffs was treated to be a case of absence of evidence to establish dispute between the parties. In the present case, it cannot be said that parties were not at issue on any question of law or of fact and therefore the trial Court could not have proceeded to pronounce the judgment under Order 15, Rule 1 of Civil Procedure Code. In my view, the approach adopted by the trial Court was palpably erroneous. This case was well within the sweep of Order 17, Rule 2 and the learned judge had no material before him to justify the disposal of the plaintiffs' case on merits by dismissing the entire suit under Order 15, Rule 1 of Civil Procedure Code, holding that parties were not at issue. The impugned judgment and decree cannot stand to the scrutiny of law.

CONCLUSION

26. I think this appeal for the reasons stated hereinabove deserves to be allowed and the judgment and decree of the trial Court is liable to be quashed and set aside. Accordingly, appeal is allowed. The impugned judgment and decree is set aside and the suit is remitted back to the trial Court for hearing and decision on merits in accordance with law as expeditiously as possible, at any rate within a period of six months from the date of receipt of the writ from this Court. The trial Court is directed to treat this suit as expedited one.

27. In the result, the appeal is allowed with no order as to costs.