Mukesh Chandandas Harvani vs Pramilabai Wd/O Ramesh Sangole ...
2002 Latest Caselaw 145 Bom

JUDGMENT

J.N. Patel, J.

1. Rule. By consent, heard forthwith.

2. The plaintiff's suit came to be dismissed as he failed to appear on the date it was fixed for recording of evidence i.e. on 7-11-1994. Thereafter, the plaintiff having come to know that the suit has been dismissed in default, moved an application under Order IX, Rule 4, Civil Procedure Code for restoration of the suit. This application came to be filed on 14-11-1994. It was the case of the plaintiff that he could not attend the Court due to illness and even could not contact his advocate. It was further stated that his father who was holding of Power of Attorney on his behalf, had gone to attend marriage and, therefore, the suit should be restored to file. The learned Court found that the plaintiff has failed to give sufficient cause for his absence and dismissed the application.

3. Mr. Deshpande, the learned counsel for the applicant, submits that the application for restoration of the suit has been dismissed only on the ground that there was no medical certificate filed in support of the application and that the father of the applicant/plaintiff could have very well attended the Court or informed his advocate. It is submitted that the plaintiff has immediately taken up steps to seek restoration of the suit and it was not the intention of the plaintiff to prolong the matter and this was the first date when the case was taken up for recording of evidence and came to be dismissed in default and, therefore, this Court should quash the impugned order and restore the suit to file in the interests of justice.

4. Mr. Bhamburkar, the learned counsel appearing for the non applicants/defendants submits that the revision application filed by the plaintiff in this Court is not supported by affidavit. He also pointed out that the plaintiff did not file any medical certificate in the trial Court to substantiate his claim that he was ill on the date the suit was fixed for recording evidence and that for the first time a certificate has been filed by the applicant which is dated 15-3-1999 in this Court, and issued by the brother of the applicant. It is further submitted that the impugned order does not call for any interference as no sufficient cause was shown for restoration.

5. It appears that the trial Court has taken a hypertechnical view of the matter. This is not a case where the plaintiff has repeatedly remained absent and was prolonging the litigation putting the defendants to inconvenience. On the other hand, at the earliest opportunity, the plaintiff has approached the Court and has filed application for restoration and there is no reason to disbelieve the plaintiff that he was unable to attend the Court as he was suffering from illness and that his father who was holding Power of Attorney on his behalf, had gone to attend the marriage and, therefore, they could not communicate to their lawyer their inability to attend the Court.

6. The words "sufficient cause" appearing in Rule 4, Order IX, Civil Procedure Code should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the party and not to the cause of technicalities. "Sufficient cause" must be a cause which is beyond the control of the party and will depend upon the facts and circumstances of a particular case.

7. In the present case, the reason for absence is 'illness' of the plaintiff. Merely because medical certificate is not furnished, it should not lead to an inference that plaintiff is stating false as it is common knowledge that through a person may not be 'ill", still a medical certificate to that effect can be procured. It is not the case of the opponent that plaintiff was seen attending to his normal routine, therefore, there was no reason to disbelive him that he was 'ill'. Another reason given is that his father, who holds power of attorney, had gone to attend marriage, may also be accepted as sufficient cause.

8. In the facts and circumstances, the trial Court ought to have taken into consideration that the plaintiff's absence was due to circumstances beyond his control and should have restored the suit to file and at the most, imposed cost on the plaintiff for the inconvenience caused to defendants and his lawyer due to his absence. Therefore, the impugned order is quashed and set aside. The application for restoration is allowed. The suit is restored to file subject to cost of Rs. 1,000/-. Rule made absolute in the aforesaid terms.