Satpalsingh Amolaksingh Bagga ... vs Mrs. Sandhya Amitabh Pandey
2005 Latest Caselaw 268 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. This Civil revision under Section 115 of the Code of Civil Procedure is filed by original defendant taking exception to the order dated 25th January, 2002 passed by Additional District Judge, Amravati in Misc. Civil Appeal No. 132 of 1996. By said order the learned Appellate Court has set aside the order of trial Court refusing to restore civil suit dismissed in default by it on 16-10-1996 passed in R.M.J.C. No. 135/1995. The said R.M.J.C. was filed by present respondent with prayer to restore Special Civil Suit No. 245/1992 filed by her back to file by setting aside the dismissal on 28-7-1995. R.M.J.C. was filed under Order 9, Rule 9, Civil Procedure Code by her for that purpose.

2. Facts as pleaded by respondent/original plaintiff in application under Order 9, Rule 9 reveal that she filed special Civil Suit claiming relief of specific performance on the basis of agreement of sale against the present revision applicant vide Special Civil Suit No. 245/1992. It appears that she was originally residing at Amravati being daughter of one Doctor R. G. Wani. After marriage she shifted to husband's place i.e. the Jhansi in Uttar Pradesh. She gave power of attorney to her father but he could not attend the Court on account of his own ill-health and under the impression that he would improve, dates were obtained from trial Court for leading evidence. Last application in this respect was moved vide exhibit 42 for enabling the respondent to make alternate arrangement either by appointing another person as power of attorney or to cancel it and for her own appearance to give evidence. That application was rejected by trial Court and the suit came to be dismissed. The respondent further states that between 22-4-1995 to 24-6-1995 her father was ill and bedridden with his son at Bangalore and was thereafter at Bombay between 24-6-1995 to 7-8-1995. It is mentioned that he returned to Amravati on 7th August, 1995 but continued to take treatment. Hence application at exhibit 42 came to be moved which was rejected and suit came to be dismissed. Her application under Order 9, Rule 9 was opposed by present revision applicant/original defendant. The respondent herself entered the witness box and she was subjected to cross-examination. The trial Court considered this evidence and after noticing the conduct of respondent on earlier dates and request made in application at exhibit 42, the trial Court found that once time was given to respondent to appoint another person as attorney and she failed to take steps in pursuance thereof. The trial Court has thereafter considered the case relied upon before it i.e. between Dulalchandra v. Bhanumati and found that no case was made out for restoration of civil suit back to file.

3. The Appellate Court found that prayer for appointment of Commissioner or to take appropriate steps as contained in exhibit 42 was made for the first time on 28-7-1995 and the trial Court ignored the fact that though several adjournments were earlier taken, all were granted by it. The Appellate Court thereafter has observed that the suit was for specific performance and huge amount was involved in it and as such, merely because some admissions were given in her oral evidence by the respondent, it was not proper or justifiable to deny her an opportunity to get the decision on merit. It therefore allowed the appeal subject to payment of cost of Rs. 1000/- by respondent to the petitioner. It is this order which is challenged in present Civil revision application.

4. I have heard Advocate Gupta holding for Advocate Madkholkar for Revision applicant and Advocate Bhagwat for respondent.

5. Advocate Gupta invites attention of Court to the order sheet maintained by trial Court to point out how more than 15 chances were given to respondent to adduce evidence and she failed to utilise it. He contends that the trial Court has correctly appreciated the situation and it was not proper on part of Appellate Court to interfere with exercise of discretion by trial Court. He further contends that Appellate Court has not given any reasons to interfere with exercise of such discretion by trial Court and has taken erroneous view. He relies upon view taken by Hon'ble Apex Court in ruling reported at between Hari Shamrao Nimje v. Union of India. It is his argument that thus there is failure to exercise jurisdiction in accordance with law. As against this Advocate Bhagwat states that all earlier adjournments were granted by trial Court and were therefore, not relevant on 28-7-1995 when trial Court dismissed the suit. He also relies upon judgment of Hon Apex Court reported at between State Bank of India v. Chandra Govindaji. He also relies upon the judgment of Nagpur High Court reported at 1950 NLJ 419 = AIR 1950 Nagpur page 194 between Mt. Khatijabai v. Mt. Akhatara Begum to urge that as Appellate Court has found sufficient ground to restore, this Court should not interfere in revisional jurisdiction.

6. The Appellate Court has appreciated application at exhibit 42 moved by respondent plaintiff before the trial Court by holding that such a prayer was made for first-time and prayer was to grant time to plaintiff to make alternate arrangement. It has further observed that all earlier adjournment applications were entertained and granted by trial Court. Thus, a look into the proceedings of trial Court is called for. If the order-sheet produced on record by revision applicant is perused, it shows that the suit was fixed for evidence first on 9th November, 1993. Respondent moved applications for adjournment on 1st February, 1994, 22-2-1994, 7-3-1994. On 16-3-1994 the respondent moved application under Order 8, Rule 16, Rule 14 and Order 8, Rule 3-A and it was rejected. On that day trial Court directed the respondent to lead evidence. On next date i.e. 21-3-1994 respondent moved application for adjournment which was granted. On next date i.e. 4-4-1994 again application was granted. On 9-6-1994 and 15-7-1994 her applications for adjournment were granted. On 12-8-1994 she sought permission to deliver interrogatories and it was rejected on 13-9-1994. On this date again respondent/plaintiff was directed to lead evidence. On next date i.e. 22-9-1994, again her adjournment application was granted and on next date i.e. 19-10-1994 she was absent. On 9-11-1994 her adjournment application was granted and it appears that thereafter this Court granted stay in Civil Revision Application 1157/1994. Said revision was rejected and trial Court fixed the case for evidence on 12-4-1995 which was later on declared holiday on account of sad demise of Prime Minister Shri Morarji Desai. On next date i.e. 26-4-1995 again the respondent sought adjournment which was granted. On 26-6-1995 again adjournment is sought but it is not clear who sought it. The matter was adjourned to 15-7-1995 and on that date again plaintiff/respondent sought adjournment by moving application at exhibit 41 which was allowed subject to payment of cost of Rs. 100/-. On next date i.e. 28-7-1995, plaintiff respondent moved application under Order 26, Rule 9 prayed with Section 151 of Code of Civil Procedure vide exhibit 42 and it was opposed. The trial Court rejected it and dismissed the suit with cost.

7. It is no doubt true that in judgment reported at Apex Court has found that what is relevant for consideration is the reason mentioned on the last date on which time was sought and adjournments sought and granted in the past were not relevant. However the Hon. Apex Court has further observed that if a reasonable ground existed on such date, that was sufficient for grant of adjournment. The discussion in paragraph 7 of this judgment is important. It is also to be noted that the Hon. Apex Court has in judgment reported at as no progress were shown by the respondents and no steps were taken by them, declined adjournment. Here, it is to be seen that several chances were given to the respondent to adduce evidence. She was knowing that her father is unwell and away from Amravati for considerable period. She did not take any effective steps to prosecute the suit in his absence. Her application for adjournment at exhibit 41 filed on 15-7-1995 was allowed finally subject to cost of Rs. 100/-. Inspite of all this, she did not give any priority to the suit and moved application at exhibit 42 on next date without paying the cost. Again in said application she sought time to make alternate arrangement by appointing another person as her attorney or in the alternate, for herself to appear and give evidence. It is to be noticed that she was already given directions to lead evidence. Thus, though the Court accommodated her even in past, respondent did not take the situation seriously and it is in this background that the trial Court dismissed the suit. The reliance upon judgment of Nagpur High Court (supra) in this background is therefore not warranted. The trial Court here found that there are no sufficient reasons to restore the suit while the Appellate Court has recorded a finding otherwise only because suit was for specific performance involving huge money and, as according to it, exhibit 42 contained a different prayer. The Appellate Court failed to note that exhibit 41 was finally granted subject to payment of cost of Rs. 100 and those costs were not paid. On the date on which exhibit 42 was moved i.e. 28-7-1995 again respondent/plaintiff was not present and in spite of all this, it was clear that she had not taken any positive steps to appoint another person as power of attorney or did not make a statement that she herself would appear on next date. Thus exhibit 42 did not contain any specific assurance or promise to the Court to gather that she had taken the matter seriously. What was sought was only an adjournment and nothing more. There was absolutely no justification to treat this application at exhibit 42 differently. The trial Court was right in dismissing the suit as the respondent could not have been permitted to expect the Court to function as per her convenience. I do not find that the Appellate Court has considered the entire situation, and has not applied the mind to the facts of the case. It has exceeded jurisdiction by interfering with the findings recorded by the trial Court. Under the circumstances, the revision needs to be allowed.

8. The impugned judgment dated 25-1-2002 delivered by Additional District Judge Amravati in Misc. Civil Appeal No. 132 of 1996 is hereby quashed and set aside. The judgment dated 16-10-1996 delivered by Civil Judge Senior Division, Amravati in RMJC No. 135/1995 is restored back. Rule made absolute even above terms. No order as to costs.