Jai Ram Dass & Co. vs R.S. Bhatia
1982 Latest Caselaw 244 Del

JUDGMENT

Sultan Singh, J.

(1) This appeal by the plaintiff challenges the order dated 7.9.81 of the Subordinate Judge 1st Glass, Delhi dismissing his applica- tion fop setting aside the order of dismissal dated 3.9.81 and restoring the suit for trial.

(2) Briefly the facts are that on 26.3.81 the plaintiff filed a suit for recovery of Rs.l2,000.00 against the defendant. Summons for the settlement of issues was issued for 29.5.81 on which date written statement was filed and the suit was adjourned to 3.9.81 requiring the parties to appear in person and for filing replication, documents, admission denial and issues. On 3.9.81 when the suit was called none appeared and therefore, the suit was directed to be called again. At 12.35 p.m. the suit was again called but there was no appearance on behalf of the parties. The suit was, therefore, dismissed in default of appearance of both parties.

(3) The plaintiff's counsel, on 3.9.81 supported by his own affidavit, filed an application for the restoration of the suit alleging that he appeared in the court and was waiting for the case listed at serial No. 26 in the cause list, that another client came to him for his appearance before Shri R.N. Jindal, Additional Controller, that he went to attend that case where evidence was recorded by the Additional Controller, that he became free at about 1.00 p m. and on return to the court found that the suit had been dismissed in default of appearance. The application alleges that the plaintiff's appearance was not necessary and therefore he had not come to the Court on that date, that the non appearance of the plaintiff or his counsel at theime when the case called, was neither intentional nor deliberate but was only bona fide. In these circumstances it was prayed that the order of dismissal be set aside and the suit be restored for hearing. The trial court without issuing any notice dismissed the application for restoration of the suit by order dated 7.9.8 J. The plaintiff has filed this first appeal. From the facts narrated in the application it is apparent that the counsel for the plaintiff was present in the court but he had gone to the Court of the Additional Controller and was busy in a case where evidence was being recorded. It is also admitted on behalf of the appellant that the plaintiff had not come to the Court. It was brought to his notice that his presence was required as ditected by the trial court.The learned counsel who was also counsel in the trial court submits that he was also counsel in the trial court submits that he was under a wrong impression that on 3.9.81 replication and documents only were to be filed and that the presence of the plaintiff was not necessary. He submits that under these circumstances he had not instructed the plaintiff to appear in person on that date. The suit was dismissed at about 12.35 p.m. on 3.9.81. The application along with the affidavit of the counsel appearing in the trial Court was filed on 3.9.81. Filing of the application on that very date shows the bona fides of the plaintiff's counsel He also mentions the reasons for his absence at the time when the case was called. There was no appearance on behalf of the defendant also. Where neither party appears when the suit is called on for hearing the court has a discretion to dismiss the suit within the meaning of order 9 Rule 3 the Code of Civil Procedure. When a defendant appears and the plaintiff does not appear and the suit is called on for hearing, the court is bound to dismiss the suit under Older 9 Rule 8 of the Code of Civil Procedure unless the defendant admits any part of the plaintiff's case in which case the Court is enjoined to pass a decree against the defendant to the extent of the claim admitted by the defendant. Order 9 Rule 9 of the Code of Civil Procedure applies when the suit is dismissed in the presence of the defendant but in the absence of the plaintiff, for its restoration. In the present case when neither party appeared before the trial court provisions of order 9 Rule 4 of the code of civil Procedure would be applicable. Rule 4 provides that it there was sufficient cause for the non appearance of the plaintiff, the Court shall make an order setting aside the dismissal and to restore the suit. It has been held by the Supreme Court in Rafiq and another v. Munshilal and another, , that a party should not suffer for the inaction on his counsel. It has been observed by the Supreme Court that when a party has selected his advocate, briefed him and paid his fee, he can remain conlident that his lawyer will look after his interest and such an innocent party who has done everything in his power should not suffer for the inaction, deliberate ommission or misdemeanour of his counsel. In the instant case from the unrebutted affidavit it is clear that the plaintiff's counsel was present in the Court, he was waiting for the case to be calied which was at serial No. 26, he went to another Court for doing his another case but when he returned he found that the suit had been dismissed in default of appearance. In absence of any clear motive for the litigating party or his counsel to have deliberately absented on the date fixed for hearing of the case, the court. should hold that the litigant made out sufficient cause for his non appearance on the date fixed. The rules of procedure should not be so strictly applied as to deny the justice to the party unless the Court is satisfied ihat the party had a clear motive for his non appearance and he deliberately absented to achieve that motive. See: R.A. Arunachela lyer v.C.Subaramiah A.I.R. 1923 Madras 63, Man Singh and another v. Sanghi Dal Chand, and Kashirao Panduji v. Ramchandra Balaji, A.I.R. 1948 Nagpur 362. In the instant case the plaintiff filed the suit for recovery of money advanced as loan to the defendant. There can be no motive on his part to absent himself. Although the plaintiff was directed to appear in person on that date, but as the learned counsel for the plaintiff states that he was under wrong impression that only replication and documents were to be filed and if the plaintiff was not present on that date the suit ought not to have been dismissed for his absence. The trial court has observed that there was no sufficient cause for non-appearance of the plaintiff and that no ground was mentioned in the application why he, his counsel or any other counsel on benaif of the plaintiff's counsel did not appear on 3.8.81 in the Court as directed. When the plaintiff has appointed a counsel, it was for his counsel to appear in the case but for the reasons stated above, he could not appear at that very moment when the case was called. The plaintiff's counsel has filed his own affidavit which has not been rebutted. The affidavit of the plaintiff's counsel has not been considered by the trial Court. There is no reason to disbelieve his affidavit. The .affidavit discloses sufficient cause for the absence of the plaintiff's counsel when the case was called for hearing. The Appeal is accepted. The impugned order dated 7.9.81 is set aside and the suit is restored for trial in accordance with law.

(4) The partics are directed to appear before the trial Court on 20th September, 1982. No order as to costs.