M/S M.G.F. (India) Ltd. vs M/S Daily Pratap And Ors.
2001 Latest Caselaw 1464 Del

ORDER

B.N. Chaturvedi, J.

1. Instant application is made on behalf of the respondent under Order XLVII Rule 7(2), Order IX Rule 9 read with Section 141 and Section 151 CPC seeking recall of order dated 13th May, 1999 and restoration of RA No. 24/98 as well as application for condensation of delay in filing the objections.

2. The application proceeds to state that Ms. Saroj Bidawat, Advocate had appeared as counsel for applicants respondents on 18th March, 1999 when the case was adjourned to 13th May, 1999. However, by bonafide mistake, Ms. Saroj Bidawat got the impression that matter had been adjourned to 14th May, 1999 and she accordingly made note of 14th May, 1999 instead of 13th May, 1999 as the next date of hearing in her diary. Having misnoted the date, there was no appearance on 13.5.1999 from the side of the applicants-respondents, which accounted for dismissal of the review application and I.A. No. 9480/98 for condensation of delay in filing the objections.

3. The application is supported by an affidavit of Ms. Saroj Bidawat, Advocate.

4. The application is opposed on behalf of the non-applicant/petitioner on the grounds that since the review application had been decided on merits, the application for restoration thereof is not maintainable and further that there being no sufficient cause for non appearance of the respondents of their counsel, the application cannot be granted.

5. I have heard the arguments on both the sides.

6. The order dated 13th May, 1999, dismissing the review application and I.A. No. 9480/98 may be reproduced for the benefit of reference. It reads as under:

"There is no appearance on behalf of the respondent.

By the present application the respondent seeks review of the order dated 17.9.1998. Perused the order dated 17.9.1998. There is no error apparent on the face of the record. Consequently, the review application and the application seeking condensation of delay in filing the review application are dismissed.

IAs stand disposed of."

7. On 18th March, 1999, the case was adjourned to 13th May, 1999, for disposal of RA 24/98 and IA 9480/98. On that date, however, there was no appearance on behalf of the applicant respondents. Instead of dismissing the said applications for default, the application for review was dismissed holding that there was no error apparent on the face of the record. IA No. 9480/98, which is actually an application for condensation of delay in filing objections to the award and not one seeking condensation of delay in filing the review application, as noted in the order dated 13th May, 1999 was also dismissed in view of rejection of the application for review.

8. Learned counsel for the applicants-respondents seeking restoration of the said applications contended that though the order dated 13th May, 1999, in relating to the review application purports to have been passed on merits, the same is in fact an order under Order 17 Rule 2 CPC and not one under Order 17 Rule 3(a) of CPC, and therefore, apart from order XLVII Rule 7(2), Order IX Rule 9 CPC can well be invoked to maintain an application seeking restoration of the review application. It was pleaded that though the provisions embodied in Order 17 are basically applicable to the suits, by virtue of Section 141 of the Code, the same can be held applicable in relation to miscellaneous proceedings as well. He argued that on the analogy of provisions contained in Order 17 CPC relating to suits, in view of section 141 CPC, on 13th May, 1999, when the respondents or their counsel failed to appear before the Court when the applications in question were taken up for disposal, the only course open to the Court was to proceed to dispose of the same under relevant provisions of Order 9 CPC and no order on merits could have been passed. He further pleaded that even if the order dated 13th may, 1999, purports to have been passed on merits, the same would in effect the treated as one passed under relevant provisions of Order 9 CPC and in that view of the matter it is open to the respondent to apply for restoration thereof.

9. In support of his plea for restoration of the application for review the learned counsel for the respondents placed his reliance on the decision in Prakash Chander Manchanda and another Vs. Smt. Janki Manchanda , Seth Munna Lal Vs. Seth Jai Prakash , Kunji Ammal Kalyani Ammal, Vs. Krishnan Kochu Krishnan and another AIR 1954 TRA-CO 150 (Vol. 41, C.N. 53), P. Raghava Menon AIR 1954 TRA-CO 151 (Vol. 41, C.N. 54), Jwala Prasad Vs. Ajodhya Prasad , Duryodhan Vs. Sitaram and others , Pratap Narain Aggarwal Vs. Ragho Prasad and others , State Bank of India Vs. Nand Ram (deceased) through LRs & Ors. 1999 (3) CCC 248 (MP) and M/s. Handloom Saree Bhawan Vs. M/s. Liberty Stores 1997 II AD (Delhi) 509.

10. From the side of the petitioner on the other hand reference was made to decision in Lily Thomas etc. Vs. Union of India & Ors. 2000 (RLJ 2433); U.P. Hotels etc. Vs. U.P. Electricity Board, , M/s. Bharat Coking Coal Ltd. Vs. M/s. C.K. Ahuja and another 1995 AIR SCW 1419 and Eshar Dutt Singh and another Vs. Jamuna Singh AIR 1940 Rangoon 144, which really do not deal with the question of maintainability of an application for restoration of a review application, purported to have been decided on merits in the absence of the party making such application and the same thus cannot help promote the plea of the petitioner questioning maintainability of the application on hand.

11. Rs. 2 & 3 of Order XVII CPC set out the procedure to deal with situations arising out of absence of the parties or any of them, on any day to which the hearing of the suit is adjourned.

12. Rule 2 enacts the provision for disposal of the suit in one of the modes directed in that behalf by O.IX, where the parties or any of them fail to appear on an adjourned date of hearing. Apart from proceeding under Order IX, the Court is also vested with the discretion to make such other order as it thinks fit. Explanation to Rule 2 supplies an added dimension to it by providing that where the evidence or a substantial portion of the evidence of any party has been recorded, in the event of such a party failing to appear on the adjourned day of hearing, the Court may, in its discretion, proceed with the case as if such party were present.

13. Rule 3 empowers the Court to proceed with the suit, notwithstanding either party failing to produce evidence etc. In an eventuality where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, such default notwithstanding, the Court may, (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2.

14. Procedure spelt out under Rr 2 & 3 of O XVII CPC is clear and unambiguous. A combined reading thereof makes it evident that except in a situation contemplated under Explanation to Rule 2, the Court is left with no option but to proceed with the suit in one of the modes directed in that behalf by Order IX CPC., where a party fails to appear on an adjourned date of hearing. Of course, instead of proceeding under Order IX CPC the Court is also empowered to make such other order as it thinks fit but 'such other order' cannot be one deciding the suit on merits.

15. In Prakash Chand Manchanda (supra) the defendant and his witnesses were absent on the adjourned date fixed for recording of his evidence. His evidence was closed. Thereafter, on two subsequent dates also, fixed for arguments, the defendant or his counsel failed to turn up. The Court eventually proceeded to pass judgment after hearing the arguments advanced by the plaintiff's counsel. Later, an application under Order 9 Rule 13 CPC was made for setting aside ex parte decree but the same was dismissed by the trial court holding that the case was disposed of not in accordance with 0.17 Rs. 2 but in accordance with 0.17 R.3 and therefore the application under Order 9 Rule 13 CPC was not maintainable. A review application filed by the defendant was also dismissed by the trial court. The first appeal filed before the High Court was summarily dismissed. On an appeal, dealing with the scope of Rr. 2 and 3 of 0.17 CPC, the Supreme Court, summed up in the following terms:

"It is clear that in cases where a party is absent only course is as mentioned in 0.17(3) (b) to proceed under R. 2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under R. 2. Similarly the language of R. 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under 0.9. The explanation to R. 2 gives a discretion to the Court to proceed under R. 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with 0.17 R. 2 in any one of the modes prescribed under 0.9, Civil P.C."

16. Apart from a case covered under Explanation to Rule 2 of 0.17 CPC; where a party to the suit is absent, the Court cannot proceed to decide a suit on merits. Same procedure holds goods in relation to miscellaneous proceedings of civil nature, contemplated by S. 141 CPC.

17. Thus, on an adjourned date of hearing in relation to a review application, where the applicant is absent, the Court would not proceed to decide the same on merits and in the event of an order disposing of the application being passed on merits, such an order would turn out to be legally inconsequential. Therefore, in the present case, non-applicant/plaintiff cannot justify its opposition to the application on hand on the ground of its non-maintainability.

18. There is another aspect of the matter which also needs to be taken note of Though the applicants-respondents seeks to maintain their application for restoration of the review application under Order 47 Rule 7(2) CPC, with the aid of 0.9 read with Section 141 CPC, 0.47 R. 7(2) by itself is sufficient to maintain the application, which reads as under:

"Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same."

19. Clearly, R7(2) of 0.47 can be invoked for restoration of a review application, independent of 0.9 CPC., where rejection thereof is occasioned on account of absence of the applicant. Rejection of the review application on merits in the absence of the applicant-defendant being legally inconsequential, an application under Order 47 Rule 7(2) of the Code, is competent to seek restoration of the review application.

20. Adverting to the sufficiency of cause for non appearance on 13.5.1999, on behalf of the applicants, it may be noted from the averments in the application that Sh. V.P. Chaudhry, Senior Advocate, who was to argue the review application on behalf of the applicants/respondents, developed a heart ailment on the previous night and had to be hospitalised. When the case came up before the Court on 18th March, 1999, on a request on behalf of the applicants-respondents for an adjournment, the case was adjourned to 13th May, 1999. Ms. Saroj Bidawat, advocate, of M/s. Sharma, Chaudhry & Rathi Advocates had appeared on behalf of the applicants-respondents on 18th March, 1999. She, however, by bonafide mistake noted the next date as 14.5.1999 instead of 13.5.1999. Shri M.M. Mehta, representative of the applicants-respondent, who had been pursuing the case on their behalf, was also present on 18.3.1999 but he was sitting on the back side of the Court room. It was Ms. Saroj Bidawat, Advocate who told him that the case has been adjourned to 14.5.1999. Since the next date had been noted as 14.5.1999 in the case diary of the counsel for applicants/respondents the factum of the case being listed in the cause list of 13th May, 1999 escaped his attention. In the cause list of the case listed on 13th May, 1999, neither the name of Sh. V.P. Chaudhry, Senior Advocate nor that of Ms. Saroj Bidawat, Advocate was shown. On receiving the cause list for 14th May, 1999, in the evening of 13th May, 1999 and discovering that the case had not been listed on 14th May, 1999, on the advice of Sh. V.P. Chaudhry, Senior Advocate, Ms. Saroj Bidawat, Advocate contacted Sh. S.K. Mehra, Advocate, counsel for the non-applicant petitioner to check up from him about the date when Sh. S.K. Mehra informed her that the case had been listed fro that day itself i.e. 13th May, 1999. He further informed her that since none had appeared for the applicants/respondents the application had been dismissed. Thereafter, Ms. Saroj Bidhawat applied on 14.5.1999 for inspection of the file and on inspection of the file on 15.5.1999 came to know that the review application had been dismissed on 13th May, 1999.

21. The order sheet dated 18th March, 1999 shows the presence of Ms. Saroj Bidawat, Advocate on behalf of the applicants respondents on that date. It is noticed from the order dated 18th March, 1999 that on request by Ms. Saroj Bidawat, Advocate for an adjournment on the ground of illness of Sh. V.P. Chaudhry, Senior Advocate, the case was adjourned to 13th May, 1999. The fact that Sh. V.P. Chaudhry, Senior Advocate was unwell on 18th March, 1999 and consequent did not appear before the Court is not in question. In reply it has been admitted on behalf of the non applicant/petitioner that Ms. Saroj Bidawat, Advocate had spoken to its counsel Sh. S.K. Mehra, Advocate on phone on the evening of 13.3.1999 to inquire about the date in the case and that Sh. Mehra had informed her about dismissal of the applications. In the face of an affidavit of Ms. Saroj Bidawat, Advocate, coupled with photo copies of the case diary annexed to the application and the sequence of events indicated in the application it appears to be a case of bonafide mistake on the part of the learned counsel for the applicants/respondents in noting the next date as 14th May, 1999 instead of 13th May, 1999. Sufficient cause for the absence of counsel for the applicants/respondents or their representative on 13.3.1999 is thus held to be made out. In the circumstances, the application deserves to be allowed. The application for restoration is accordingly granted and the review application is restored to its original number.

22. Together with application for review, another application under Section 5 of the Limitation Act seeking condensation of delay in filing the objections to the award was also dismissed on 13th May, 1999. It appears that due to oversight this application was taken to be one for condensation of delay in making the review application and therefore, the same was also dismissed with the application for review. Since the dismissal of this application was occasioned under a mis-impression to the said effect, the order dismissing the same should be recalled and the application is liable to be restored Along with the review application. Ordered accordingly.