1998 Supreme(Bom) 380

IN THE HIGH COURT OF BOMBAY
R.M.S. Khandeparkar, J.
Shri Pratapchand Lakhamaji Jain .....Applicant.
Versus
Smt. Lilabai Krishanath Surve ....Respondent.
Civil Revision Application No. 137 of 1997, decided on 18-7-1998.
Advocates appeared:
U.V. Joshi, for S.M. Oak, for the applicant.

Headnote:Order III, Rule 1, Order IX, Rules 3, 4, 8 and 9-Second suit on same cause-:-Maintainability-Once it is proved that on date of hearing of the suit the defendant was present but plaintiff neither himself nor his advocate were present, the Court is empowered to dismiss the suit in terms of Order IX, Rule 8 of CPC. If both parties are absent the suit will be dismissed under Order IX, Rule 9 in limine.-In other words the lower Appellate Court has held when the order of dismissal for default was passed, the advocate for defendants was present but the presence of advocate on behalf of the parties cannot be considered to be the presence of the party itself. The lower Appellate Court has further presumed that the advocate must have remained silent because the order does not mention that the advocate for defendant acted or pleaded on behalf of the party.

       The findings in this regard arrived at by the lower Appellate Court is apparently erroneous and contrary to the provisions contained in Order III, Rule 1 of CPC The provision contained in Order III, Rule 1 of CPC

       The provision contained in Order III, Rule 1 of CPC clearly states that appearance of the party can be either in person or through his recognized agent including lawyer. Besides Rule 4 of Order III of CPC clearly provides that a pleader can act for any person on being duly authorised by a party to the litigation. In the instant case the record shows that the civil suit fixed for filing of the list of witnesses on 11.4.1984 and, thereafter, the matter was adjourned for hearing on 14.6.1984, on which date, the order of dismissal for default was passed by the trial Court. Once record disclose that on the date of hearing of the suit the defendant was duly represented in the Court, but neither the plaintiff nor anyone on behalf of the plaintiff appeared, the Court is empowered to dismiss the suit in terms of Order IX, Rule 8 of CPC

       Order IX, Rules 3, 4, 8 and 9-Evidence Act, 1872, Sections 101 and 102-Shifting of burden of proof-Once the plaintiff proves the facts, only after that the burden of proof could be shifted to defendant. The trial Court rather than arriving at the finding on the basis of the materials placed before it, has proceeded to conclude on the basis of assumptions and presumptions while illegally casting the burden on the defendants to prove that the earlier suit was not dismissed in terms of Order IX, Rule 8 of CPC Once it was not disputed by the plaintiff that the earlier suit was dismissed for default, it was for the plaintiff to prove that the earlier suit was dismissed in terms of Order IX, Rule 3 of CPC and, therefore, the plaintiff was entitled to file a fresh suit in terms of provisions contained in Order IX, Rule 4 of CPC The question of requiring the defendants. to plead and prove that the suit was dismissed under Order IX, Rule 8 of CPC would have arisen, in case, plaintiff had prima facie established that the earlier suit was in fact dismissed to default in terms of Order IX, Rule 3 of CPC Unless the plaintiff had discharged his initial burden, there was no occasion for the trial Court to expect the defendant to plead and prove the fact in negative and on such failure on the part of the defendant, to assume and presume that the earlier suit was dismissed in terms of Order IX, Rule 3 of CPC

       Order IX, Rules 8 and 9-Dismissal of suit under Rule 8-Fresh suit-Bar-Suit filed on fresh cause of action and for relief not maintainable.-R.C Suit No. 43/88 having been filed after dismissal of the Civil Suit No. 21/82 in terms of Order IX, Rule 8 of CPC and being for the same relief and on the basis of same cause of action, is to be held not tenable in view of provision contained in Order IX, Rule 9 of CPC and is liable to be dismissed in limine. The R.C Suit No. 43/88 is, therefore, not maintainable in terms of provision under Order IX, Rule 9 of CPC, and is hereby dismissed.

       Order IX, Rule 9-Dismissal order against plaintiff-Order of dismissal ex party-Application filed with delay for setting aside order-Mistake of advice by advocate-Bona fide-Reasonable cause--Condonation of delay proper.- The respondent acted in good faith as per the advice of the lawyer which itself was bona fide given by the lawyer. All these facts clearly disclose sufficient cause for condonation of delay of 13 and 1/2 years in approaching the Court under Order IX, Rule 9 of CPC and in that view of the matter it cannot be said that there is any arbitrary or illegal exercise of jurisdiction by the trial Court in allowing the application for condonation of delay. The trial Court has exercised its discretion judiciously and, therefore, does not warrant any interference of this- Court in the Revisional jurisdiction;

       Section 5--Dismissal of suit-Application for condonation of delay-Filing of fresh suit instead of restoration application on same course of action-Procedure followed by uneducated body acting on advice of lawyer-Condonation of delay of 131/2 years due to bona fide mistake of lawyer-Delay condoned.-It is pertinent to note here that undisputedly the respondent is illiterate and uneducated old lady and therefore, has necessarily to depend upon the legal advice of her lawyer. Taking into consideration all the facts of the case, the view taken by the Court below and order having been passed when the plaintiff and defendant being personally not present when the matter was fixed for hearing, it cannot be said that the legal advice given by the advocate for the respondent to file fresh suit in terms of Order IX, Rule 4, CPC to be totally unreasonable or without due care and attention or by way of lack of bona fide on the part of advocate in giving such advice. Besides, the respondent on issuance of rule in CRA 137 of 1997 mainly took step to file necessary application for restoration of the earlier suit. It is thus, apparent that the respondent acted in good faith as per the advice of her lawyer which itself was bona fide given by the lawyer. All these facts clearly disclose sufficient cause for condonation of delay on 13 and 1/2 years in approaching the Court under Order IX Rule 9, CPC and in that view of the matter it cannot be said that there is any arbitrary or illegal exercise of jurisdiction by the trial Court in allowing the application for condonation of delay.