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HIGH COURT OF CALCUTTA
D. N. Sinha, B. C. Mitra
SOHANLAL RUIA - Appellant
Versus
KEDARNATH PURUSHOTTAMDAS AND CO. PRIVATE LTD. - Respondent
A. F. O. O. 1 Of 1967
Decided On : FEBRUARY 18, 1969
CIVIL PROCEDURE CODE - ORDER 9 RULE 13 - EX PARTE DECREE - SUFFICIENT CAUSE - APPEARANCE OF COUNSEL - ADJOURNMENT - LEAVE TO RETIRE - DISMISSAL OF SUIT - RESTORATION OF SUIT.
Fact of the Case:
The appellants' application for recalling and/or setting aside a decree dated April 7, 1966, was dismissed. The suit in which the decree was passed was called on for hearing on March 25, 1966. The witness of the respondent No. 1 (plaintiff in the suit) Murlidhar Jhunnjhunwalla was examined and his cross-examination was concluded on March 31, 1966. On the same day Ishwari Prasad Ruia the appellant No. 2 was examined as a witness on behalf of the defendant but his cross-examination was not concluded on that day. The suit was thereafter not called on for hearing until April 7, 1966. On that day the examination of the appellant No. 2 was concluded. The next witness on behalf of the appellants was one Debi Prosad Bajoria, but this witness was not present in Court when the cross-examination of the appellant No. 2 was concluded. According to the appellants Debi Prosad had informed them in the morning of the same day that it was absolutely necessary for him to go to his factory at No. 1 Ultadanga Main Road, but ho also promised to attend the Court at 11 a. m. The appellants relied on this assurance of Debi Prosad and expected him to be in Court as promised. It is alleged in the petition that as soon as the appellant No. 2 stepped into the witness box at about 12-40 p. m. on April 7, 1966, for further cross-examination, the appellant No. 1 rung up Debi Prosad to enquire why the latter did not attend the Court as promised. Appellant No. 1 was told by Debi Prosad on the telephone that there was great disturbance in Manicktola area, where firing was going on at random and that no conveyance was available at the tune in the locality, to enable Debi Prosad to come to Court. Thereupon it is further alleged that the appellant No. 1 informed Debi Prosad that a transport would be arranged to fetch him to Court and thereafter the appellant No. 1 took a taxi, and proceeded towards Ultadanga Main Road, and upon reaching Manicktola area the appellant No. 1 found that it was not possible at all to reach the factory of Debi Prosad, because of disturbances. It is further alleged that taxi driver refused to proceed further towards the factory.
Finding of the Court:
The suit was disposed of ex parte as against the appellants and the respondents Nos. 2 to 8 and the appellants had made out a case which showed sufficient cause which prevented them from appearing at the further hearing of the suit, and the decree passed against them ought to be set aside.
Issues: Whether the suit was disposed of ex parte against the appellants.
Ratio Decidendi: Mere physical presence of counsel in Court, without anything more, does not constitute an "appearance" by a party in a suit particularly when he asked for leave to retire from the suit, on a ground which subsequently appears to be not frivolous or without substance. If in such a case leave to retire is refused and the Court proceeds to dispose of the suit, as was done in this case, it cannot but be held that the suit was disposed of ex parte as against the party who failed to appear. To hold that in such a case Rule 13 of Order 9 of the Civil Procedure Code does not apply because there was a right of appeal, would in our view cause grave injustice to a party. If in such circumstances a suit is decreed ex parte against a defendant as he failed to appear, and tender the evidence which he proposed to tender, an appeal against the decree would be hardly of any avail to him. He will certainly not be in a position to agitate the grounds of his defence before the appellate Court, because such defence would not be on the records. He would be confined and restricted only to an attack on the evidence tendered on behalf of the plaintiff and to question of law, if any, and to nothing more. If the suit was disposed of ex parte as against him and if there was sufficient cause for his failure to appear at the first or the further hearing of the suit, he cannot and should not be deprived of the right to advance and to agitate the grounds of his defence to the plaintiff's claim.
Final Decision: Appeal allowed. Judgment and order of the Court below are set aside and there will be an order setting aside the decree dated April 7, 1960. Let the suit appear in the appropriate warning list forthwith. Parties will be at liberty to apply for early hearing of the suit. The respondent No. 1 to pay to the appellants the costs of this appeal and also the costs of the application out of which this appeal arises. The costs of the suit thrown away to abide by the result of the suit.
( 1 ) THIS appeal is directed against an order dated June 7, 1966 whereby the appellants' application for recalling and/or setting aside a decree dated April 7, 1966, was dismissed.
( 2 ) THE suit in which the decree wag passed, was called on for hearing on March 25, 1966. The witness of the respondent No. 1 (plaintiff in the suit) Murlidhar Jhunnjhunwalla was examined and his cross-examination was concluded on March 31, 1966. On the same day Ishwari Prasad Ruia the appellant No. 2 was examined as a witness on behalf of the defendant but his cross-examination was not concluded on that day. The suit was thereafter not called on for hearing until April 7, 1966. On that day the examination of the appellant No. 2 was concluded. The next witness on behalf of the appellants was one Debi Prosad Bajoria, but this witness was not present in Court when the cross-examination of the appellant No. 2 was concluded. According to the appellants Debi Prosad had informed them in the morning of the same day that it was absolutely necessary for him to go to his factory at No. 1 Ultadanga Main Road, but ho also promised to attend the Court at 11 a. m. The appellants relied on this assurance of Debi Prosad and expected him to be in Court as promised. It is alleged in the petition that as soon as the appellant No. 2 stepped into the witness box at about 12-40 p. m. on April 7, 1966, for further cross-examination, the appellant No. 1 rung up Debi Prosad to enquire why the latter did not attend the Court as promised. Appellant No. 1 was told by Debi Prosad on the telephone that there was great disturbance in Manicktola area, where firing was going on at random and that no conveyance was available at the tune in the locality, to enable Debi Prosad to come to Court. Thereupon it is further alleged that the appellant No. 1 informed Debi Prosad that a transport would be arranged to fetch him to Court and thereafter the appellant No. 1 took a taxi, and proceeded towards Ultadanga Main Road, and upon reaching Manicktola area the appellant No. 1 found that it was not possible at all to reach the factory of Debi Prosad, because of disturbances. It is further alleged that taxi driver refused to proceed further towards the factory.
( 3 ) IN the meantime the learned counsel appearing for the appellants upon finding that neither the next witness Debi Prosad nor the appellant No. 1 who was also a material witness were in Court, applied for an adjournment of the suit, but this prayer was rejected by the Court. Thereafter the Court waited for sometime and the learned counsel for the appellants prayed for an adjournment of the suit a second time, which was again refused. Upon refusal of the prayer for adjournment learned counsel for the appellants and for the respondents Nos. 2 to 8 asked for leave to retire from the suit but such leave was not granted. Thereafter the Court disposed of the suit by passing a decree in favour of the respondent No. 1. This was followed by an application by the appellants for recalling and/or setting aside the decree as mentioned earlier. This application was dismissed by the judgment and order dated June 7, 1966, which is the subject matter of this appeal, I should only add that the application for setting aside the decree, out of which this appeal arises, was tried by the Court below on evidence and on the oral evidence tendered the Court below came to the conclusion that there was nothing to prevent Debi Prosad from corning to Court for giving evidence on April 7. 1966.
( 4 ) ON behalf of the appellants Mr. Hirak Milter contended that the learned counsel appearing for the appellants in the Court below had no other alternative but to ask for leave to retire as both the material witnesses were not present in Court. It was argued that in that circumstance it was not possible for the learned counsel to proceed with the suit and he was quite justified in asking for leave to retire, and although such leave was not grante
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