Satish Saggar vs Managing Director, M. P. Industrial Centre Development Corp.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(MP) 224

1999 (2) JLJ 193
D.P.S. Chauhan, J.
Satish Saggar v. Managing Director, M.P. Industrial Centre
Development Corp. and another
Civil Revision No. 580 of 1995; against the order of VI Additional District
Judge, Raipur, passed in Misc. Appeal No. 83 of 1994; arising out of order
passed by III Civil Judge, Class II, Raipur, in M.J.C. Nil, Decided on 22.4.1997.

Headnote:(1) Civil P.C., 1908 -- O. 5 and O. 7 R. 11 -- O. 5 is first stage of the suit -- after service the defendant may file reply or may file an application under O. 7 R. 11. [Para 5]
       (2) Civil P.C., 1908 -- O. 8 R. 1, O. 5 R. 6 and O. 7 R. 1 -- defendant appeared after service -- adjournment granted for filing written statement -- such adjourned date is not for hearing of the case. [Paras 6 & 7]
       (3) Civil P.C., 1908 -- O. 14 R. 1 -- suit is posted for hearing after issues are framed and not before. [Para 6]
       (4) Civil P.C., 1908 -- O. 9 R. 8 and O. 14 R. 1 -- suit is not heard before framing of issues -- no suit can be dismissed in default of appearance before that stage. [Para 7]
       ¼1½ flfoy izfØ;k lafgrk] 1908 && vk- 5 rFkk vk- 7 fu- 11 && vk- 5 okn dk izFke izØe gS && rkehy ds i‘pkr~ izfroknh mÙkj Qkby dj ldrk gS vFkok vk- 7 fu- 11 ds v/khu vkosnu Qkby dj ldrk gSA ¿ iSjk 5
       ¼2½ flfoy izfØ;k lafgrk] 1908 && vk- 8 fu- 1] vk- 5 fu- 6 rFkk vk- 7 fu- 1 && izfroknh rkehy ds i‘pkr~ izfroknh mÙkj Qkby dj ldrk gS vFkok vk- 7 fu- 11 ds v/khu vkosnu Qkby dj ldrk gSA ¿ iSjk 6 rFkk 7
       ¼3½ flfoy izfØ;k lafgrk] 1908 && vk- 14 fu- 1 && lquokbZ ds fy, okn fook|dksa dh fojpuk ds i‘pkr~ j[kk tkrk gS] mlls iwoZ ughaA ¿ iSjk 6
       ¼4½ flfoy izfØ;k lafgrk] 1908 && vk- 9 fu- 8 rFkk vk- 14 fu- 1 && okn dh lquokbZ fook|dksa dh fojpuk ls iwoZ ugha dh tkrh && ml izØe ls igys dksbZ Hkh okn mifLFkfr ds O;frØe ds fy, [kkfjt ugha fd;k tk ldrkA ¿ iSjk 7

ORDER

1. The revision is directed against the order dated 14.2.95 passed in Misc. Appeal No. 83/94 which arose out of the order dated 8.10.92 passed on an application under Order 9 Rule 9 CPC.

2. The plaintiff filed a suit for declaration and injunction wherein the trial Court fixed 29.8.92 as the date for filing the written statement on which date no written statement was filed by the defendant but on that date, the plaintiff could not appear in Court as on account of some family property fued at his native place in Punjab, he proceeded to that place and could not contact his counsel to appear in the case. The case was dismissed for default of appearance of the plaintiff, on 29.8.92, and the plaintiff on his coming back, came to know about the order on 17.6.93 when he contacted his counsel and the counsel told him that he could not attend the case because of his remaining busy in some other cases which has resulted in dismissal of the suit itself For setting aside the order of dismissal of the suit and restoration of the suit, an application was moved under Order 9 Rule 9 CPC, which was rejected by the trial Court, where against an appeal was preferred which also met the same fate and as such, the present revision is directed.

3. Learned counsel for the applicant submitted firstly that the suit was filed by the plaintiff which was dismissed for default. Therefore there was no question of either avoidance or negligence on the part of the plaintiff for either pursuing the suit or not remaining vigilant in the suit. Secondly, so far as his statement of going to his native place was concerned, the same was not rebutted on oath and also the statement of the counsel that at the relevant time when the case was called, he was busy in some other Court which was not rebutted by way of an affidavit and denial and therefore .no adverse inference should have been drawn by the Court below. Thirdly, the learned counsel for the applicant submitted that the dismissal of the suit itself was bad in law in view of the provisions of Order 9 Rule 8 CPC.

4. So far as the first two submissions are concerned, they relate to the factor pertaining to the fact and it is not necessary to dilate on them as those facts are not rebutted by the learned counsel for the other side. But so far as the question of non-applicability of the provisions of Rule 8 of Order 9 is concerned, the same requires consideration. Rule 8 of Order 9 CPC is as extracted below :--

"Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

It provides for dismissal of the suit when called on for hearing, on the ground that the defendant appears but the plaintiff does not appear.

5. The question is as to what is the procedure followed after the institution of the suit and prior to the stage when the case is called on for hearing. The first stage provided under Order 5 is issuance of summons for making appearance and to answer the allegation made in the plaint on the date specified in the summons and counter claim, if any, to be filed in the written statement or an objection can also be filed, if available to him under the provisions of Order 7 Rule 11 CPC.

6. Here in the present case, the service was effected and the defendant appeared but the time was allowed for filing the written statement and for that purpose; the case posted on 29.8.92.

After the written statement is filed, then the stage of filing of the documents comes, as well as the stage for framing of the issues and after framing of the issues, the case is posted for hearing.

7. In the present case, in fact, the case was not posted for hearing and the date 29.8. 92 was not the d

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