Back
HIGH COURT OF MADHYA PRADESH
P. K. TARE, J.
Khadau
Vs.
Lakhan Sao
C. Revn. No. 304 of 1966 against order of the II Civil Judge, Class 1, Bilaspur;
Decided on : 21-3-1967
(2) Civil P. C., 1908 - O. 9, R. 9 & 13 & O. 41 R. 41 - restoration of suit or appeal-when may done under inherent powers - Civil P. C., 1908 - S. 151.
(3) Civil P. C., 1908 - S. 151 - inherent powers-restoration of suit or appeal under inherent powers-when may done.
If a case is not squarely covered by O. 9 rules 9 and 13, or Order 41 rule 19, the Court can still restore a suit or appeal to file. 1958 JLJ 315 relied on. [Para 6]
But where the case falls under O. 9, R. 9, the Court cannot restore the suit to tile unless sufficient cause ii shown. In tile absence of a sufficient cause the court is bound to dismiss the restoration application. [Para 7]
(4) Civil P. C., 1908 - O. 9, R. 8 - date fixed for framing issues-is a dale for hearing-plaintiff absent -suit liable to be dismissed in default.
The date for framing issues is as much a date for a hearing. As such the trial court can dismiss a suit in default if the plaintiff or his counsel remained absent for no sufficient cause. [Para 7]
(5) Civil P. C., 1908 - S. 115 - finding of fact arrived at by the lower Court-cannot be disturbed ill revision-but where trial Court arrives at unwarranted conclusions and makes harsh remarks while rejecting an evidence matter may be considered-judicial notice may be taken of a judicial record.
In an application filed by an advocate, an affidavit of the advocate was filed that he was busy in a criminal case upto 2-30 P.M., he examined himself, the reader of the Court whom he had informed of his difficulty at the early hours of the day, as the presiding officer was busy in another case, while the non-applicant examined himself to prove that the case was called several times before dismissal in default. The trial Court held that the advocate was a liar and probably a slur to his profession, but restored the case to file under inherent powers. The applicant contended that the High Court could not interfere a finding of fact in revision.
Held: Finding of fact in a revision are taken to be correct unless they arc found to be contrary to the material on record or they are found to be patently perverse. AIR 1965 SC 553 relied on.
But, in the instant case, the trial Court did not apply his mind to the facts as they emerged and proceeded on surmises and conjuctures in rejecting the evidence of the plaintiff and holding that the plaintiff has even failed to prove that his counsel was busy in a criminal case. No Court could have arrived at the conclusion that the counsel for plaintiff was telling lies when he said that he had been to the civil Court in the early hours and informed the Court reader of his difficulty and thereafter he was busy in a criminal case almost till 2-30 P. M. or so and when reached the civil Court at about 3 P. M. he found that the case had already been dismissed in default. [Para 2]
As the strong remarks were wholly unjustified the High Court thought it proper and in the interest of justice to call for the original record of the criminal case in which the counsel for plaintiff was busy. It is open to the High Court to take judicial notice of the fact as recorded in judicial proceedings. [Paras 8 & 12]
(6) Civil P. C., 1908 - O.9, R.8 - Civil Court Rules-dismissal of suit for default during recess period-is illegal.
Sub-rule (2) of rule 1 of the rules framed under the Constitution or India read with section 23 of the M. P. Civil Courts Act, 1958 (the Civil Court Rules) provides for a recess not exceeding half an hour. Dismissal of a suit in default during this recess period is illegal. [Para 13]
(7) Civil P. C., 1908 - O. 9, R. 9 - sufficient cause-counsel for plaintiff busy in criminal case-is sufficient cause.
The restoration of the suit was prayed on the ground that the counsel of the plaintiff was busy in a criminal case, that he had requested the reader of the Court (as the presiding officer was busy in another case) in the early hours of the day and that at about 3-P. M. when the counsel reached the civil Court the case had already been dismissed.
Held: On these facts, a clear case of sufficient cause was made out. [Paras 10 & 11]
1. This is a revision by the defendant against the order dated 15-3-1966, passed by the II Civil Judge (Class I), Bilaspur, in Miscellaneous Judicial Case No. 39 of 1965, restoring the suit to file (namely, Civil Suit No.3-B of 1965), which had been dismissed in default on 15-9-1965 at 2.20 p.m.
2. The respondent filed a suit for recovery of Rs. 5,500 against the petitioner on the basis of a Chitthi. The relevant hearing was fixed for 15-9-1965 for the purpose of framing issues. On that date, the respondent could not appear in person. Therefore, he had probably instructed his counsel Shri S.C. Bhaskar, advocate to appear. The said Advocate was busy with a committal case, namely, Criminal Case No. 1129 of 1965, in the Court of Additional District Magistrate (Judicial), Bilaspur. The order-sheet dated 15-9-1965 indicates that Shri Bhaskar was representing the accused and evidence in that case was recorded by the committal Magistrate from 11.30 a. m. to 2 p. m. It appears that in the meantime, the hearing of the suit was called and as none was present it was dismissed in default at 2.20 P. M.
3. On the very next day the petitioner's counsel himself filed an application for restoration of the suit to file along with an affidavit wherein it was alleged that the counsel himself was busy in committal proceedings relating to a session trial and when after completing his work in the committal Court he went to the civil Court, he found that the suit had already been dismissed in default. On that allegation he claimed restoration of the suit to file. According to his allegation he had been to the civil Court in the early hours before 11.30 a.m.. As he found the presiding officer busy, he approached Shri Choubey, the court-reader and informed him that he will be busy in the committal proceeding and will come to the civil Court as soon as that work is over.
4. The present petitioner opposed the restoration on the grond that there was no sufficient cause.
5. On behalf of the respondent, evidence was led consisting of the testimony of Shri S. C. Bhaskar, Advocate (A.W. 1), the court-reader Shiv kumar Choubey (A.W. 2) and the respondent himself as (A.W. 3). On behalf of the petitioner he examined himself as his sole witness as N. A. W. 1 to assert himself that the case was called three or four times and thereafter it was dismissed ill default on 15-9-1966.
6. The trial Judge, however, disbelieved the plaintiff's evidence. It was observed that the plaintiff had failed to prove that his counsel was busy in the committal proceedings till 2 P. M. The conclusion of the trial Judge was that upon the material on record, no sufficient cause had been made out by the plaintiff. In spite of that fact the learned Judge held that the Court had ample power to restore the suit in exercise of inherent powers. This is patently incorrect in this connection I may only refer to the pronouncement of their Lordships of the Supreme Court in Manoharlal Chopra Vs. Rai Bahadur Rao Raja Hiralal, AIR 1962 SC 527 wherein their Lordships have laid down that inherent powers are not to be exercised contrary to the specific provisions of the Civil Procedure Code. In that view their Lordships laid down that if the question of stay of a suit was squarely governed by section 10 of the Civil Procedure Code the Court could not in exercise of inherent powers stay such a suit. However, their Lordships also hid down further that if the matter was not squarely covered by the provisions of the Civil Procedure Code and the Court found it necessary to exercise analogous powers in the interest of justice, it could do so in exercise of inherent powers. From that point of view, their Lordships laid down that even apart from rules 1 and 2 of Order 39 of the C.P.C. the Court could grant an injunction staying trial of a suit in exercise of inherent powers. Therefore, what is to be remembered is that the inherent powers of the Court are not to be exercised so as to contravene specific provisio
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
