1977 Supreme(MP) 203

IN THE HIGH COURT OF MADHYA PRADESH
M.L. MALIK, J.
Pyaribai and others - Petitioners
Versus
Manmochan Singh Chouhan and another - Respondents
C. Revn. No. 203 of 1975 (J)
Decided On : 14-07-1977

Headnote:(1) Civil Procedure Code, 1908 - O.9, R. 9 - Courts should give a generous construction to the provisions of the order - unless applicant is guilty of misconduct, gross negligence or abence is wilful or deliberate - Court should lean towards restoring the suit dismissed in default.

       (2) Civil Procedure Code, 1908 - S. 115 - court taking too narrow a construction to the provisions of Order 9. rule 9 - resulting in injustice to the plaintiff - findings of fact - disturbed.

       Short Note

       1. The revision was directed against the order of the II Civil Judge. Class I Jabalpur, refusing to restore the suit dismissed under Order 9, rule 8 of the Code of civil Procedure in default of appearance of the plaintiff on 13 - 1 - 1971 The order of the civil Judge was confirmed by the Additional District Judge.

       Held; In appreciating the evidence, the Courts have overlooked the pronouncements of this Court that Order 9 CPC. should receive a generous construction and a party should not be deprived of hearing unless he is guilty of misconduct or gross negligence or unless the absence is wilful or deliberate. If the party had been prosecuting the litigation with due diligence and the course of conduct showed that he honestly intended to be present, the Court should generally lean towards restoring the suit dismissed in default. It was obvious that the plaintiffs who had kept witnesses present on the three previous dates, would not deliberately keep them absent on 13 - 1 - 1971. Had the Court taken notice of these facts and examined the evidence in that light the Court would have come to the conclusion that the absence on 13 - 1 - 1971 was very probably due to illness. The doctor who was a disinterested witness would not then have been disbelieved.

       2. Normally, the High Court would not have interfered with a finding of fact but since the Courts below have put too narrow a construction to the provisions of Order 9, rule 9 CPC, which has obviously caused injustice to the plaintiffs, this Court is inclined to interfere. Revision accepted.