Kripa Shankar vs State of M. P. - 1977 Supreme(MP) 412

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : N.S. Kale
For the Respondents: A.P. Tare

Headnote:(1) Civil Procedure Code, 1908 - O. 9. R. 9 - suit dismissed in default of appearance - provisions of the order should be given generous construction - unless plaintiff is guilty of mis - conduct or gross negligence - suit should be restored.
       (2) Civil Procedure Code, 1908 - O. 9, R. 9, - trial Court without calling upon the plaintiff to give evidence in proof of his averments - straight way heard arguments and dismissed the restoration application - order bad in law.
       (3) Practice (civil) - affidavit - value of - affidavit filed at the party's own instance - could be looked into as evidence in proof of that fact - trial Court holding that affidavit was perse no evidence - order illegal.
       Short Note
       1. On 18 - 2 - 1974, the suit filed by the applicant came to be dismissed for his non - appearance. The applicant filed an application for its restoration supported by an affidavit. In the affidavit, he said that he was accused in a Sessions Trial and was in the Court of the Additional Sessions Judge when the suit was called for hearing and was dismissed for his non - appearance. His counsel was ill and had not come to the Court that day. The trial Court dismissed the petition holding that he should have kept somebody present to inform the Court to wait.
       Held : In rejecting the appeal, the learned Additional District Judge said that the affidavit was perse no evidence and unless the Court directed any particular fact to be proved by an affidavit the affidavit filed at the party's own instance could not be looked into as evidence in proof of that fact. That being the legal position, the affidavit had to be ignored. Then there was no evidence to fall back upon to give a finding on sufficient cause. Much to regret, too technical and unjust an attitude was adopted by both the Courts below. Firstly, the trial Court did not call upon the plaintiff - applicant to give evidence in proof of his averments but straight way heard arguments. Secondly an affidavit once filed had to be considered for whatever it was worth. The Court could give reasons for accepting or rejecting the statement made thereunder. An affidavit after all was a declaration of facts made in writing and sworn before a person having authority to administer the oath. The fact whether or not the applicant was that day facing a criminal trial, could be verified without much difficulty and if the affidavit was false, the applicant could be prosecuted for perjury. It is reasonable to infer that the applicant would not swear a false affidavit on a fact like this, the truth of which could easily be verified. The affidavit was, therefore, acceptable for the facts sworn therein. The Courts have further overlooked the pronouncements of this Court that the provisions of Order 9, rule 9 of the Code of Civil Procedure should receive a generous construction and unless the plaintiff is guilty of misconduct or gross negligence he should not be deprived of the benefit of Order 9. The question to ask is, was the plaintiff's absence wilful or deliberate or did he honestly intend to attend the hearing. Here was a plaintiff who had attended thirty hearings already and much to his inconvenience, as the order sheets would disclose, the case did not progress due either to the counsel asking adjournments or due to the judge keeping busy with criminal matters or sometimes on leave. The plaintiff had not committed default any time earlier. His bona - fides could not be suspected. Revision allowed.