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M/s. Benz Automobiles Private Ltd, Represented by Power of Attorney Holder C.V. Johny versus K. Abdulla

    SA No. 846 of 2001 (A)

    Decided On, 10 November 2016

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. HARILAL

    For the Appellant: Gopakumaran Nair, C.S. Dias, Advocates. For the Respondents: R1, Sergi Joseph Thomas, Advocate.



Judgment Text

1. The appellant is the plaintiff in the Original Suit as well as the appellant in the First Appeal. The Original Suit was one for recovery of money. According to the plaintiff, an amount of Rs. 36,666.56 was due from the defendant to the plaintiff company. The defendant has filed a written statement contending that the claim was barred by limitation. However, the suit was listed for trial to the first day of September, 1999. When the case has come up for trial, the plaintiff filed I.A. No.3487/1999 seeking replacement of the original Power-of-Attorney Holder by a new Power-of-Attorney Holder. Besides, the plaintiff has filed two other Interlocutory Applications. One to call for some records of a criminal case from a criminal court and another was to amend the plaint. Since those applications were highly belated and the plaintiff has not given prior notice to the other side, the trial court dismissed all the Interlocutory Applications and dismissed the Suit for default.

2. Feeling aggrieved, the plaintiff preferred an appeal before the lower appellate court. After considering the entire circumstances, under which the plaintiff was constrained to file the aforesaid Interlocutory Applications, the court below arrived at a finding that even though the delay in taking steps and filing the applications is not justifiable, taking a lenient view, the appeal will stand allowed on payment of Rs. 5,000/- as cost before 11.06.2001, failing which the appeal will stand dismissed with cost. The plaintiff has not remitted the cost within the specified time. Consequently, the appeal was dismissed. The legality and correctness of the findings, whereby the original suit and the appeal stand dismissed, are under challenge in this Second Appeal.

3. The questions to be considered in this appeal are the following:-

(i) Was the trial court justified in dismissing the suit for default when the learned counsel for the plaintiff and the Power-of-Attorney Holder of the plaintiff were physically present in court?

(ii) Was the appellate court justified in imposing Rs. 5,000/-, as cost?

4. Heard the learned counsel for the appellant.

5. Going by the judgment passed by the trial court, it is seen that the suit was listed to 01.09.1999 and when the suit has come up for trial on that day, the plaintiff had preferred three applications. One of the applications was to substitute the earlier Power-of-Attorney Holder with the present Power-of-Attorney Holder and the other two applications were filed to call for certain records from the criminal court and also for amending the plaint. It was the finding of the trial court that all these Interlocutory Applications were filed belatedly and there was no sufficient cause for the said delay in filing the aforesaid applications.

6. In appeal, the appellate court again re-appreciated the circumstances, under which the plaintiff failed to produce the aforesaid applications before the commencement of trial. After analysing the Power-of-Attorney, the court below arrived at a finding that the present Power-of-Attorney was executed one year before the date of trial. There was absolutely no justification in filing those three Interlocutory Applications on the listed date for trial without giving prior notice to the opposite side also. The present Power-of-Attorney was dated 23.09.1993. The suit had come up in the list one year thereafter. Long prior to 23.09.1993 itself, the original Power-of-Attorney Holder, who had filed the suit, had retired from the plaintiff firm. Similarly, there was no justification for the delay in filing the Interlocutory Application to call for records from a criminal court only on the listed date for trial. At the time of filing the suit, the plaintiff had made an undertaking that the original documents will be produced immediately. In spite of that undertaking, those documents were sought to be filed only on the listed date for trial. That apart, on the date of trial, an application seeking amendment of the plaint was also filed.

7. This Court is of the view that for the aforesaid reasons, the trial court is justified in dismissing the Interlocutory Applications filed by the plaintiff.

8. Coming to the dismissal for default, going by the impugned judgment passed by the trial court, it appears that when the case was called, neither the plaintiff nor his counsel was present before the court to adduce evidence. The learned counsel for the appellant contended that the plaintiff was present before the court. So, the trial court should not have dismissed the suit for default under Order IX Rule 8 of the Code of Civil Procedure, 1908. I do not find any reason to disbelieve the findings of the trial court, in the absence of any material evidence to the contrary. This Court is of the view that where the plaintiff was physically present before the court on the listed date for trial, but not ready and willing to start trial by giving evidence and sought for adjournment, the trial court is justified in dismissing the suit for default under Order IX Rule 8 of the CPC.

9. Dismissal for default under Order IX Rule 8 of the CPC is a casualty that may occur from the date of first hearing till the date of final hearing after trial. This Court is of the view that mere physical appearance of the plaintiff or his counsel alone before the court is not contemplated under Order IX Rule 8 of the CPC to avoid dismissal of the suit for default. It is implied that the appearance is intended to serve the purpose for which the case is posted on that day. So, if the plaintiff is not ready to serve the purpose or has not taken steps to serve the purpose for which the case is posted, though the plaintiff or his counsel is physically present, the suit can be dismissed for default. When the plaintiff is present; but not ready or willing to give evidence on the date on which the case is posted for trial, the suit can be dismissed for default, unless the defendant admits the claim or part thereof in which decree can be passed on such admission. In short, mere physical appearance before the court by the plaintiff or his counsel alone is insufficient to avoid dismissal of the suit for default under Order IX Rule 8 of the CPC, as the 'appearance' contemplated under the said provision means and intends 'effective appearance' and not a mere 'physical appearance' alone.

10. Even though the lower appellate court was not satisfied with the reasons for not filing the applications, when the case was posted for pre-trial steps, the appellate court has taken a lenient view and remanded the matter to the trial court for fresh disposal on merits on condition that the appellant will deposit Rs. 5,000/- as cost before the appellate court before 11.06.2001. But, the plaintiff failed to deposit the said cost within the specified time. Therefore, the appellate court is justified in dismissing the appeal, on the failure of payment of cost. Thus, I do not find any kind of illegality or improp

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riety in the impugned judgments under challenge. 11. The learned counsel for the appellant prayed for remanding the matter once again to the trial court on payment of cost, within the specified time. I am unable to accept the said prayer, on the reason that the Original Suit was of the year 1998 and it is not just and proper to remit the case once again back to the trial court, after more than 18 years. But, considering the entire facts and circumstances of the case, I find that the plaintiff can be exempted from paying cost. Consequently, the direction to pay cost will stand set aside and this appeal will stand dismissed. In the result, this Second Appeal is dismissed, as above. All pending Interlocutory Applications, in this appeal, will stand dismissed.
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