At, In the High Court of Bombay at Aurangabad
By, THE HONOURABLE MR. JUSTICE P.V. KAKADE
Shri P.M. Shah, Sr.Counsel, h/f Shri.Parag Barde, Advocate for appellant. Shri S.V. Advant, Advocate for respondent No.1.
Shri A.S. Deshmukh, Advocate for respondent No.2.
Heard the learned counsel for both the parties.
2.This is an appeal preferred against the order passed by the trial court dated 28-02-2003 dismissing the application for restoration of the suit of present appellant-plaintiff which came to be dismissed for default on 09-07-1999. The Special Civil Suit No.190/1989 involved contractual liabilities between the parties and also involving huge monetary stakes to the extent of Rs.37,00,000/- and above.
3.Initially, it may be noted that in this appeal State Bank of India is joined as a party respondent No.2 though the said party is not party to the suit between the plaintiff and the defendant No.1. It appears that the State Bank of India was joined as a party only as a proper party as property involved is under attachment of the said bank. However, no relief is claimed against the bank.
4.The petitioner had filed special civil suit No.190/1989 against the defendant for specific performance of contract which was pending before the lower court and the stage of the suit was for recording of evidence and it was posted on 09-07-1999 where the plaintiff, defendant as well as their advocates remained absent and hence the suit came to be dismissed for default.
The appellant has sought to make out the case to the effect that he was out of station from 30-06-1999 to 07-07-1999 as he was attending some relatives at Chennai. He returned on 07-07-1999. Thereafter, he was busy in receiving Gurumaharaj Acharyashree Pujya Shimuniji Maharajajisab at Waluj on foot. He returned back to Auranagabad on 08-07-1999 where social function of their Samaj from 9 to 11th July 1999 was scheduled and was attending the same as Acting President of his Samaj. It is stated that on 09-07-1999 there was a function in Mahavir Bhawan sponsored by Jain Shrawak Sangh for the purposes of handing over medicines and articles for Kargil Jawans. The suit was posted on the same day and petitioner was busy in the above activities and therefore could not inform and contact his advocate. The counsel for the petitioner was out of station and not available on that day and as such, the application for adjournment could not be filed and hence the suit came to be dismissed for default. It is the case of the petitioner that non attending the matter on fixed date by the petitioner was not intentional but due to unavoidable circumstances and taking into account stakes involved in the dispute and the fact that absence was for sufficient ground, the order for dismissal of the suit was sought to be set aside.
The defendant vehemently challenged the application denying all allegations and putting the plaintiff to strict proof of the allegations. The learned trial judge after hearing both the parties came to the conclusion that grounds given by the plaintiff was not sufficient within four corners of the relevant rule of law and therefore dismissed the application with costs. Hence the appeal.
5.At the outset, both the learned counsel took me through the relevant record. It was submitted on behalf of the appellant that the fact that he was busy in attending of Samaj function is not disputed and amply proved sufficient ground to hold that dismissal of the suit was not justified. On the other hand, it was submitted on behalf of the respondent-defendant that there is absolutely no ground to reconsider the order passed by the trial court as it is just, legal and proper, in view of the given circumstances and documents of the entire dispute which is pending for more than 10 years and as such, the order was sought to be confirmed.
6.In this regard, it may be noted that the documents produced on record including invitation pamphlets which shows that on 09-07-1999 the plaintiff was to attend the function at 9 a.m. The plaintiff's name is also shown in the said pamphlet as President of Shrawak Sangh and therefore it needs no explanation at all to gather that he was required to remain present in the said function. The record further shows that unfortunately his advocate was also not present in the court and as a result of which adjournment application could not be given and suit came to be dismissed. The learned trial judge was of the view that when the stakes are as high as around Rs.37,00,000/- and when the matter was pending for over 10 years and for a long time for evidence, the plaintiff should have shown his diligence and his punctuality in pursuing the remedy. When in case at hand he found most careless and negligent in attending the court and following up the progress of the suit and therefore, the learned trial judge has observed, that lenient view is not possible in the fact and circumstances of the case.
7.I prefer to disagree with this view. In my considered view, the price of involved stakes and long pendency of the matter could not be conclusive factors in order to determine whether sufficient cause exists or not though such aspects would be said to be ancillary while considering the aspect. However, basic aspect is whether absence of plaintiff on 09-07-1999 was for valid reason and therefore constituted sufficient cause within meaning of provision of Order 9 Rule 4 of the Civil Procedure Code. The fact that appellant was busy in function on 09-07-1999 is amply proved on record. It is also not denied that his advocate was also out of station and therefore could not give any adjournment application in the court, as a result of which the matter came to be dismissed. The learned counsel for the respondent-defendant submitted that the plaintiff could at least inform the concerned advocate or his juniors to attend date but it was not done which shows negligence on the part of the plaintiff. However, the fact remains that ground for which the plaintiff remained absent appears to be reasonable and sufficient in order to satisfy the judicial conscience to hold that absence was for valid ground and therefore, suit should have been restored to the file setting aside the dismissal order.
8.In the result, the appeal is allowed. The order passed by the 2nd Joint Civil Judge, Senior Division, Aurangabad dated 28-12-2003 is hereby set aside and Special Civil Suit No.190/1089 is restored to the file on condition that the appellant-plaintiff shall pay cost of Rs.5000/- (Rs.Five thousand only), out of which Rs.2500/- shall be donated to the State Legal Authority and remaining R
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s.2500/- shall be paid to the respondent-defendant No.1. No relief is claimed against the respondent No.2 and therefore cost of this appeal of respondent No.2 shall also be paid by the appellant. Further, it is directed that both the parties shall appear before trial court on 12th February 2007 so as to prosecute the suit further. The learned trial judge is directed to expedite the hearing of the suit and complete the adjudication as early as possible, for which purpose, both the parties shall co-operate the learned trial judge. With this order, the appeal stands disposed of, with no order as to costs. Consequently, Civil applications also stand disposed of, with no order as to costs.