MT JAFRI BEGAM Vs. ASGHAR ALI KHAN

JUDGEMENT

(1.) This is an application in revision made by the defendants to a suit which was instituted by one Asghar Ali Khan. In the first instance 11 May 1934, was fixed for the putting in of a written statement by the defendants. The 22 August, 1934 was then fixed for final hearing. The case was adjourned from that date to 20th November 1934 because the Court had no time to deal with it. On 20 November 1934 the presiding officer was on leave and the suit was adjourned to 4th February 1935. On this date the presiding officer was again on leave and the suit was adjourned to 18 April 1935. Before the hearing on 4 February 1935 the plaintiff had put in an application on 24 January 1935 saying that he was in Government service in Baluchistan and that he had to return to duty and that he could not be present on 4 February. He asked that his statement might be recorded, but his application was rejected. However, as I have already mentioned, there was an adjournment on 4 February because the presiding officer was not able to be present himself. Then on 18 April 1935 the plaintiff was absent. Counsel on his behalf put in an application for adjournment, and that application was refused. The learned Munsif then proceeded to dismiss the suit for default. He also passed an order directing that certain documents put in by the defendants should be returned to them as he was not going to consider the case upon its merits. The plaintiff made an application on 29 April 1935 under Order 9, Rule 9, Civil P.C., for setting aside the order dismissing the suit. The learned Munsif dismissed this application, but there was an appeal to the District Judge and he set aside the Munsif's order and decided that the suit should be restored. It is against the order of the District Judge that the present application is made.

(2.) It is urged that the order dismissing the suit for default in the first instance was not an order passed under Order 9. Rule 8, Civil P.C., read with Order 17, Rule 2 of the same Code, but that it must be deemed to have been an order upon the merits. The explanation to Order 17, Rule 2, Civil P.C., is perfectly clear. It says that no party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader though engaged only for the purpose of making an application. There is no doubt that the plaintiff was represented on 18 April 1935, by an agent or pleader who made an application for an adjournment on his behalf. The plaintiff therefore could not be deemed not to have been present, that is, he could not be deemed to have failed to appear.

(3.) It is obvious therefore that the provisions of Order 17, Rule 2 did not apply and it follows from that that it was not open to the learned Munsif to dismiss the suit under the provisions of Order 9, Rule 9. In cases of this kind it may be, if the adjournment was granted at the instance of the party concerned, that the provisions of Order 17, Rule 3 may apply, but if the adjournment is at the instance of the Court the provisions of that rule would not apply and the position would then be that the suit would proceed as though the party concerned were present. In this case the Court should have proceeded as though the plaintiff was present. The defendants had put in written statements. The Court should have seen what points were at issue between the parties and what facts the plaintiff had to prove. If the burden of proof was upon the plaintiff, as in nearly all cases it would be, the Court should have said that the suit was dismissed because the plaintiff had failed to discharge the burden which had been cast upon him and had failed to justify the passing of a decree in his favour. This however was not done. It is obvious that the learned Munsif did not intend to decide the case upon its merits and did intend to dismiss it merely upon the ground that the plaintiff was not present, in other words, to dismiss it for default. The question then arises whether the remedy open to the aggrieved party, that is, to the plaintiff, was the remedy against the order as it stood or a remedy against the order as it should have been passed. In other words, the question is whether the plaintiff's remedy was by way of an application under Order 9, Rule 9 or by way of appeal against a decree. My attention has been drawn to the case in Ram Dulari V/s. Bhola 1935 ALJ 724, and to the cases in Baldeo Singh V/s. Chhaju Singh 1931 ALJ 646 and Manmohan Das v. Krishna Kant Malaviya 1933 ALJ 4.