ORDER 9 RULE 4-suit dismissed for non-prosecution-setting aside the order of-‘sufficient cause in Order 9 Rules 4, 7 and 9 of CPC-meaningful construction of-HELD- “Sufficient Cause” should be liberally construed when the absence was not malafide or intentional-the test is whether the absence was bonafide-liberal approach should be adopted by Courts while dealing with an application filed for restoration of a suit or appeal dismissed for Non-Prosecution-Cause shown in the application is accepted.
Revision is allowed.
H.G. Ramesh, J.
1. This revision petition by the plaintiff is directed against the judgment dated 30-8-2003 passed by the lower Appellate Court dismissing his appeal in M.F.A. No. 22 of 2001 and affirming the order passed by the Trial Court dismissing the petition filed by him in Miscellaneous No. 118 of 1995 under Order 9, Rule 4 (should be Rule 9) of the Code of Civil Procedure (‘CPC’) for setting aside of the order dated 18-9-1995 by which the suit in O.S. No. 23 of 1988 was dismissed for non-prosecution.
2. I have heard the learned Counsels for the parties and perused the impugned orders.
3. The case of the petitioner/plaintiff is that he could not be present in Court on 18-9-1995 as he was engaged in a religious ceremony and that his Counsel also could not be present when the suit was called on for hearing as he was engaged in Munsiff’s Court at Chintamani and as such no representation could be made on that day and hence the suit was dismissed for non-prosecution. His absence and his Counsel’s absence was due to the aforesaid bona fide reasons and not intentional.
4. The Trial Court as well as the lower Appellate Court did not accept the cause shown for non-appearance of the plaintiff on 18-9-1995 when the suit was set down for evidence. Hence, this revision petition by the plaintiff.
5. The only question for consideration in this revision is as to whether the petitioner (plaintiff) had shown sufficient cause for his non-appearance on 18-9-1995 to allow the application filed for restoration of the suit?
6. What should be the approach of Courts in such matters?
Obviously, it should be justice oriented. The Supreme Court in G.P. Srivastava v. R.K. Raizada and Ors. , in the context of adjudication of an application filed under Order 9, Rule 13 of the CPC for setting aside of the ex parte decree, has observed that the words “was prevented by any sufficient cause from appearing” occurring in Order 9, Rule 13 of the CPC must be liberally construed to enable the Court to do complete justice. The ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and not for the absence on the previous dates. Where the party approaches the Court immediately and within the statutory period, the discretion should normally be exercised in his favour, provided the absence was not mala fide or intentional. In such matters, the approach of the Courts should not be narrow, technical and unrealistic as it would result in prolonged litigation. It has also been observed that the other side could be compensated by adequate costs and the Us be decided on merits.
The aforesaid principles laid down by the Supreme Court in the context of Order 9, Rule 13 of the CPC, would also apply to adjudication of applications filed under Order 9, Rules 4, 7 and 9 of the CPC. The expressions ‘sufficient cause’ and ‘good cause’ employed by the Legislature in Order 9, Rules 4, 7 and 9 of the CPC are adequately elastic to enable the Courts to apply the law in a meaningful manner to subserve the ends of justice. ‘Sufficient cause’ should be liberally construed when the absence was not mala fide or intentional. The test is whether the absence was bona fide. As observed by the Supreme Court, the other side could be compensated by awarding adequate costs. Ordinarily a litigant will not stand to benefit by remaining absent and getting his suit or appeal dismissed for non-prosecution. Therefore, a liberal approach should be adopted by Courts while dealing with an application filed for restoration of a suit or appeal dismissed for non-prosecution. The Courts should also take all necessary steps to dispose of such applications as expeditiously as possible and preferably within three months.
7. Coming to the case on hand, I find that both the Courts below had failed to make a justice oriented approach. Their approach is contrary to the law laid down by the Supreme Court referred to above. The application for setting aside of the dismissal order was filed before the Trial Court within the statutory period i.e., within 30 days from the date of dismissal of the suit. On the facts of the case, it cannot be said that the absence of plaintiff was intentional or mala fide. Hence, I accept the cause shown as sufficient for the plaintiffs non-appearance on 18-9-1995.
8. In view of the above, I make the following order:
The order dated 31-5-2001 passed by the Trial Court in Miscellaneous No. 118 of 1995 and the judgment dated 30-8-2003 passed by the lower Appellate Court in M.F.A. No. 22 of 2001 are set aside. The application filed in Misc. No. 118 of 1995 is allowed and the suit in O.S. No. 23 of 1988 on the file of the Civil Judge (Senior Division), Chintamani, is restored to file.
Revision petition allowed. No costs.