Sheikh Yaruddin and Others vs B. Das

Meredith, J.—In this application the defendants to a title suit ask for revision of an order allowing an application under Order 9, Rule 9, Civil P.C., by the plaintiff and restoring the suit which had been dismissed for default.

The point taken is that on the learned Munsif s own findings the application should have been dismissed. He did not find the necessary facts upon which an application under Order 9, Rule 9 could have been allowed. Rather, on the contrary, he held that the plaintiff had not shown sufficient cause for his non-appearance when the suit was called on for hearing. Nevertheless, he proceeded to allow the application merely because the plaintiff was a Receiver and he thought the estate which the Receiver represented could not equitably be penalised for the Receiver''s negligence, and justice would be better done by restoring the suit and compensating the defendants in costs. The Munsif''s order, it is said, was not one in effect under Order 9, Rule 9, and could only be interpreted as the use by the Munsif of his inherent powers u/s 151, Civil P.C. He had, however, no jurisdiction to resort to Section 151, when there was a specific provision for dealing with such cases, namely, Order 9, Rule 9.

In the course of his order the learned Munsif did make observations justifying this criticism. He said:

There can be only one opinion that this is a worst case of negligence.... The facts and circumstances of the case justify to me to reject this petition.

He then goes on to say:

It would be against justice and equity if the proprietor is punished for the fault of the Receiver.... I would, therefore, restore the suit on payment of Rs. 50 to the contesting defendants 4 to 6, but I hope this penalty although apparently high will be an eye opener to the Receiver and his staff in future.

It does not, however, necessarily follow that the case is one for interference in revision. The learned Munsif''s criticisms of the plaintiff''s conduct were, in my opinion, quite unjustified. The order-sheet indicates a state of affairs which is, I fear, only too common in the subordinate Courts, and which this Court upon the administrative side has condemned over and over again. The suit is repeatedly fixed for hearing at short intervals when there is no hope or intention of taking it up, and every one concerned really knows it. Routine applications for time are put in upon nominal grounds, and accepted with-out scrutiny. The parties after all can hardly be expected to bring witnesses from a distance perhaps 15 or 20 times, only to have to take them back again. Naturally the parties become somewhat slack. Then at last arrives a day when the Court happens to have some spare time, or suddenly awakens to the fact that the case is about to become year old. It then, without warning, jumps upon the parties and directs them to proceed at once. Naturally they are not ready. They are taken by surprise.

When this happens, it is, of course, the plaintiff who suffers. In the absence of evidence the suit must fail. The defendant is just as unready as the plaintiff. He, however, is in a strong position. He merely has to put in a hasty hazri of some sort, and announces his readiness to proceed. He knows he will not actually have to prove anything, as the suit will be dismissed for plaintiff''s laches.

In the light of these observations let us look at the order-sheet of the case before us. On 14th April 1942, the plaintiff filed the suit, and a substantial court-fee was paid. Then follow two dates on which the plaintiff files hazri; then one date on which the plaintiff takes time. Then follow no less than five more dates on which the plaintiff files hazri. On three of these dates the defendants took time. On the last the defendants filed a written statement. On one of these dates the defendants had been directed to pay Rs. 5 adjournment costs to the plaintiff, this payment being made a condition precedent to the acceptance of the written statement. Nevertheless, the written statement is eventually accepted without the payment of these costs. Next follow no less than eleven dates on each of which both parties apply for time. On the first ten, the order-sheet is written out by the Peshkar and time is allowed, the real reason no doubt being not that there was anything substantial in the applications but that the Court was otherwise occupied. On one of these occasions the date fixed was actually a court holiday. The eleventh date is the 8th of April 1943. The order-sheet is instructive. It will be observed that the suit is about to become year old. Both parties have filed the usual routine application for time. But now appears for the first time in the order-sheet the handwriting of the Munsif himself.

The Munsif writes: "Their petitions for time are rejected as frivolous. Parties to get ready at once." Below appears in the Munsif''s handwriting,

Later 10-15 a.m. Defendants 4 to 6 file hazri. Plaintiff does not take any steps. The plaintiff''s pleader says he has no further instructions. Suit dismissed for default with costs to defendants 4 to 6.

The very day the decree is drawn up and notified, namely, the 12th of April, the rehearing application is put in. Comment is hardly necessary. Both parties were evidently and not unnaturally taken by surprise, but, whereas the plaintiff could do nothing about it, the defendants could risk filing a hazri, which may quite well have been merely nominal. During the year which the suit had lasted, the case had been fixed twenty times. There had been at least one date every single month, and in some months more than one. It would hardly have been humanly possible for the parties to have come ready on each date fixed for hearing. They had some justification for assuming that they were not really expected to do so. I should add that while the suit was filed in April 1942, the defendants did not file their written statement until August 1942, without, as I have said, paying the adjournment costs, and as late as January 1943, after six hearing dates had been fixed, a written statement was put in by some of the defendants and issues were added to the issues already settled. A counter, affidavit has been filed on behalf of the Receiver plaintiff to the effect that in the year 1942 he had to file about 800 suits in the Purnea Courts. The state of affairs may well be imagined if repeated dates are fixed in all these cases, when there is no real intention of taking them up.

There was, in my opinion, sufficient reason for the plaintiff not being ready, and that reason is afforded by the bad system prevailing, productive, as it inevitably must be, of slackness on the part of litigants, and eventual surprise.

In the circumstances the only just and equitable order that could have been passed was the restoration of the suit. It may be useful to indicate the remedies for the state of affairs disclosed. Suits should not be fixed for hearing month after month when there is no prospect of their being actually heard. Only sufficient work should be fixed each day to ensure a reasonable prospect of its being done. The Court itself should watch its diary and see that cases are fixed accordingly. Where necessary, long adjournments should be given without hesitation, to a achieve this purpose. There is no need to be frightened of long adjournments. Better one effective adjournment for six months than six ineffective adjournments of the sort I have been considering. That having been done, if applications for time are put in the order-sheet should invariably indicate that they have really received the consideration of the Court. The grounds put forward for asking for adjournment should invariably be set out in the order-sheet and the Court''s reasons for allowing the adjournment. If the real reason is that the Court has no time, that should be stated.

Lastly, where a suit has unfortunately taken a course like the one under consideration, it should never be taken up for hearing until the parties have been given a sufficiently long and definite warning by the Court that it is really intended to take up the case on the next date fixed.

Interference in revision is always discretionary. The learned Munsif''s order in the present case upon his own findings cannot be supported. Were his findings justified, he ought to have rejected the application. But his findings are not justified, and the order he actually passed was a just order, except perhaps with regard to the amount of compensation which he made the plaintiff pay.

In the circumstances the case is plainly not one where this Court could properly exercise its discretionary powers in favour of the defendants.

The application is, there, fore, dismissed with costs hearing fee one gold mohur.