T. Muthaya Pillayan vs Commr., Madras Hindu Religious and Charitable Endowments, Madras

Govinda Menon, J.—This is an appeal against an order refusing to set aside the dismissal of a suit for default. The suit which had been filed

in the District Court of Tirunelveli had been transferred to the Sub Court and numbered as O. S. No. 131 of 1951 on 5-10-1951. Naturally, the

first hearing could be not far off. Therefore it was posted for trial to 10-1-1952. On that date, the plaintiff filed the documents, Exs. A-1 and A-2

and the case was still further adjourned for hearing to 24-1-1952. On that date the plaintiff did not appear and his counsel reported no instructions.

The learned Judge dismissed the suit for default. An application was filed by the plaintiff to set aside the dismissal for default, under Order 9, Rule

9, Civil P. C., and that application which had been dismissed on the ground that it is not maintainable, has given rise to this appeal.

The learned Judge after quoting from the decisions in -- ''Pichamma v. Sriramulu'', AIR 1918 Mad 143 (A); -- Arunachallam Chettiar Vs.

Sivalingam Chettiar, and -- N. Govindarajulu Naidu Vs. The Imperial Bank of India, by Agent Mr. D. Stewart, , came to the conclusion that the

provision of law applicable to case like this is Order 7, Rule 3, Civil P. C. and not Order 17, Rule 2 or Order 9, Rule 9, Civil P. C. We do not

agree with the learned Judge. The mere fact that on 10-1-1952 the plaintiff filed two documents would not bring the case within Order 17, Rule 3,

Civil P. C., in that the party has been granted time to produce evidence or to cause the attendance of witnesses. What really happened was that

without any proceedings being gone through, the suit was automatically adjourned though two documents were filed and no witnesses had been

examined. In our opinion the proper provision applicable is Order 17, Rule 2, Civil P. C., which relates to the hearing of the suit being adjourned

to a particular date and on that date the plaintiff failing to appear. If that is the contingency, then the proper provision of law Is that applicable under

Order 9 and that is what the plaintiff has done in this case. In our opinion the decisions on which the learned Judge relies have no relevancy to the

present case. If Order 17, Rule 2, Civil P. C., applies, then it is open to the Court to set aside the dismissal for default for sufficient cause. Though

Mr. Venkatadri for the respondent, the Commissioner, the Hindu Religious and Charitable Endowments, contended that no sufficient reasons have

been shown by the plaintiff for his non-appearance on 24-1-1952, we are not satisfied that his contention is correct. The learned Judge, in fact, has

not come to the conclusion on the materials that the plaintiff did not have sufficient reasons. The phrase ""sufficient cause"" which occurs in Order 9,

Rule 9 or Rule 13 is elastic enough to include situations like the present where the plaintiff says that on account of the death of his grand-child and

his illness he could not attend the Court in time. We therefore feel that the order of dismissal for default. should be set aside and that order is

hereby set aside. But the plaintiff should pay the costs of the respondent the Commissioner, the Hindu Religious and Charitable Endowments,

Madras, both in this Court and in the Court below and bear his own.