@JUDGMENTTAG-ORDER
Mohamed Anwar, J.@mdashThis revision by defendant in disposed of O.S. No. 10146/1987 is directed against the trial Court''s order dated 15-4-1999 by which the application of respondent-plaintiff filed under order 9 Rule 9 of the C.P.C. along with LA. No. 1 under S. 5 of the Limitation Act has been allowed setting aside dismissal of the latter''s said suit and restoring it to the file of the Court below for further proceeding and trial.
2. The undisputed facts giving rise to this revision may be stated as follows :
The said O.S. No. 10146/1987 was originally instituted by respondent (hereinafter referred to as ''the plaintiff) on 10-2-1987 against petitioner (defendant) for the bare relief of permanent injunction in respect of the plaint schedule house site. The grounds on which the suit filed were that that defendant who was the owner of the suit site, agreeing to sell the same to the plaintiff, had received considerable amount of sale consideration from him promising to execute in his favour the sale deed with respect thereto and that he put the plaintiff in possession of the site also. On 2-2-1987, when plaintiff went to inspect the suit site, to his surprise, he found that mud excavation was done therein by the defendant for the purpose of putting up a construction thereon. Hence, the suit for permanent injunction against the latter.
3. Written statement was filed by the defendant denying the plaint allegations and contending that he has always been in exclusive possession and enjoyment of his suit house site. It was further contended therein that, in fact, the plaintiff was working in Saudi Arabia and came to Bangalore in March 1985, approached him intending to purchase the suit site, and that agreeing to purchase the same for Rs. 2,12,544/-, he paid him Rs. 50.000/- as advance and earnest money, and executed the sale agreement agreeing to get the sale deed duly executed within three months from 2-4-1985. But, he failed to perform his part of contract by paying the balance of sale consideration despite repeated demands of defendant. When the said contract was thus repudiated by the plaintiff by his conduct, he is not entitled to the relief prayed in the plaint.
4. During pendency of the suit proceeding, LA. No. 3 under Order 6 Rule 17C.P.C. was filed for the plaintiff on 2-4-1988 praying for permission to amend the plaint to incorporate therein the additional relief of specific performance of the suit agreement and further to plead therein the necessary facts in support of this relief. That application was opposed by the defendant. On 9-9-1993 the trial Court allowed it with cost of Rs. 100/- by its separate considered order. The plaintiff was also directed to file amended plaint by 29-9-1993. Plaint amendment was done by his learned counsel on 16-9-1993, as could be noticed from its contents. Thereafter, when the requisite additional Court-fee on the plaint for the additional relief of specific performance was not paid by the plaintiff, an application i.e., l.A.No. 4 under Order 7, Rule 11, C.P.C., was filed on 2-12-1993 for defendant in the suit praying to reject the plaint. Though the trial Court adjourned the case to different dates till 17-2-1994 for plaintiffs objection to said l.A.No. 4, the same was not filed for him. On 17-2-1994, both plaintiff and his counsel were absent. Therefore, the case was adjourned to 9-3-1994 on payment of cost of Rs. 100/- to hear on l.A.No. 4. On 9-3-1994 also both plaintiff and his counsel were absent. The cost of Rs. 100/- on l.A.No. 3 and further adjournment cost of Rs. 100/-imposed on 17-2-1994 were not paid to defendant who was present on 9-3-1994. Nor the said deficit Court-fee was paid on the plaint. Recording these facts, the trial Court proceeded to pass the order stating :
"............ Heard defendant. Hence the relief of specific performance sought by plaintiff is refused. Call on for plaintiffs evidence by 24/3."
5. On the next date of hearing, i.e., on 24-3-1994, both plaintiff and his counsel were absent. Defendant was present. The trial Court was pleased to adjourn the case to 1Q-4-1.994 on payment of cost of Rs. 50/-. On 18-4-1994 also, the plaintiff and his counsel were both absent. The aforestated costs i.e. Rs. 100/-, Rs. 100/- and Rs. 50/-were not paid by the plaintiff. However, the trial Court yet adjourned the case for plaintiff s evidence to 14-6-1994 by imposing further adjournment cost of Rs. 50/- on him. On 14-6-1994 also, the plaintiff and his counsel remained absent. Therefore, the following order dismissing the said suit was passed by the trial Court :
"Plaintiff absent. Cost not paid. Defendant and his counsel are present. Hence suit is dismissed for non-prosecution. No costs."
(Emphasis made)
6. Thereafter, on 15-12-1995, an application under Order 9 Rule 9 C.P.C. was filed for the plaintiff along with LA. No. 1 under S. 5 of the Limitation Act in the said Misc. Case No. 10164/1995 in the trial Court, praying to set aside its said order dated 14-6-1994 and to restore the suit to its file for its further prosecution. The cause, both for default in appearance on 14-6-1994 in the said suit, and also for the delay of about 18 months caused in filing of the application in the said Misc. case No. 10164/1995 given by applicant-plaintiff was the common cause, and it was the alleged negligence on the part of his learned counsel Mr. Shahabuddin Akbar representing him in the suit. In informing him of the dates of hearing in the suit and of the trial Court''s said order dated 14-6-1994 passed dismissing the suit.
7. Defendant, who was respondent in said Misc. Case No. 10164/1995, filed his statement of objections seriously opposing plaintiffs both applications therein i.e.. application under Order 9 Rule 9 C.P.C. and LA. No. 1 under S. 5 of the Limitation Act.
8. The plaintiff-applicant in Misc. case No. 10164/1995 got himself examined as P.W. 1 in support of his said applications. Defendant-respondent also gave his rebuttal evidence as R.W. 1 before the Court below.
9. The learned trial Judge, accepting the said cause both for the said delay and for non-appearance of the applicant-plaintiff in the suit on 14-6-1994, passed the impugned order restoring the suit to its file by setting aside its said order dated 14-6-1994. Being aggrieved, the defendant has now challenged its legality and correctness in this revision.
10. Mr. Mohamed Asif, learned counsel representing defendant (petitioner), attacked the validity and correctness of the impugned order on the grounds (1) that the said cause shown by the plaintiff in support of his said applications in Misc. case No. 10164/1995 is not a valid cause in law and, therefore, the learned trial Judge has gravely erred in accepting it as a just and sufficient cause to allow the said applications; and (2) that the plaintiffs application under Order 9 Rule 9 C.P.C. in Misc. Case No. 10164/1995 was not maintainable in law having regard to the nature of trial Court''s said order dated 14-6-1994 inasmuch as by that order, the plaintiffs suit was dismissed not only on the ground of default in appearance, but also for non-payment of said amounts of adjournment cost to defendant.
Mr. Mohamed Asif, in support of these contentions, placed reliance on the following decisions :
1)
2)
3) M/s. Kaiser-I-Hind-Depot, by its Partner v. G.R. Kote 2 (2000)CCR 957.
4)
11. Mr. Arun Kumar, learned counsel for respondent-plaintiff, on the other hand, argued in support of the impugned order by placing reliance on a short notes item of Calcutta High Court reported at AIR 1988 Cal 45 (Moolchand Chabbra v. Laxminarayan Chabbra), and another decision of Calcutta High Court in
12. Let me first consider whether the Court below is legally justified in accepting the cause shown by the plaintiff for the said delay of over 18 months in filing his application under Order 9 Rule 9 C.P.C. in Misc. Case No. 10164/1995, and in condoning the delay. It has to be noted that LA. No. 1 filed by him under S. 5 of the Limitation Act seeking condonation of delay was not separately considered and disposed of by the Court below on its own merits, before proceeding to hold an enquiry on the plaintiffs said application under Order 9 Rule 9 C.P.C. and the impugned order was passed thereon. This is a patent error on its part. However, as indicated, the cause for this delay as also the cause for plaintiffs non-appearance on the said date of hearing of the suit i.e., 14-6-1994 being shown as the common cause, much cannot be made of this error on the part of the trial Court. In other words, if for any just reason, it is found to be unacceptable and untenable in law, then, necessarily, the impugned order of the Court below cannot be sustained.
13. In the matter of exercise of discretion in condonation of delay, the Supreme Court in
"6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds ..............."
14. The High Court of Calcutta in Moolchand Chabbra v. Laxminarayan Chabbra AIR 1988 Cal 45 (supra), dealing with an application under Order 9 Rule 9 C.P.C., has observed :
"......... Since it was established from the facts of that case the plaintiff had done all that was required of him to do to prosecute the suit; that he had not only engaged an Advocate on record but also engaged two other lawyers to conduct his suit, that at the material time, except the Advocate who appeared on behalf of the Advocate on record, none of the other lawyers were present and the Advocate concerned was not ready to proceed with the suit it has to be deemed that the suit was not disposed of on merits but for non-prosecution. ......."
Evidently, this dictum of Calcutta High Court is not relevant to the case in hand because of distinguishable facts.
15. Adverting to the said cause pleaded by the plaintiff in support of his both applications in Misc. Case No. 10164/1995, it is stated therein that once he was secured by his said learned counsel and the said amendment application was prepared and filed In the suit. Then, the said learned counsel told him to come to the Court below only after he was informed by the counsel. But, thereafter, the learned counsel failed to inform him about any further progress in the suit till 2-12-1995 on which date he (plaintiff) received a telephonic call from his counsel to come to the Court, it was then which the plaintiff went to the Court and to his surprise found that his said suit was already dismissed for default on 14-6-1994. Then, necessary steps were taken by him to get the said application under Order 9 Rule 9 C.P.C. filed in Misc. Case No. 10164/1995 on 20-12-1995 along with said I.A. No. 1 for condonation of delay.
16. In the plaintiffs affidavit filed in support of LA. No. 1, it is further averred that the said O.S. No. 10146/1987 was got filed by him through his advocates M/s S.M. Ahmed & Co. One of the advocates named Mr. Shahabuddin Akbar, who was attached to M/s S.M. Ahmed & Co., left that office taking away along with him the case file of said O.S. No. 10146/1987 and was attending the said case as plaintiffs counsel in the trial Court, the said advocate Shahabuddin Akbar informed the plaintiff that he should attend the Court or his office whenever the said advocate required him to do so. It was he who prepared and filed the said amendment application in the said suit.
17. P.W. 1-plaintiff has given his evidence also in support of the above said cause in the Court below.
18. It transpires from the plaint and P.W. 1''s evidence that he (plaintiff) had been working in the Gulf countries and was living abroad for most of the time during pendency of the said legal proceedings. Further, the so called aforesaid common cause for his non-appearance in the suit on 14-6-1994, and for the delay in filing of the said application in said Misc. Case No. 10164/ 1995 appears from the material on record as a make believe story bolstered by him simply for the purpose of his application under Order 9 Rule 9 C.P.C. The alleged negligence or indifference of his counsel Shahabuddin Akbar in informing the regular dates of hearing to the plaintiff which is sought to be established by him at the trial in the Court below gets fully discredited and demolished by the plaintiffs pleadings and his evidence as well. Because, in his affidavit filed in support of said LA. No. 1, he has specifically sworn to the fact that he was regularly attending his advocate''s office and the trial Court on all the dates of hearing. In paragraph -2 of his affidavit, he swears :
"2. I submit that, I have filed the suit for permanent injunction against the respondent, in O.S. No. 10146/1987 on the file of the Addl. City Civil Judge, through my advocates M/s S.M. Ahmed & Co., and I was regular to the Court as well as to the office of my advocates.. . . . . "
Further, after the said advocate Mr. Shahabuddin Akbar made his office separate from M/s. S.M. Ahmed and Co., the plaintiff states in his affidavit that he stopped going to his office and Court but : "I was taking dates as and when on telephone"; and on one such occasion, the plaintiff wa asked to go over to him to prepare the said amendment application. At paragraph-2 of his application under Order 9 Rule 9 C.P.C., it is stated:
"2. ............ .one day when the petitioner telephoned to his advocate he told him that the amendment application is allowed on costs of Rs. 100/- and requested the petitioner to come and pay the costs, accordingly he went and paid the costs of Rs. 100/- and the advocate informed that the Court will fix the Court fee to be paid and then he will inform about it. ..."
Of course, his further case in the application is that his said counsel failed to inform him about the suit thereafter, except telephoning him on 2-12-1995.
19. In his evidence, PW-1 has stated that he was attending the office of his advocate and the trial Court as well on the respective dates of adjournment in the suit and that after the said amendment application was allowed, he was told by his counsel that he has to pay the Court fee and fine of Rs. 100/ -. In the next breath, he further states that he was not at all informed about payment of Court fee by his counsel. He has admitted, in his cross-examination that on 14-6-1994 he was very much in Bangalore City. He contradicts himself further stating:
"..... .1 don''t know if Sri Shahabuddin Akbar informed me, my wife, and my brother''s-in-law, with regard to posting of the case from time to time. ....."
At another place, he admits:
"......... .1 was writing on the calendar the date of posting of the case from time to time. ....."
20. On scrutiny of the aforementioned relevant material on record we notice that the pleadings in the applications and the evidence of PW-1 materially contradict with each other on the basic point of the common cause for the said delay and for his non-appearance in the suit on 14-6-1994. However, his evidence that he had been regularly telephoning his advocate and collecting the dates of hearing in the suit from him and was noting the same on the calendar, thoroughly discredits the said cause set up by him in support of the said applications.
21. Besides the above, the veracity of this cause gets seriously affected by the fact that in the said O.S.No. 10146/1987, in all four advocates of the office of M/s. S.M. Ahmed and Co, were engaged and had filed vakalath for him. They are, one S.M. Ahmed, Syed Altaf Ahmed, S. Akbar and Syed Zia-ul-Haque. None of these advocates has deposed or filed affidavit corroborating or supporting the plaintiffs case as to the said cause. Therefore, except the self-serving and infirm statement of PW-1, there is no corroborating or independent material whatever on record showing that the said advocate Shahabuddin Akbar got himself separated from the office of advocates M/s. S.H. Ahmed and Co., and established his independent office anywhere and the case file in O.S.No. 10146/1987 of the plaintiff was taken away by him.
22. Apart from above, PW-l''s cause furnished in support of the aforesaid applications suffers from one salient basic infirmity. It is his unnatural and strange conduct pleaded by him of remaining stone silent from 14-6-1994 till 2-12-1995, i.e., for a long period of about 1 and a 1/2 years, without bothering to contact his counsel either personally or over telephone and to ascertain the further progress in the suit, when all the way it was his definite case that till filing of the said amendment application therein, he was regularly attending the trial Court on all hearing dates and was in constant touch with his counsel and also that he was keeping a regular record of the proceedings in the suit. This is a vital intrinsic infirmity which makes PW-l''s version of the alleged cause for default in appearance in the suit on 14-6-1994 and for the said delay of about 1 and 1/2 years as highly improbable and palpably an afterthought.
23. Thus, when PW-l''s version of the said cause pleaded in his said application in Misc. Case No. 10164/1995 is assessed and processed through judicial scrutiny, it inevitably looms large as a make believe story.
24. The aforestated inevitable conclusion of mine fully enjoys the support of the dictum of Supreme Court in the case of Salil Dutta v. T.M. and M.C. Private Ltd. AIR1993 SCW 1178 supra, wherein distinguishing its enunciation pronounced in its earlier decision in
"8. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him are the acts and statements of the principal i.e., the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is not such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq (Arising out of SLP (Civil) No. 11849 of 1992) must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. . ."
25. The Calcutta High Court in S.C. Sons (P) Ltd. v. Brahma Devi, (supra), following the decision of Supreme Court in
26. However, it transpires from the impugned order that the learned trial Judge has been mostly carried away by the fact proved by the plaintiff that his said counsel Mr. Shahabuddin Akbar was reprimanded by the Karnataka State Bar Council by its notification No. 25/1996 dated 28-11-1996 per Ex. P-3 for his professional misconduct. But, admittedly, the said misconduct of that advocate was not in connection with the suit proceedings in plaintiffs O.S. No. 10146/ 1987 and that it had nothing to do whatever with the plaintiffs litigation with the defendant. Merely because the advocate was reprimanded in some other legal proceeding, long after dismissal of the plaintiffs case, does not, by itself, provide sufficient justification to hold that he also so misconducted himself in the plaintiffs suit as to lay the blame entirely on his shoulders. No doubt, the said learned advocate Mr. Shahabuddin Akbar, being the counsel for plaintiff in the said suit, was professionally duty bound to represent the plaintiffs case on the aforestated dates of hearing in the suit viz., 2-12-1993; 17-2-1994; 9-3-1994; 24-3-1994; 18-4-1994; and on 14-6-1994, and that by absenting himself he was guilty of dereliction of his duty towards the plaintiff. But, by this lapse on the part of plaintiffs counsel in performance of his professional obligation towards him does not totally absolve the plaintiff as well of his duty to get himself acquainted with every stage of his suit proceeding in the trial Court and to do the needful by instructing his counsel suitably (vide M/s. Kaiser-I-Hind-Depot v. G.R. Kote, supra). This duty was all the more on the part of the plaintiff since admittedly there was facility of telephonic communication at the residences of both himself and his said counsel and that admittedly he had been in continuous touch with his counsel through this telephone facility and more so, it was not the case of the plaintiff that he was instructed by his counsel not even to contact him on telephone. Therefore, the plaintiff cannot be permitted to reap the benefit of this callous default which normally no prudent man would commit. Therefore, the reprimanding of said advocate by the Bar Council will be of little significance to the plaintiffs case. The learned trial Judge has clearly erred In holding otherwise in the impugned order.
27. Therefore, on the merits of the matter, the Court below should have dismissed the plaintiffs I .A. No. 1 and the application under Order 9 Rule 9 C.P.C. in the said Misc. Case No. 10164/1995. It has gravely erred in allowing the same and as such the first objection of petitioner raised to this effect against the order under revision has to be upheld.
28. The impugned order of the Court below is liable to be quashed on other legal grounds as well which are covered by the second objection of petitioner levelled against the same. As indicated above, in the said O.S.No. 10146/1987, when the plaintiff failed to pay the requisite additional Court fee on the additional relief of specific performance which was incorporated in the plaint on 16-9-1993 after his I.A. No. 3 under Order 6 Rule 17 C.P.C. was allowed by trial Court''s order dated 9-9-1993, LA. No. 4 under Order 7 Rule 11 C.P.C. was made on 2-12-1993 for defendant praying to reject the plaint for non-payment of the said Court fee within time. Despite repeated adjournments granted, the plaintiff failed to file his statement of objections to I .A, No. 4. Nor the cost of Rs. 100/- imposed on allowing his LA. No. 3 was paid to defendant. Consequently, on 9-3-1994. the trial Court passed the aforequoted order refusing the said relief of specific performance for the plaintiff. In effect, by that order, LA. No. 4 was impliedly allowed partly rejecting the plaint in respect of the said additional relief of specific performance for non-payment of requisite Court fee thereon within time, with the result, the plaint stood restored to its original position when it was instituted for the relief of bare permanent injunction. Nonetheless, that order dated 9-3-1994 of the trial Court rejecting the plaint in respect of the relief of specific performance was the one which was falling within the purview of Order 7 Rule 1 l(c) of C.P.C. and it has remained unchallenged by the plaintiff. Then, the plaintiff had to prosecute his suit further only for the relief of permanent injunction. In that view of the binding nature of the trial Court''s said order dated 9-3-1994, the said additional Court fee which was shown to have been paid by the plaintiff in the trial Court subsequently on 10-6-1999 after the impugned order dated 15-4-1999 was passed by the Court below, cannot be a valid payment and the same is of no legal consequence whatever.
29. Another significant legal aspect of the matter is that the course of the proceeding recorded by the trial Court in the order sheet of said O.S. No. 10146/1987, makes it abundantly clear that its said order dated 14-6-1994 passed dismissing the suit for "non-prosecution" and which has been subsequently set aside by its impugned order dated 15-4-1999 in the said Misc. Case No. 10164/1995, was a composite order, in the sense, the suit was dismissed on account of two defaults of separate nature on the part of plaintiff. They are: non-payment of the adjournment costs by him to defendant on 9-3-1994; 18-4-1994; and on 14-6-1994 at Rs. 100/- Rs. 50/-, and Rs. 50/- respectively; and also for non-appearance of the plaintiff and his counsel. Obviously, the first part of this order dated 14-6-1994 entailing dismissal of the suit for non-payment of adjournment costs, was not at all challenged by the plaintiff and he allowed the same to become final and binding on him. By any canon of law, it cannot be assumed or stated that by making an application under Order 9 Rule 9 C.P.C. in the said Misc. Case No. 10164/1995, that order was also challenged by the plaintiff. Because such an order, passed for non-payment of adjournment cost, cannot be challenged or sought to be set aside either under Order IX Rule 9, C.P.C. or under any other provision of Order IX C.P.C. since this Order in C.P.C. exclusively governs the proceeding relating to "Appearance of Parties and Consequences of Non-appearance"; and it has nothing to do with any order of the trial Court made for nonpayment of adjournment cost by a party to the suit proceeding. Conversely, the trial Court has no jurisdiction to entertain an application under any provisions of Order IX C.P.C. to set aside such an order at the instance of a party to the suit. The imposition of adjournment cost and consequence of default in payment thereof by the party concerned is governed by Section 35-B of C.P.C. Sub-clause (b) of sub-section {1} of Section 35-B contemplates that the payment of adjournment cost by the concerned party shall be a condition precedent to the further prosecution of the suit where the plaintiff is a party against whom the cost is imposed, or prosecution of the defence when defendant happens to be such a party. It, therefore, necessarily follows that if the suit is dismissed by the trial Court on account of non-payment of adjournment cost by the plaintiff to the defendant on the next following day of the suit proceeding, then that dismissal order would tantamount to the trial Court''s decree of dismissal against which an appeal by the plaintiff lies, as has been also held by a Full Bench of the Madhya Pradesh High Court in
"22. We are, therefore, of the view that an appeal lies from an order dismissing a suit for default of payment of costs."
The plaintiff having not chosen to challenge that portion of the order by which his suit was dismissed for non-payment of adjournment costs to defendant, the same has also became final and binding on him. As a result, even assuming for a moment that the impugned order of the Court below passed in exercise of its power under Order 9 Rule 9, C.P.C. setting aside the said order dated 14-6-1994 made in O.S. No. 10146/1987 is legally sustainable, then the operation of this order would be limited only to that portion of the order dated 14-6-1994 by which the suit was dismissed for non-appearance of plaintiff, and that it will have no effect whatever as regards that other component part thereof pertaining to dismissal of the suit for non-payment of adjournment costs, with the result, in either way, dismissal of the suit remains effective in law.
3O. Hence, for the aforesaid reasons, the revision is allowed. LA. No. 1 of respondent filed in Misc. Case No. 10164/1995 is rejected, the impugned order of the Court below is set aside and the application under Order 9 Rule 9, C.P.C. filed therein is dismissed as time barred.
Parties to bear their own costs.
