BANK OF BARODA Vs. SANSAR CHAND KAPUR

JUDGEMENT

(1.) Delay, it is said, defeats justice. Surely. I have noticed something else too. It sometimes wears down even the Advocates with the result that when exposition is expected at some length, the arguments end in a whimper, I could easily discern such weariness in this appeal of 1975. The fire was amiss and so also a lawyers's most effective weapon, the precedent.

(2.) The question raised is as old as the hills. However, let us first hurry through the facts. The suit was dismissed in default. The very next day of that order an application was moved for its restoration and the plea taken was that whereas the counsel was busy in the High Court the trial Judge refused to adjourn the case on the request of his clerk on the ground that he had no authority to appear. The trial Judge recorded the evidence and held that the clerk had not put in appearance and as far as the counsel was concerned his absence constituted no "sufficient cause". The application thus invited the order of dismissal. This was on August 20, 1974. The present appeal against that order was admitted on February 4, 1975.

(3.) Does the absence of a lawyer on the ground that he had some professional work elsewhere, constitute a "sufficient cause" within the meaning of Order 9 Rule 9 of the Code of Civil Procedure? This then is the question In Mukta Devi Panda v. Harish Chandra Panda AIR 1964 Ori 104, the answer was that it may not by itself amount to sufficient cause. In Tulsiram Bhagwandas v. Sitaram Srigopal AIR 1959 Calcutta 389, the court opined that such absence "may not always be a sufficient cause". And, relying upon the said two judgments the Judicial Commissioner of Goa, Daman and Diu opined that such absence for no fault of the party is not necessarily sufficient cause for non-appearance of the party" (see Ananta Pondu Porobo Desai & Ors vs. Smt. Lalita Poi AIR 1975 Goa, Daman & Diu 30). One may also recall the Full Bench decision reporteed in U.Aung Gyi v. Gove. of Burma AIR 1940 Rangoon 162 wherein their Lordships observed that advocates who were engaged in cases which were fixed for hearing at a given time and place cannot be allowed to treat the court before which the hearing is to take place with contumely or indifference, and then apply casually for reinstatement of a suit dismissed in their absence merely because they hoped or believed that they might attend the hearing. They must take reasonable precaution, and the provisions of Order 9, Rule 9 become meaningless if it can afterwards be urged that although none were taken and there was no sufficient cause for their non-attendance, the suit can still be restored to the file, because the litigant would otherwise suffer.