CHAMAJI LAL Vs. SUSHIL CHANDER BHARAL

JUDGEMENT

(1.) S.A.O. 435 of 1968 was dismissed in default on 2nd January, 1969. Neither party was represented in this Court on that day. The appellant has applied for setting aside the dismissal in default and for restoring the appeal to its original number and for its hearing on the merits, this application has been presented under order 41, Rule 19, read with section 151, Code of Civil Procedure. The averments made in this application are as under :-

(2.) Neither in the application for restoration nor in the arguments before me has it been clarified by the learned counsel for the appellant-petitioner whether it .was the counselor the petitiotier-appellant himself who had asked the Reader of this Court about the possibility of the appeal being taken up on 2nd January, 1969. It has also not been specified as to which counsel or party, whose cases were listed above the case in hand in the daily cause list for 2nd January,, 1969, was approached and whether enquiries were made by the appellant himself or by the counsel. The Reader of this Court categorically denies the assertion and, according to him, this is not his practice. In this Court, the clients do not, as a matter of practice, approach the Reader on such points. In any event at 12 noon on 2nd January, 1969, when the Court was in session, it was hardly possible for any one to cause disturbance in the Court by talking to the Reader on a matter like this, as suggested on behalf of the appellant. I am accordingly not impressed by the aforesaid averments in the.application which connot be accepted. This, however, does not mean that if true, they would have necessarily constituted sufficient cause as contemplated by Order 41, Rule 19 of the Code, and I declire, on this occasion, to express any considered opinion on this question.

(3.) An attempt has been made by Shri Mahajan to show, during the course of his arguments that some cases on the daily board on 2nd January, 1969, actually appeared again in the cause list on some subsequent days, and this, according to the counsel, establishes that the present case was dismissed in default without disposing of or dealing with on merits all the prior cases on the list on that day. I have not been able to appreciate or understand the precise submission. If it means that unless all the other cases on the daily cause list for the day in question are finally disposed of on the merits, no case can be legally dismised in default, then this submission must be repelled, When a case on the daily cause list is reached in due course, the counsel or the party, as the case may be, is expected to be present so that its hearing proceeds in accordance with law. The fact that one or more of earlier cases are adjourned by the Court, does not by itself serve as justification in law for the absence of the counsel in the subsequent cases when they are called for hearing in due course. In the event of the counsel being absent, the Court is to exercise its judicial discretion en the facts and circumstances of each case whether to proceed with it or to wait for the counsel and if so, for how long. There is no hard and fast rule of general application and every case poses its own peculiar problem to be solved by the Court in its judicial discretion, making due allowances for normal human failings, but fully ensuring the proper functioning of the Court without undue interruptions and without unduly consuming the time of the Court in only waiting for the parties. This Court, I must point out, is always reluctant to dismiss cases in default too readily and this course is adopted only as a last resort. The question whether a party was prevented from appearing by sufficient cause, has to be considered from a practical point of view by striking a just and proper balance between the legitimate claims of the litigating parties on the one side, in the background of the human imperfection, giving rise to the saying that, to err is human, and on the other side, the duty of the Court to see that all litigants before it are treated equally, and that the quality of the judicial process, including inter alia, the reasonably expeditious disposal of cases, does not suffer. The Courts, it may be borne in mind, have to exercise their functions in a way which fulfils the need for consistency, for equality and for certainty. The judicial administration must be objective and strictly impartial dominated by sense of fairness to all, eliminating every influence proceeding from extra-judicial personal emotions and instinctive prejudices. As observed earlier, the Courts should ordinarily be reluctant to dismiss cases in default too hastily and they would be well advised to wait for a reasonable time so as to expect the lawyers to come from the Bar room if their cases are suddenly called before expected This, however, does not militate against the normal rule that parties to the litigation and/or their counsel are expected to be present when the case is called for hearing so that the Court proceeds with the hearing without being made to wait for unreasonable length of time. This is a duty with the parties and the Courts owe to the judicial process in our Republic.