MANIBALA DASSI Vs. TAMIZUDDIN SAHA

JUDGEMENT

(1.) This Rule is directed against an order of dismissal of an application under Order 9 Rule 9 of the Code of Civil Procedure which has been affirmed by the learned District Judge. Howrah.

(2.) The original suit, namely, Title Suit No. 79 of 1959 was m-ought by the plaintiff, a lady, for setting aside a kobala on allegations of fraud. The date fixed for peremptory hearing of the suit was February 8, 1960. On the 6th of February, the plaintiff tiled a petition for adjournment or, rather, for shifting the date of peremptory hearing on the ground that the lawyer already existing on the record, Shri Jitendra Nath Chowdhury, was unable to conduct her case owing to old age and ill health and that she had engaged a senior lawyer Shri Kanai Lal Ghose for the purpose; but, because Shri Ghose was engaged in other cases fixed on the date of hearing of this case, that is, February 8, 1960, the plaintiff was seeking for a postponement of the date of hearing. On the 6th, nobody appeared to move the petition for shifting the date of hearing and the court put it up for orders on the 8th. On the 8th, Shri Ghose appeared and moved the petition which was, however, refused and the court directed that the suit should be heard on the merits later in the day. But Shri Ghose did not appear again, nor did any other lawyer appear on behalf of the plaintiff and the suit was, accordingly, dismissed for default. The petition of the plaintiff under Order 9, Rule 9 of the Civil Procedure Code for setting aside the order of dismissal for default was dismissed by the learned Munsif on the ground that "neither the plaintiff nor her lawyer Jiten Chowdhury had any sufficient or even reasonable ground for not appearing before the court when the case was taken up for hearing". As regards Shri Ghose the observation of the learned Munsif is as follows:

(3.) I would have been happy to agree with this observation for, tro court should encourage adjournments on flimsy grounds. But to approach a case on a priori considerations such as this is likely to lead to gross injustice and in the refusal of justice to deserving cases rather than to suppress flimsy excuses. We have, therefore, got to decide whether the facts of this case warrant such a reflection.