NAZRUL ISLAM BOBHUYA Vs. YAKUB CIDDIKIE

JUDGEMENT

(1.) This Civil Revision under Article 227 of the Constitution of India is directed against the judgment and order dated 14.10.2004 passed by the learned Additional District Judge, Shillong in FAO (Misc Civil Appeal) No. 9 of 2003 upholding the order dated 28.11.2003 passed by the learned Munsiff, Shillong, in Title suit No. 14 of 1989 nonsuiting the petitioner by refusing to condone the delay in filing the application restoration of the said suit.

(2.) Upon hearing Mr. K S Kynjing, the learned senior counsel for the petitioner and Mr. H S Thangkhiew, the learned counsel for the respondent and, after perusing the impugned judgment and order and other materials on record, I am of the view that the trial court ought to have restored the suit after condoning the delay. The genesis of the case is the order dated 20.12.2001 passed by the learned Munsiff, Shillong, wherein the dismissed the suit of the petitioner in the following manner : "20.12.2001. Seen the hazira only filed for the plaintiff. The defendant is present. The Plaintiff is physically absence and no step is taken till date. Hence the suit is hereby dismissed on ground of default of the Plaintiff. Cosnequent upon dismissal, this suit stand disposed off." The aforesaid order goes to show that the suit was dismissed in default of the prosecution on the ground that no step was taken by him till date. I have carefully gone through all the orders passed by the learned Munsiff, Shillong on and from 14.5.99 when the case record was received by him after remand from this Court. What step the petitioner was required to take on that fateful day is not exactly discernible from the aforesaid order dated 20.12.2001. On 17.10.2000, the learned Munsiff had already closed the filing of the show cause by the plaintiff against the petition dated 4.7.99 filed by the respondent (the defendant No. 1) for rejecting the written statement filed by the defendant No. 2. As per the record, as on 17.10.2000, it is thus clear that the petitioner was prohibited from filing his show-cause statement against the petition dated 4.6.99 and therefore he was not really required to take any other step. On the other hand, the case was adjourned by the learned Munsiff from time to time from 17.10.2000 onwards not for the purpose of hearing but for production of the record relating to TCA No. 9(H) 89 requisitioned by him from the court of the learned District and Sessions Judge, Shillong. This is borne out by the orders dated 17.12.2000 and dated 20.12.2000. In other words, the undisputable fact is that the date on which the suit was dismissed was not a date fixed for hearing of the suit but for production of the record. The question to be considered then is whether the suit was dismissed in deafult of the petitioner under the provisions of Order IX Rule 8 of the Code of Civil Procedure ?

(3.) Under Order IX Rule 8, it is provided that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. This provision abundantly shows that a suit cannot be dismissed under his provision due to the absence of the plaintiff unless t:he date is fixed for hearing of the suit. Order IX Rule 9 prescribes that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non - appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissing upon such terms as to costs or otherwise as it thinks fit, and shall appoint a date for proceeding with the suit. Therefore, the remedy for the plaintiff whose suit has been dismissed in default under Order IX Rule 8 is provided under Order IX Rule 9. The period of limitation for an application for restoration of a suit which has been dismissed in default under Order IX Rule 8 is prescribed in Article 122 of the Limitation Act, 1963. A cursory look at Article 122 of the Limitation Act will show that the period of limitation of 30 days would run from the date of dismissal of the suit and not from the date of knowledge of the dismissal of the suit. If the suit of the plaintiff was dismissed in default in terms of the provisions of Order IX Rule 8, it is obvious that the period of limitation would expire on 15.10.2001 and the petitioner, having failed to file his application for restoration within 30 days from 15.9.2001, would be precluded from filing such application unless he can explain the delay by showing sufficient cause as provided in Section 5 of the Limitation Act.