EXPRESS CABLES PVT LTD Vs. N S MUKHERJEE

JUDGEMENT

(1.) This is an appeal against the order dated 31-7-1980 passed by the Additional Subordinate Judge II, Patna dismissing the application of this appellant filed under Order 9, Rule 9 of the Civil P. C. (hereinafter referred to as the Code), which was an application to set aside the order of dismissal dated 13-2-1980 passed in Title Suit No. 245 of 1976. The said order of dismissal passed in the suit was purported to have been passed under Order 9. R, 8 of the Code. Besides that, that was an application also under Section 151 of the Code.

(2.) The present appellant which was the plaintiff in the suit is a Private limited company and had filed the suit against several defendants, namely defendants 1 1o 5. The suit was dismissed on 13-2-1980 on account of the plaintiff-appellant having not appeared in the suit on that date. It was not only on that date but the plaintiff--appellant was absenting itself from the suit continuously since last several dates i.e. from 26-11-1979. It was ultimately on 13-2-1980, on which date also the plaintiff did not appear and therefore the suit was dismissed for default. The grounds taken by this appellant, the plaintiff of the suit, for its absence during that period was that the plaintiff had entrusted the pairvi of the suit to one of its employees namely. Shri Govind Prasari Shrivastava and that the said Shri Govind Prasad Shrivastava fell ill and remained ill during the period from 15-11-1979 to 20-12-1979. Further case of plaintiff-appellant was that when Shri Govind Pd. Srivastava recovered from his illness he tried to trace out about the pendency of the suit but he learnt that the suit was dismissed for default on 13-2-1980. It. is stated that during that period i.e. after 26-11-1979 the suit was transferred from the court of Additional Subordinate Judge XIII. where it was pending to the court of Additional Subordinate Judge I! but no information about the transfer was given to the plaintiff-appellant and therefore, no step could be taken in the suit and as such it was dismissed for default on 13-2-1980. It was stated in the rejoinder filed by the defendants that the Plea of illness was false and that the plaintiff had voluntarily left the suit and therefore, it was in due course dismissed for default It was further stated that the plaintiff was not prevented from knowing about the transfer of the suit and it was a falsa plea that on that ground he could not take step in the suit. The trial court has disbelieved the grounds taken by the plaintiff-appellant for its absence in the suit during the period. On examination of the evidence, materials and circumstances I also feel that the trial court was right in dismissing the plea of the plaintiff-appellant about the illness and also the Plea taken about not taking steps due to its want of knowledge about the transfer of the suit from one court to another. The Plea of illness was simply flimsy, because it was not a case of a private individual that illness of Shri Govind Prasad Shrivastava could have been material. Shri Govind Prasad Shrivastava is said to be doing Pairvi in the suit as an employee of the Company, and therefore, even if he had fallen ill, the Pairvi could have been done by any other employee of the Company. It has been admitted by Govind Prasad Shrivastava that he did not even apply for leave during the period he was ill, and that makes it doubtful that he was really ill. He has also admitted that he did not inform the Company that he was not taking steps in the suit during that period. This means that his explanation that he was ill during that period and could not take step on that account, does not appear to be true.

(3.) Besides that, that period of alleged illness is very insignificant in the long period of the proceeding in the suit in which period the plaintiff had not taken any step. It appears from the record that it was from 26-11-1979 that no step was taken in the suit on behalf of the plaintiff till 13-2-1980 when it was dismissed for default. The case of the plaintiff-appellant with respect to the subsequent period after the alleged illness is based on the ground that the suit was transferred in the meantime from one court to another and that the plaintiff could not have a track to know the next date fixed in the suit. But on this point there is absolutely no evidence to show that, even after the recovery from the alleged illness Govind Prasad Shrivastava or any other employee of the plaintiff contacted the lawyer or any step was taken to know about the suit. No information-slip had been filed in the suit to have the trace of the next date in the suit. A false story has been Riven by Govind Prasad Shrivastava that he learnt about the suit after his recovery from illness from some one in the Record Room. But his evidence in this respect as A. W. 2 in para 7 is that he had learnt from some one in the Record Room who told him that his suit had been transferred to the Court of Additional Subordinate Judge II. This evidence is very much significant which would go to show that he knew about the transfer of the suit, presumably before it was dismissed for default. He could have, therefore, taken step in the suit even thereafter. But he did not take any step after recovery from his alleged illness on 20-12-1979. It was long after that i. e. on 13-2-1980, alter several dates, during which period the plaintiff continued to be absent in the suit, that it was dismissed for default on 13-2-1980, The evidence of Govind Prasad Shrivastava in para 7 is that even after recovery from illness he did not consult his lawyer about the suit. Therefore, from the evidence and circumstances the plea taken by the plaintiff-appellant that it was on account of the case having been transferred to another court that it could not take step in the suit, cannot for any moment be accepted. It may be noted at this place that it was even from before the date of transfer of the suit from one court to another, that is on 26-11-1979 also the plaintiff was absent from the court. Therefore on consideration of the evidence and the materials it is clear that the learned trial court has rightly rejected the grounds of explanation that the plaintiff-appellant had given for not having taken step in the suit during the entire period and ultimately on 13-2-1980 when it was dismissed for default.