SIB GULAM SAO Vs. SYED BASHIRUDDIN

JUDGEMENT

(1.) The plaintiffs, who are opposite party in this Court, brought a suit for realisation of rent against the petitioner on bhowli baste in respect of certain lands held by the petitioner as tenant. The claim was for the years 1358 and 1359 Fs. The petitioner pleaded that no rent was paid for the years in suit because the plaintiffs-opposite parties were not entitled to claim rent on bhowli basis, but according to the rate fixed in the rent commutations schedule by the Rent Commutation Officer under Section 40 of the Bihar Tenancy Act. It appears that on the 12th June, 19b4, the suit was called on for hearing and no one appeared in the Court on behalf of the plaintiffs. The learned Munsif, who tried the suit accordingly, passed a decree in terms of Order 9, Rule 8, Code of Civil Procedure, in favour of the plaintiffs according to the admission of the defendant. Some time after the passing of the order, however, a petition was filed on behalf of the plaintiffs under Order 9, Rule 9, Code of Civil Procedure, intimating to the Court that the Karpardaz of the plaintiffs was busy getting a petition for time typed so that he could not appear in Court when the suit was called on for hearing. The learned Munsif on a consideration of the grounds for non-appearance in time passed an order under Order 9, Rule 9, Code of Civil Procedure, allowing the prayer of the plaintiffs for the rehearing of the suit. The defendant has come to this Court against the order of the learned Munsif which was passed on the 13th September, 1954.

(2.) It has been contended on behalf of the petitioner that the order passed by the learned Munsif was beyond jurisdiction as the learned Munsif passed a decree on the admission of the petitioner according to the rate fixed in the rent commutation schedule. The case, therefore, was not one of dismissal of the suit for default of appearance of the plaintiffs but one where a decree was passed, and as such the proper remedy for the plaintiffs was to file an appeal against the decree and not to apply under Order 9, Rule 9 which has no bearing in a case where a decree has been passed. Learned counsel relied upon the decisions in the case of Maharaja of Burdwan v. Rakhal Chattoraj, 16 Cal LJ 559 (A) and in the case of Muniswami Goudu v. Junjadu, AIR 1917 Mad 732 (2) (B). What happened in both these cases was that an appeal was preferred by the aggrieved party who was plaintiff; and in the Calcutta case the lower appellate Court had declined to entertain the appeal on the ground that the proper remedy would be one under Order 9, Rule 9, Code of Civil Procedure, and not by way of an appeal. Their Lordships of the Calcutta High Court, however, held that the view of the lower appellate Court was wrong inasmuch as once a decree is passed, even for part of the claim admitted, there is a decree and it cannot be said that it was a case of an order of dismissal for default pure and simple within the meaning of Sub-section (2) of Section 2 of the Code of Civil Procedure. Consequently, it was held that an appeal against the decree was competent. In the Calcutta case also, the position, therefore, was identical with the position in the present case. In Muniswami's case (B) also the claim was partly admitted and the plaintiff had failed to appear and a decree was passed to the extent of the claim admitted by the defendant. It was contended in the Madras case (B) that there was a decree no doubt in so far as the claim of the plaintiff was allowed, but in so far as it held that the suit was to be dismissed it was not a decree and, accordingly, the only remedy open to the party, namely, the plaintiff, was to avail himself of the procedure of Order 9, Rule 9, Code of Civil Procedure, Coutts Trotter, J. regarded the arguments as a tempting view and yet his Lordship rejected it. The view taken was that as soon as it appears in a case that there is a decree allowing the claim of the plaintiff in respect of a portion and there is a pronouncement of the Court of Justice, the whole of the pronouncement becomes a decree and must be so treated, and accordingly it was held that an appeal Was competent against the whole order as such. None of the cases, however, lays down that remedy under Order 9, Rule 9, Code of Civil Procedure, is not open to the plaintiff where only a part of the claim is decreed and the remainder is dismissed in terms of Order 9, Rule 8, Code of Civil procedure. Learned counsel for the petitioner failed to bring to my notice any decision to that effect. It appears clear, therefore, that although the remedy by way of appeal in such circumstances may be open to the aggrieved plaintiff it does not debar the plaintiff from taking recourse to the remedy provided in Order 9, Rule 9, which in terms says 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. In the present case such an application was filed and the Court was satisfied that sufficient cause was made out for non-appearance of the plaintiff's. In my opinion, therefore, there was no irregularity in the exercise of Jurisdiction by the learned Munsif in allowing the prayer of the plaintiffs for restoration of the suit.

(3.) Learned counsel for the petitioner, however, urged further that although it may be true that where a claim is partly admitted and the suit is decreed on such admission Order 9, Rule 9, may be available to the plaintiff in respect of the claim: made by him in the plaint and disallowed by the order under Order 9, Rule 8, the present case is one where such a remedy is not open to the plaintiff, because the defendant admitted not only a part of the claim but the entire claim in so far as he stated that rent was in arrears in respect of the suit land for the years in question, but it was payable only on the basis of the rent commutation schedule and not on bhowli basis. Such an admission amounts to admission of the whole claim, and decree being passed in respect thereof it cannot be construed to be a case where only a part of the claim of the plaintiffs is admitted by the defendant. An argument of this character was also advanced in Muniswami's case (B) referred to above, although for a different purpose, and Seshagiri Aiyar J, observed on the point as follows: