SIKANDAR ALI Vs. KUSHAL CHANDRA SARMA

JUDGEMENT

(1.) This Rule is directed against an order of the Subordinate Judge of Cachar restoring a suit which was dismissed for default. The main ground upon which we are asked to interfere under Section 115, Civil P.C., is that the Court had no jurisdiction to restore the suit under Order 9, Rule 9, Civil P.C. What happened was that at the date of hearing which was fixed for 3rd November 1930 the plaintiff filed a petition for adjournment on the ground, as it appears from the subsequent proceedings, that he had engaged two pleaders from Sylhet to conduct his case, one of whom was dead and the other was unable to come to Cachar on that date. The petition was rejected on the ground that there was no sufficient reason for an adjournment. The plaintiff again applied for time on that date and that petition too was also rejected. Thereupon the plaintiff's pleader stated that he had no further instructions to proceed with the case. The learned Subordinate Judge then called the plaintiff and some of his witnesses to the Court-room and put some questions from which he discovered that the plaintiff had engaged some local pleaders also. He accordingly dismissed the plaintiff's suit for default. An application was made by the plaintiff for restoration of the suit and the learned Subordinate Judge restored it under Order 9, Rule 9, Civil P.C., and be also thought that he had power under Section 151 of the Code as well to give relief: to the plaintiff.

(2.) It is argued on behalf of the petitioner that in the circumstances of this case the plaintiff must be taken to be present in Court and therefore Order 9, B. 9 would not apply, There is some amount of divergence of opinion among different High Courts on this point. But so far as this High Court is concerned, and the same view has been adopted in the Madras and Patna High Courts, it is settled that where a counsel appears on behalf of a party and presents an application for adjournment which being refused he retires from the case, the party should be taken as not having appeared in the suit, Satish Chandra V/s. Apara Prosad [1907] 34 Cal. 403 (F.B.) Lalji Sahu V/s. Lachmi Narain [1918] 3 Pat. L.J. 355 T. Kaliyappa Mudaliar v. Kumaraswami Mudali A.I.R. 1926 Mad. 971. A different view has been taken in the Bombay High Court in Esmail Ebrahim V/s. Haji Jan Mahomed [1909] 33 Bom. 475 and Soonderlal v. Goorprasad [1899] 23 Bom. 414. This latter case was disapprovingly noticed in the referring order in Satish Chandra V/s. Apara Prosad [1907] 34 Cal. 403 (F.B.).

(3.) Turning to the Code itself Order 9, Rule 8 says that: where the defendant appears and the plaintiff does not appear when the suit is called on for hearing...