MUNISWAMI GOUDU Vs. JUNJADU ALIAS MUNI ELLUGUDU

JUDGEMENT

(1.) In this case the plaintiff failed to appear in the District Munsif s Court on the day which had been fixed for the hearing of the suit, but the District Mansif found that the defendant was there. The defendant had, by his pleadings admitted *he execution of the bond on which the suit was brought and had admitted receipt of the principal sum made payable under it, but pleaded that by an arrangement he was allowed to work for a long period of years without wages under the plaintiff and in that way he had extinguished the, whole debt except Rs. 10. In those circumstances the District Munsif acted under Order IX, Rule 8, of the Code of Civil Procedure. He gave a determination to the effect that the plaintiff should have a decree for Rs. 10 and that his suit as to the remainder should stand dismissed.

(2.) It is contended before us for the respondent that the latter part of the determination was not a decree, although the former portion of it admittedly was, but was an order and nothing more, and that accordingly Rule 9 of Order IX had to be availed of, where a special procedure is enacted giving a special remedy of setting aside orders dismissing suits for default of the plaintiff s appearance. That looks plausible, because Rule 9 says: "Where a suit is wholly or partly dismissed...the plaintiff shall be precluded from bringing a fresh suit.... But he may apply for an order to set the dismissal aside", and so forth. That undoubtedly leads to the conclusion that the dismissal under Order IX, Rule 8, is to be treated as a dismissal for default whether it be of the whole, suit or part of it, and in neither case is it to be regarded as a decree. Reference is, made to the definition in Section 2 of a decree which expressly excludes any order dismissing a suit for default, As I say, that is a tempting view of the matter, but I cannot bring myself to think that the same adjudication, the same document, can be, as to a part, a decree and as to another part of it, something else. It appears to me that so soon as you have a decretal portion of a pronouncement of a Court of Justice, the whole of the pronouncement is a decree and must be so treated. I, therefore, treat it as a decree within the meaning of the Code. That being so, there is a right of appeal.

(3.) Another point that arose was this. It was argued that the earlier portion of the word in Rule 8 "unless the defendant admits, the claim, or part thereof," applied here and, this was a case of admitting a. claim, reserving a right which was, either to be considered as a set-off or a counterclaim, and was not a case within the Rule of admitting a part of a claim, because it was said the defendant admitted the whole claim subject to his right to recoup himself in some other form. I do not think that is correct. I think that the words "admits the claim or part thereof" apply to a case where, on examining the plaint and the defendant s admissions in the written statement, it can be considered that, he, there and then, agreed to pay the money or to submit to the relief claimed in the plaint. I am confirmed in that opinion by the decision in Armour, v. Bate (1891) 2 Q.B. 233 : 60 L.J.Q.B. 433 : 65 L.T. 137 : 39 W.R. 546 a determination by a very strong Court on Order XXXVI, Rule 32, of the Rules of the Supreme Court which corresponds to the rule we, are considering. However, whether that view is right or wrong does not matter, because in the special circumstances of this case I am not prepared to say that the plaintiff should not be allowed on the merits to come up on appeal here, because I see the suit proceeded with a rapidity which for this country must almost be regarded as dazzling. The plaint was filed on the 18th June the hearing and the whole determination of the matter took place on the 30th and I think it may very well be that the plaintiff and his legal advisers had no time to make themselves ready with their case I always take the view, whenever I possibly can, that a plaintiff ought not to be shut out from the judgment seat where costs will afford a sufficient protection to the defendant as against the plaintiff who is guilty of some technical error or mistake. This is not a case of a plaintiff who allows litigation to drag on and constantly applies for adjournments, a thing with which we are so familiar. As I said, any remissness on the part of the plaintiff in this case may be taken to be amply cured by the payment of costs. We set aside the judgments of both the Courts below and send back the case to the Court of first instance for being tried and disposed of according to law. The plaintiff will pay the whole of the costs incurred by the defendant up to date. Seshagiri Aiyar, J.