DAKSHINAMOORTHI KANDAR Vs. PONNUSWAMI ALIAS KARUPPA KANDAR

JUDGEMENT

(1.) This appeal arises out of an order passed by the learned Subordinate Judge of Salem refusing the plaintiff's application to set aside the dismissal for default of a suit which had been filed in forma pauperis. The application purported to be one made under Order 9, Rule 9 of the Civil Procedure Code. Two objections were taken by the contesting defendants, viz., (1) that the order of the lower Court dismissing the suit was one made under Order 17, Rule 3 of the Code and that consequently no application to set aside the dismissal would lie under Rule 9 of Order 9 of the Code and (2) that in any event there was no sufficient cause which would justify the setting aside of the dismissal. The learned Subordinate Judge overruled the first objection holding that the dismissal of the suit was under Order 9, Rule 8 of the Code, but on the merits he held that there was no sufficient cause and dismissed the application.

(2.) The facts relevant to the determination of this appeal are the following. The application to sue in forma pauperis was made on 2nd September, 1942. It was registered as a suit on 29 January, 1944. Issues were settled on 31 August, 1944. The suit was posted for trial to 17 October, 1944, and adjourned to 20th October, 1944, to be dealt with along with a petition which had been filed. On that date neither party was ready and as older suits were also being tried the suit was adjourned to 15 December, 1944. It was again adjourned to 4 January, 1945, as other suits were being tried. On that date the plaintiff's vakil asked for an adjournment on the ground that the witnesses for whom batta had been paid six days after the date of the last hearing had not been served and that there were also attempts at settlement with defendants 6 and 7. The Court not being satisfied that batta had been paid promptly asked that all the documents should be marked on that date and the plaintiff examined. Thereupon the plaintiff's vakil reported "no instructions." The plaintiff in person then wanted a long adjournment which was refused and thereupon the plaintiff agreed to the case being adjourned to the 5 th January, so that he might engage a vakil and be ready to proceed with the trial. On the 5 January, the plaintiff did not engage a vakil and was not ready to go on with the trial. He presented two applications in person to the Court, one for the examination of a witness, one Mallikarjuna Iyer, on commission and the other for an adjournment of the suit. The Court asked the plaintiff to examine himself, mark his documents and to deposit on the 6 January, the amount necessary for examining Mallikarjuna Iyer, on commission. The plaintiff did not agree and thereupon the learned Judge refused the application for adjournment and dismissed the suit and also the application for the issue of a commission.

(3.) It is obvious that the plaintiff applied to the lower Court for setting aside the order of dismissal of the suit on the footing that that order was passed under Order 9, Rule 8 read with Order 17, Rule 2 of the Code and the appeal before us purports to be under Order 43, Rule 1 (c) of the Code. The short question in this appeal is whether the plaintiff was entitled to make the application to the lower Court under Order 9, Rule 9 of the Code. It would be seen from the facts already set forth that the plaintiff appeared at the adjourned hearing of the suit on the 5th January, and though no formal order of revocation of the vakalat had been made, the vakil had retired from the case on the day previous. On the 5 January, the plaintiff was not in fact represented by any counsel to conduct his case and was a litigant entitled to prosecute his case in person. Indeed, as already observed, he filed the application to examine a witness on commission in person. Can it be said in these circumstances that the plaintiff did not "appear" when the suit was called on for hearing so as to attract the operation of Order 9, Rule 9 of the Code? In my opinion, the plaintiff appeared at the hearing and the dismissal of the suit was not under Rule 8 read with Order 17, Rule 2 of the Code.