TAFAZZUL Vs. SHAH MOHAMMAD

JUDGEMENT

(1.) This is a plaintiff's application in revision under Section 115, Civil P.C., against an order of the City Munsif of Azamgarh penalising the plaintiff by dismissing his suit because he failed to carry out the order of the Court directing him to file certain documents within the period prescribed by that Court. On 28 November 1946, the plaintiff was ordered to file a mukhtarnama-am within ten days of that day. The mukhtarnama-am was not filed within the time specified by the Court and on 10 December 1946, the Court made the following order which is the subject-matter of this revision : "Papers not filed by plaintiff. Suit dismissed for want of prosecution with costs to opposite party as it is 4-30 P.M."

(2.) The explanation put forward by the plaintiff for the non-production of the document is that the information of this order was communicated to his pleader's clerk and the pleader's clerk failed to communicate this information to the plaintiff.

(3.) A preliminary objection has been taken to the hearing of this revision. It is contended that the order of the learned Munsif dated 10 December 1946 amounts to a decree and was, therefore, an order against which an appeal lay to the District Judge and against which a second appeal was maintainable in the High Court, "Decree" has been defined in Section 2, Civil P.C., and the definition expressly states that a "decree" shall not include any order of dismissal for default. There cannot be the least doubt that the order which is sought to be revised is-an order dismissing the suit for default of prosecution. It is, however, contended by the learned Counsel for the respondent that the word "default" used in Section 2 (2) (b), Civil P.C., means a default of appearance only and does not include a default made in prosecuting the case. The word "default" is not qualified by any adjective and I fail to see why any words should be imported in the section so as to confine its operation to dismissals for default in appearance only. It is a well recognized canon of construction that it is the duty of the Court to interpret a section as it exists without adding to it and without subtracting from it. It is only when a Court can be certain that the language employed by legislature does not represent its avowed intention, if interpreted literally and grammatically, that it can be justified in adding words to or taking out words from the language of the statute in interpreting it. Such is not the case with regard to the legislative provision which requires interpretation in the present case. It has been held per Venkataramana Rao J. in a Full Bench of the Madras High Court in Be N. Kayambu Pillai A.I.R. (28) 1941 Mad. 836, that the word default in Section 2 (2) (b), Civil P.C., need not be confined only to default of appearance, but may include other defaults as well. Similarly, it has been held by a Division Bench of the late Chief Court of Avadh in Jagdish Kumar Singh V/s. L. Harikishen Das A.I.R. (29) 1942 Oudh 365 that the default does not necessarily mean default of appearance, It also includes default of prosecution and that therefore, the order of dismissal for non- prosecution does not amount to a decree. It was further hold that even after a formal decree has been drawn the mere fact that a decree was prepared by the Court will not convert an order, which did not amount to a decree, into a decree. I am in perfect agreement with the two decisions quoted above.