KULAMONI BARIK Vs. LOKENATH MOHAPATRA

JUDGEMENT

(1.) It is a defendants appeal in a suit for enforcement of two mortgages executed by the father of the appellants on 13 September 1929 and 28 September 1929 for considerations of Rs. 110 and Rs. 100 respectively. The plaintiff had filed a suit previously for enforcement of the terms of the mortgages being suit No. 883 of 1940 in the Second Munsif's Court, Cuttack. That suit had been set down for hearing on 13 December 1941. There were no steps taken on behalf of the plaintiff on that date nor did either the plaintiff or his pleader respond to the call of the Court. The defendants had applied for time on the ground of illness, In these circumstances, the suit was dismissed for default. The order disposing of the suit reads as follows: Defendants 2 and 3 apply fat time on the ground of illness and plaintiff takes no steps. Plaintiff and his pleader do not appear on call. The suit is dismissed for default. Defendant 1 of that suit was the executant of the mortgage bonds and has since died, and it may be noted that he did not enter into contest in the previous suit. The plaintiff of the previous suit filed an application for restoration but failed. He then took return of the bonds and filed the present suit on 12 September 1942, being a suit on the self-same cause of action. The defendants-took up the plea that the suit was barred under the provisions of Order 9, Rule 9, Civil P.C. Besides, they had taken pleas of denial of the plaintiff's right to enforce the mortgage as they were without considerations and not supported by legal necessity. The learned Munsif dismissed the plaintiff's suit holding with him on the merits; but refusing his contention that the previous suit had been dismissed for default of both parties under Order 9, Rule 3 and that he was entitled to bring a fresh suit according to the provisions of Order 9, Rule 4. The plaintiff took up an appeal and the learned lower appellate Court decreed the plaintiff's suit reversing the learned Munsif's view that the dismissal was not one for default of both parties.

(2.) The learned Sub-judge has relied upon three decisions of the Patna High Court, namely, Lalji Sahu V/s. Lachmi Narain Singh A.I.R.1918 Pat. 351 Muhammad Bakar Ali V/s. Chullai Mahaton and Ors. A.I.R.1920 Pat. 589 Mahanta Damodar Das V/s. Raj Kumar Das A.I.R.1922 Pat. 485 and has declined to rely upon Bajit Lal Pathak V/s. Rameshwar Singh Bahadur A.I.R. 1928 pat. 335.

(3.) The only controversy that has to be adjudicated in this case is whether in the circumstances, the former suit had been dismissed for default of both parties. The answer depends upon when can a party be said to have appeared and when not, within the meaning of Order 9, Rule 8 or Order 9, Rule 3, as the case may be. Mr. Mohapatra has contended that the appearance has been defined in Order 5, Rule 1 (2) where it is stated that a defendant to whom a summons has been issued under Sub-rule (1) may appear either in person or by a pleader duly instructed and able to answer all material questions relating to the suit. Quite apart from the facts of the case, I am not willing to accept that this Sub-rule (2) defines the word appearance . The words appear or appearance as they occur in several rules of Order 9 of the Code have been used with reference to the plaintiff as well as the defendant. Sub-rule (2) here talks of defendant only. That is simple reason why this cannot be said to mean the definition of the words appearance or appear in general. Whether a party appears in a suit or not will depend upon various circumstances and its meaning may accordingly vary. Substantially it means that when a party is ready to do something or other in relation to the progress of the suit, he shall be taken to have appeared. Mr. Mohapatra's contention is that appearance must mean complete readiness to proceed with the hearing of the suit . This is far from correct. It will all depend upon the stage of the suit and steps that are appropriate at that stage, and what is appropriate for one party may also be ascertained with reference to what the other party has done or is going to do in relation to the progress of the suit. Suppose, the defendant knows that the plaintiff is neither ready to go on with the suit nor to appear upon Court's call either by himself or by his pleader; knowing that he may simply be called upon, comes and responds, and it cannot be in that case said that he had not appeared in the suit because he had not brought his witnesses to be examined.