Allowed

Rajesh v. State of Chhattisgarh

Chhattisgarh HC4 May 2023MA/8/2023

Case brief

AI extract

What is this about?

This appeal challenged the trial court's rejection of an application to restore a suit dismissed for default due to the plaintiff's illness. The High Court held that the plaintiff satisfied the requirement of sufficient cause under Order 9 Rule 9 CPC via medical evidence of obstructive jaundice and allowed the appeal.

What did the court decide?

The impugned order rejecting the restoration application is set aside; the matter is remitted to the trial court to restore the suit to its original number.

Rajesh Vs State of Chhattisgarh — Civil Procedure and Limitation | Chhattisgarh HC (2023)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Order Sheet

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MA No.8 of 2023

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Rajesh Versus State Of Chhattisgarh

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04/05/2023	Shri Anurag Singh along with Shri Rishabh Gupta, counsel for appellant. Shri Raghvendra Verma, G.A. for the State/respondents No.1 to 3. Shri Vivek Tripathi, counsel for respondent No.4. With the consent of learned counsel for the parties, the matter is heard finally. Order dictated in open Court, typed separately, signed and dated.
Tumane	SD/- (Sanjay S. Agrawal) Judge

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MA No.08 of 2023

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Rajesh S/o Vishwanath Aged About 41 Years R/o Village Bhagwanpur Khurd, Tahsil And District Surajpur (C.G.)

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---- Appellant/Plaintiff

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Versus

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State Of Chhattisgarh Through Collector, Surajpur (C.G.)

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General Manager District Industrial Office, Ambikapur, District Surguja (C.G.)

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General Manager District Industrial Office, Surajpur, District Surajpur (C.G.)

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Satish Soni S/o Late Biajnath Soni Aged About 40 Years R/o Village Ajirma, Tahsil And District Surajpur (C.G.)

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---- Respondents/Defendants

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Present:-

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Shri Anurag Singh along with Shri Rishabh Gupta, counsel for the appellant.

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Shri Raghvendra Verma, G.A. for the State/respondents No. 1 to 3. Shri Vivek Tripathi, counsel for respondent No.4.

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Single Bench: Hon'ble Shri Justice Sanjay S. Agrawal

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Order On Board

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04/05/2023

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This appeal has been preferred by the plaintiff under Order 43 Rule 1(c) of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) questioning the legality and propriety of the order dated 01.12.2022 passed by the 2^nd Additional District Judge, Ambikapur, District Surguja in Miscellaneous Civil Case No.43/2019, whereby the

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application filed by the plaintiff under Order 9 Rule 9 CPC seeking restoration of his suit, has been rejected. The parties shall be referred as per their descriptions before the Court below.

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Briefly stated the facts of the case are that a suit was instituted by the plaintiff on 05.02.2016 registered as Civil Suit No.13-A/2016, by submitting inter alia that the land bearing Khasra No.259 was recorded as forest land and the father of the defendant No.4 namely Vishwanath Soni was in possession over 7 & ½ decimal of it while constructing a house and, remaining of its portion was utilized by him for the agricultural purposes. It is pleaded further that a survey was made by the Revenue Authorities, wherein it was found that the father of the said defendant was in possession over two acres of said Khasra No.259 along with other persons and subsequently, the said property was re-numbered as Khasra No.259/17 and that for its allotment, a notification dated 11.08.2016 was issued while inviting objection in this regard. Further contention of the plaintiff was that he purchased the land in question bearing Khasra No.259/17 from the defendant No.4 by paying sale consideration of Rs.80,000/- and was in possession thereof since then and as the defendants No.1 to 3 have issued a notice for his eviction, therefore, he has been constrained to institute a suit in the instant nature claiming issuance of permanent injunction against the said defendants from interference of his peaceful possession.

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The aforesaid claim was registered on 05.02.2016 and, thereafter, a notice was directed to be issued to the defendants while

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fixing the case on 08.03.2016. It appears further that the matter was listed from time to time and vide order dated 06.12.2017, it was directed to be listed on 19.01.2018 for plaintiff’s evidence and on the said date, the suit was dismissed for non prosecution as neither the plaintiff nor his counsel was appeared.

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For restoration of the suit to its original number, an application was made by the plaintiff under Order 9 Rule 9 of CPC by submitting inter alia, that he was suffering from jaundice at the relevant point of time and was taking treatment from local doctors at Ambikapur and could recover from his illness on 30.01.2018. It is contended further that owing to the said disease, his movement was restricted completely, due to which, neither he could appear before the Court nor could have intimated to his counsel and in support of his contention, a medical certificate to this effect was placed on record.

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In reply to the aforesaid application, it was pleaded by defendants that a false medical certificate has been prepared while creating a fictitious cause of his illness and since he was negligent in prosecuting the suit, therefore, the application deserves to be rejected. 6. The trial Court after considering the said application observed in its order impugned that the plaintiff in order to establish his alleged disease has failed to produce any medical certificate, therefore, it cannot be said that due to the said cause, he failed to appear before the Court on 19.01.2018 and, accordingly refused to restore the suit to its original number. This is the order which has been impugned by way

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of preferring this appeal.

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Learned counsel appearing for the appellant/plaintiff submits that the finding of the Court below holding that the medical certificate in support of his treatment and/or illness for his non-appearance on 19.01.2018 has not been placed on record, is apparently contrary to the materials available on record. It is contended by him that the medical certificate has not only been produced by him, but has been mentioned regarding the said fact at para 5 of his said application under Order 9 Rule 9 of CPC as well. While inviting attention to the complete order sheets of the trial Court, it is contended further that right from the institution of the suit, the plaintiff was regularly appearing in the matter, and since he was suffering from Jaundice, therefore, he was unable to attend the court proceeding on the said date and owing to which, he could not inform his counsel and because of that, neither he, nor his counsel could have appeared on the said date. It is, therefore, contended by him that the Court below while adopting the liberal approach, ought to have accepted the cause shown by him while restoring his suit to its original number under Order 9 Rule 9 of the CPC.

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On the other hand, learned counsel appearing for the respondents/defendants have supported the order impugned as passed by the Court below.

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I have heard learned counsel for the parties and perused the entire record carefully.

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Before adverting to the facts in hand, it is necessary to examine the provision prescribed under Order 9 Rule 9 of CPC, which reads as under :-

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Order IX APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

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------ XXX ----

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Rule -9 Decree against plaintiff by default bars fresh suit(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

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(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

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According to the aforesaid provision, if the plaintiff satisfies the Court that he was prevented by “sufficient cause” from appearing when the suit was called on for hearing, the Court shall make an order for setting aside the dismissal upon such terms as to costs or otherwise, as it thinks fit, and shall appoint a day for proceeding with the suit. The expression “sufficient cause” has, however, not been defined in the Code and the Legislature had left its meaning undefined and unillustrated for what is “sufficient cause” in one case may not be so in another case. Thus, the said term is kept elastic and unfettered discretion has been conferred on the courts to do substantial justices considering the facts and circumstances of the case and, no fast and hard rule, therefore, can be laid down regarding the said purpose. The

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sums and substance would be that the discretion has to be exercised judicially and the approach of the court should be liberal and pragmatic, but not pedantic.

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At this juncture, the principles laid down by the Supreme Court in the matter of N. Balakrishnan Versus M. Krishnamurthy, reported in AIR 1998 SC 3222 are to be seen, wherein it has been held by the Supreme Court that sufficient cause has to be construed liberally especially when the delay is not inordinate and malafide. Relevant paragraphs 11 and 12 of the said judgment reads as under:-

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“11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitation newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

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A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. Administrator, Howrah Municipality [AIR1972 SC 749].”

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Similar is the view taken by the Supreme Court in the matter of M/s GMG Engineering Industries and others vs. M/s ISSA Green Power

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Solution and others, reported in AIR 2015 SC 2675 , whereby while interpreting the expression “sufficient cause”, it was observed at para 8, as under:-

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“It is well settled that the expression 'sufficient cause' is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bona fide is imputable to the appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence.”

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Based upon the aforesaid provision and in view of the principles laid down by the Supreme Court in the above-referred matters, the expression “sufficient cause” has to be construed liberally in order to provide substantial justice to the parties unless and until it has been something equivalent to misconduct or gross negligence on his part.

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In the instant matter, what is reflected from a bare perusal of the entire order sheets commencing with effect from 05.02.2016 up to 06.12.2017 that the plaintiff was continuously appearing in the matter through his counsel and only on the said particular date, he failed to appear and the suit was, therefore, directed to be dismissed in default. It appears further that immediately thereafter, an application for its restoration was filed on 31.01.2018 under Order 9 Rule 9 of CPC by submitting inter alia that since he was suffering from Jaundice, therefore, he was not in a position to move and was undergoing treatment of local doctors at Ambikapur and, in order to substantiate

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his said cause, a certificate to this effect was annexed with the said application which reveals the fact that he was suffering from Obstructive Jaundice and was advised to take complete bed rest with effect from 17.01.2018 up to 30.01.2018. It, thus, appears that the plaintiff was prevented from attending the court owing to his said illness as the said fact could not have been controverted by the defendants by way of any cogent and reliable evidence, except by making a bald statement to this effect that it is a forged certificate. Yet, the said application has been rejected by the Court below by observing that the plaintiff in order to substantiate the said cause, has failed to produce any medical certificate, irrespective of the fact that the same was found to be placed on record. It, thus, appears that the Court below in a very casual manner, even without examining the entire record in its proper manner has rejected the same.

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Considering the facts and circumstances of the case, considering further that the plaintiff was continuously appearing in the suit right from its beginning except on the date when the suit was dismissed in default and that by considering further the fact that owing to his illness, as revealed from the said certificate, he could not appear on the said date, I am, therefore, of the view that the plaintiff has succeeded to establish the sufficient cause for his non-appearance from attending the proceeding.

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Consequently, the appeal is allowed and, the order impugned dated 01.12.2022 passed in Miscellaneous Civil Case No.43/2019

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rejecting the application filed under Order 9 Rule 9 of CPC refusing to restore the suit to its original number deserves to be and is hereby set aside and the matter is remitted to the concerned trial Court with a direction to restore the case to its original number and proceed in accordance with law. The parties are directed to remain present before the concerned trial Court on 06.07.2023. The Registry is directed to transmit the record to the concerned trial Court forthwith.

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No orders as to cost.

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SD/(Sanjay S. Agrawal) Judge

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Tumane

Rajesh v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rajesh v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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