Allowed

T.Prasada Reddy v. T.Sumithramma

Telangana HC21 Aug 2012FCA/56/2012

Case brief

AI extract

What is this about?

Appeal against dismissal of an application under Order IX Rule 9 CPC to set aside an order dismissing a divorce petition for failure of the plaintiff to appear for cross-examination. The High Court held the lower court's restriction on Rule 9 was too rigid.

What did the court decide?

Impugned order set aside; FCOP restored to file; Court directed to proceed within six months; costs of Rs.2,000 awarded.

T.Prasada Reddy Vs T.Sumithramma — Civil Procedure and Limitation | Telangana HC (2012)

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HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA and

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HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY

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F.C.A.No. 56 OF 2012

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DATED 21^ST AUGUST, 2012

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BETWEEN

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T.Prasada Reddy

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…….Appellant and T.Sumithramma

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……Respondent

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HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA and

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HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY

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F.C.A.No. 56 OF 2012

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JUDGMENT: ( per AM.J.)

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Challenge sought to be laid in this appeal is as to the order dated19.09.2009 rendered by the learned Family Judge-cum-IV Additional District Judge, Kurnool, whereby the application in I.A.No. 71 of 2008 in FCOP.No. 133 of 2006 filed by the appellanthusband under Order IX Rule 9 of Code of Civil Procedure ( in short ‘the Code’) seeking to restore the case to its original file by setting aside the dismissal order was turned down.

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The facts giving rise to this appeal may shortly be stated as follows: The appellant/husband filed the aforesaid OP against the respondent-wife seeking divorce and also custody of his minor son. The case was posted for cross-examination of the appellanthusband on 19.6.2008. Since the appellant went to Bangalore to discuss with his Advocate in connection with CC.No. 22977 of 2005 pending consideration on the file of the learned II ACMM, Bangalore, which was coming up before that Court on 20.6.2008, in which he was arrayed as one of the accused, he could not attend the Court at Kurnool. The Court below however dismissed the said OP by order dated 19.6.2008.

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The appellant therefore moved an application before the Court below under Order IX Rule 9 of the Code seeking to set aside the said dismissal order and restore the main OP to its file. In the said application, he put forth the aforesaid reason for his absence and further stated that non-adducing of his evidence on the said date was neither willful nor deliberate, but for the aforesaid reason and the like.

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The said application was seriously opposed by the respondent-wife by filing a counter. In her counter, it was stated that if the plea of the appellant that he had gone to Bangalore to attend before his Advocate in connection with CC.No. 22977 of 2005, he ought to have either moved an application before the Court below for adjournment of the case much prior to 19.6.2008 or at least the same might have been represented through his counsel before the Court below on the relevant date, but that was not done; that the certificate issued by the Advocate at Bangalore to substantiate that he was present before him on 19.6.2006 was not true and the contents therein are only tailor made and stage managed; and that

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if the appellant was really in Bangalore on 20.6.2008 in connection with the said criminal case, he ought to have produced the docket order dated 20.6.2008 of that Court in support of his plea. In the said counter, she also referred the English grammar pertaining the word ‘advice’ used in the letter of the Advocate at Bangalore and the judgment of the Karnataka High Court in Telgi case relating to the certificate given by a Doctor against whom action was proposed for interfering with the administration of justice for issuing a such medical certificate in that case.

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The Court below observed that the appellant failed to show sufficient cause to set aside the dismissal order; that the impugned application under Order IX Rule 9 of the Code is not applicable where a case was dismissed on account of non appearance of the plaintiff for adducing evidence on his/her side; and that when the suit is dismissed for want of plaintiff’s side evidence, the dismissal was on merits or failure to establish the case by reason of absence of plaintiff side evidence and his witnesses and the like. In the process, the Court below did not accede to the plea of the appellant and dismissed his petition. Hence this appeal.

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This Court after condoning the delay in filing the appeal, ordered notice to the respondent-wife on 10.7.2012. The learned Counsel for the appellant was also permitted to take out personal notice to the respondent by Registered Post with Acknowledge Due and file proof of service. The notice sent by the Registry returned un-served. It was endorsed on the cover to the effect that the door locked since seven days and hence returned.

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When the case was posted on 31.7.2012, the learned Counsel for the appellant submitted that the notice sent to the respondent-wife by him too returned un-served in as much as she

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refused to receive the same. In the circumstances, the respondentwife is deemed to have served notice in this case.

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Heard the learned Counsel for the appellant. Perused the record.

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Before entering into the merits or demerits of the contentions advanced by the learned Counsel for the appellant, let us have a look at paragraph 13 of the order under appeal to know as to how the learned Judge of the Court below interpreted the provision under Order IX Rule 9 of CPC. The said paragraph reads as under;

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“ In this case, as per the petitioner affidavit itself clearly go to show that the case is posted for petitioner side evidence. But the petitioner failed to appear. Hence the case is dismissed. Where a case was adjourned for petitioner side evidence and not for hearing and it was dismissed on that day for the petitioner absence, it was not a case within the order 9 rule 9 of CPC. Remedy under Order 9 Rule 9 is available only when the dismissal is default for appearance under Order 9 rule9. Thus when the suit is dismissed for want of the petitioner side evidence, the dismissal was on merits or failure to establish case by reason or absence of petitioner side evidence and his witnesses….”

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Order IX Rule 9 of the Code provides that 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 order aside and if he satisfied 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 order upon such terms as to costs or otherwise as it thinks fit and proper, and shall appoint a day for proceeding with the suit.

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From the above, it follows that a plaintiff whose suit is dismissed under Rule 8 of Order 9 for default of appearance on the

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day fixed for hearing is precluded from instituting a fresh suit on the same cause of action. The second limb of the said provision shows that a plaintiff whose suit has been dismissed for default of appearance may apply to the Court for setting aside the order of dismissal of the suit, if he satisfies the Court that he was prevented by ‘sufficient cause’ from appearing when the suit was called on for hearing, the Court will set aside the order of dismissal, restore the suit to its file and fix a date for proceeding with the suit.

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In the case on hand, the Court below was of the view that since the appellant failed to appear when the OP was posted for evidence of his side and not for hearing, and when the OP was dismissed for his nonappearance at the stage of his side evidence, the provision under Order IX Rule 9 of the Code is not the appropriate remedy to set aside the dismissal order. The learned Judge of the Court below is of the view that remedy under Order 9 Rule 9 of the Code is available only in case the suit was dismissed for default on account of non appearance of the plaintiff when the case is posted for hearing. He is thus of the opinion by rigid interpretation of the said provision that when the suit is dismissed for want of plaintiff’s side evidence, the dismissal was on merits or failure to establish the case by reason of absence of plaintiff side evidence and his witnesses.

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In our considered opinion, this view of the learned Judge of the Court below is harsh and liable to be set aside.

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It may be relevant to notice that the expression ‘hearing of the suit’ means the hearing at which the Judge would be taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it. In other words, the

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expression ‘hearing of the suit’ means after the state of framing the issue(s) till the Court pronounces its verdict on the issue(s) involved in a suit.

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Further it is always expedient to adjudicate and decide the matter on merits rather than on technicalities so as to put a quietus as to such matter. In the case on hand, no doubt, the appellant not only failed to appear before the Court below on 19.6.2008 for his cross-examination, but also failed to file the subject petition before it immediately after 19.6.2008, but did so only after 20 days. However, it was the case of the appellant that he could not appear before the Court below as he had been to Bangalore in connection with a criminal case in C.C.,No.22977 of 2005 on the file of the learned II ACMM, Bangalore, wherein he is one of the accused, the Court below could have taken a lenient view and allowed the petition on terms and proceeded with the matter as the respondent-wife is said to have been coming from Bangalore to appear before the Court below on each and every adjournment.

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Having due regard to the facts and circumstances of the case and keeping in mind the avowed principle that it is always expedient and desirable to adjudicate and decide the matters on merits rather than dismissing the same on technicalities so as to give quietus to the dispute between the parties, we are of the considered opinion that a lenient view is required to be taken in this case and that this appeal is liable to be allowed with costs to be paid by the appellant to the respondent to sub serve the interests of justice.

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In the result, the appeal is allowed with costs of Rs.2,000/-to be payable to the respondent-wife by the appellant-husband within

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30days days from today and the impugned order is accordingly set aside. Consequently FCOP is restored to its file. The Court below is directed to go ahead with the OP by fixing the date and proceed with the same thereafter on day-to-day basis and dispose of the same within a period of six months months keeping in mind that the OP is of the year 2006.

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JUSTICE ASHUTOSH MOHUNTA

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JUSTICE G.KRISHNA MOHAN REDDY Dated 21^st August, 2012. Msnro

T.Prasada Reddy v. T.Sumithramma

Case brief

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What did the court decide?

T.Prasada Reddy v. T.Sumithramma

Case brief

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