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HIGH COURT OF CHHATTISGARH BILASPUR

----------------------------------------------------------------------------------------SINGLE BENCH: HONBLE SHRI SANJAY K. AGRAWAL, J.
-----------------------------------------------------------------------------------------M.A. No. 1002/2006
APPELLANT
PLAINTIFF

Smt.

Preetam

Kaur,

Wd/o

late

Mohan Singh Ajmani, Aged about 40

years, R/o Gram Pithaura, Tah. &
Distt. Mahasamund (C.G.)
VERSUS

RESPONDENT
DEFENDANT

Nagar Palika Parishad Pithaura,

through

Chief

Municipal

Officer,

Pithaura, Distt. Mahasamund (C.G.)

(APPEAL UNDER ORDER 43 RULE 1 OF THE CIVIL PROCEDURE
CODE.)
Present :
Mr. Anand Kumar Gupta, learned counsel for the appellant.
Mr. Pawan Kesharwani, learned counsel for the respondent.
JUDGMENT
(01/10/2013)
1.

This appeal is directed against the order dated 10/7/2006

passed by First Additional District Judge, Mahasamund, C.G. in

M.J.C. No. 18/2003 by which appellants /plaintiff's application under
Order 9 Rule 9 read with Section 151 of the Code of Civil Procedure
(in short CPC) for setting aside of the dismissal of the suit has been
rejected by the trial Court.
2.

The facts necessary for adjudication of this appeal are as

under:

2.1

The

appellants/plaintiffs

suit

for

declaration

and

permanent injunction restraining respondent/defendant from

recovering the amount was fixed for final hearing on
28/02/2013. On the said date, suit was dismissed for want of
prosecution as appellant/plaintiff and her counsel, both were
absent. Appellants/plaintiffs application for restoration of the
suit filed under Order 9 Rule 9 read with Section 151 CPC was
also rejected by the trial Court holding that no sufficient cause
has been shown by the appellant/plaintiff, when the case was
called up for hearing.
2.2

Appellant/plaintiff filed an application under Order 9 Rule

9 read with Section 151 CPC on 03/03/2003 pleading interalia

that the case was fixed on 28/02/2003 for final arguments. On
the said date, counsel instructed her not to come personally
and also her counsel could not appear, as he fell sick.
Therefore, neither she nor her counsel- Mr. Shailendra Tiwrai
could appear, when the case was called up for hearing leading
to dismissal of the suit. It was further pleaded that she being
the widow, aged about 65 years could not get information with
regard to sickness/illness of her counsel and her son Indrajeet
Singh though present in the Court premises could not came to
know about his counsels illness. In the later part of the day,
her son Indrajeet Singh contacted on phone to his counsel- Mr.
Shailendra Tiwari has not come to Court owing to his sickness
and when upon inquiry, he came to know that his suit had
already been dismissed. The said application was supported
by an affidavit of the appellant/plaintiff herself and prayer was
made for restoration of the suit in its original number.
2.3

Respondent/defendant- Nagar Palika Parishad filed its

reply opposing the application for restoration and pleaded that

for non-appearance on 28/02/2003, dismissal of the suit is
justified, as the appellant/plaintiff has not shown sufficient
cause for non-appearance, when the suit was called up for
hearing on 28/02/2003.
3.

Mr. Anand Kumar Gupta, learned counsel appearing for the

appellant/plaintiff would submit that on 28/02/2003 case was fixed for

final hearing and on instruction of her counsel, she has sent her son
Shri Indrajeet Singh to the Court as her personal presence was not
required, but on the said date her counsel Shri Shailendra Tiwari
stationed at Bagbahara became sick could not come to the Court. He
would further submit that the appellant/plaintiff is a widow, aged
about 65 years and filed the application within 4 days of the
dismissal of the suit; the trial Court ought to have adopted liberal
approach in considering her application for restoration and rejection
of her application is bad in law.
4.

On the other hand, Mr. Pawan Kesharwani, learned counsel

for the respondent/defendant opposed the appeal and supported the

order impugned.
5.

I have heard learned counsel for the parties and considered

the rival submission made therein and perused the record of the
Claims Tribunal.
6.

Order 9, Rule 9 CPC provides as under:

R. 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

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shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of
the application has been served on the opposite party.

7.

A bare perusal of the Order 9 Rule 9 CPC would show the suit

dismissed can be set aside if sufficient cause is shown by the

appellant/plaintiff for his non-appearance, when the case is called on
for hearing.
8.

The Supreme Court in case of G. P. Srivastava v. R.K.

Raizada and Others1, while construing the sufficient cause

employed. Para-7 held as under:
7.
Under Order 9 Rule 13 CPC an ex parte decree
passed against a defendant can be set aside upon
satisfaction of the Court that either the summons were not
duly served upon the defendant or he was prevented by
any sufficient cause from appearing when the suit was
called on for hearing. Unless sufficient cause is shown for
non-appearance of the defendant in the case on the date
of hearing, the court has no power to set aside an exparte
decree. The words was prevented by any sufficient cause
from appearing must be liberally construed to enable the
court to do inaction is imputable to the erring party.
Sufficient cause for the purpose of hard and fast guidelines
can be prescribed. The courts have a wide discretion in
deciding the sufficient cause keeping in view the peculiar
facts and to the date on which the absence was made a
ground for proceeding ex parte and cannot be stretched to
rely upon other circumstances anterior in time. If sufficient
cause is made out for non-appearance of the defendant
on the date fixed for hearing when ex parte proceedings
were initiated against him, he cannot be penalized for his
previous negligence which had been overlooked and
thereby condoned earlier. In a case where the defendant
approaches the Court immediately and within the statutory
time specified, the discretion is normally exercised in this
favour, provided the absence was not mala fide or
intentional. For the absence of a party in the case the other
side can be compensated by adequate costs and the lis
decided on merits.

9.

In case of Raj Kishore Pandey v. State of Uttar Pradesh and

Others2, Para 8 held as under:

1
2

(2000) 3 SCC 54
(2009) 2 SCC 692

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8.
In our opinion, whether the applicant has made out
sufficient cause or not, in the application filed, the Court is
required to look at all the facts pleaded in the application.
No doubt, the consideration of the existence of sufficient
cause is the discretionary power with the court, but such
discretion has to be exercised on sound principles and not
on mere technicalities. The approach of the Court in such
matters should be to advance the cause of justice and not
the cause of technicalities. A case, as far as possible,
should be decided on merits.

10.

In case of Rafiq and Another v. Munshilal and Another 3,

the Supreme Court held that the obligation of the party is to select
his advocate, brief him, pay the fees and trust the learned Advocate
to do the rest of the things. It is thus a duty of lawyer to attend the
proceedings. The Supreme Court held as under:3.
The disturbing feature of the case is that under our
present adversary legal system where the parties generally
appear through their advocates, the obligation of the
parties is to select his advocate, brief him, pay the fees
demanded by him and then trust the learned Advocate to
do the rest of the things. The party may be a villager or
may belong to a rural area and may have no knowledge of
the courts procedure. After engaging a lawyer, the party
may remain supremely confident that the lawyer will look
after his interest. At the time of the hearing of the appeal,
the personal appearance of the party is not only not
required but hardly useful. Therefore, the party having
done everything in his power to effectively participate in
the proceedings can rest assured that he has neither to go
to the High Court to inquire as to what is happening in the
High Court with regard to his appeal nor is he to act as a
watchdog of the advocate that the latter appears in the
matter when it is listed. It is no part of his job.

11. Thus, in the light of aforesaid principles laid down by Supreme

Court, in the instant case, appellants/plaintiffs suit is for declaration
and permanent injunction. Appellant/plaintiff has contested the case
diligently and ultimately, the case was fixed for final hearing on
28/02/2003. Since the argument has to be advanced by her
counsel, she was not present in the Court on the said date of
hearing, her counsel Mr. Shailendra Tiwari suddenly fell sick and
3

(1981) 2 SCC 788

could not come to the Court on the date of hearing and suit came to
be

dismissed

for

default

on

28/02/2003

and

thereafter,

appellant/plaintiff filed promptly after 4 days an application for

restoration on 03/03/2003 before the trial Court by showing sufficient
cause for his non-appearance, as her counsel fell sick on the date of
hearing. Thus, I find that the appellant/plaintiff has filed application
for restoration within statutory period promptly within 4 days and the
cause shown by the appellant/plaintiff for her non-appearance on
28/02/2003, when the suit was called up for hearing is sufficient
cause and finding recorded by the trial Court holding that the cause
shown is not sufficient is erroneous and liable to be set-aside.
12.

Thus, I am of the considered opinion that appellant/plaintiff has

succeeded in showing sufficient cause for non-appearance on

28/02/2003, when the suit was called up for hearing. Consequently,
the order passed by the trial Court on 10/07/2006, rejecting the
appellants/plaintiffs application under Order 9 Rule 9 read with
Section 151 of the CPC is set aside. Accordingly, appeal is allowed.
The Civil Suit No. 161-A/2000, (Smt. Preetam Kaur v. Nagar Palika
Parishad Pithaura) pending in the Court of First Additional District
Judge, Mahasamund is restored in its original number. The trial Court
shall now proceed to decide the suit in accordance with law on
merits after affording an opportunity of being heard to all the parties
and suit be decided expeditiously preferably within a period of 4
months from the date of receipt of certified copy of the order.
13. Certified copy as per rules.
(Sanjay K. Agrawal)
JUDGE
Tiwari

HEADLINE
Under Order 9 Rule 9 read with Section 151 CPC sufficient
cause has to be liberally construed.

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