Judgment:
R.G. Deshpande, J.
1. The petitioner-Bank/original plaintiff initiated Regular Civil No. 585/1988 against the respondents/defendants in the Court of learned Civil Judge, Junior Division, Aurangabad, for recovery of an amount of Rs. 14,685.15 paise together with further interest at the rate of 12.35 per cent, per annum till the realisation of the entire amount.
2. The above said Civil Suit came to be dismissed in default of the plaintiff on August 23, 1991. The reason for such a dismissal was that since April 9, 1991, the plaintiff did not take appropriate steps in the matter so as to serve the defendants.
3. The above said order dated 23rd August, 1991 was sought to be set aside and suit was sought to be restored on the file vide M.A.R.J.I. No. 1867914. This was an application for setting aside the order of dismissal in default and for restoration of the matter. It is not clear from the order sheet as to on what date this M.A.R.J.I. No. 186/91 was filed. However the Order Sheet dated 7.5.1993 specifically indicated that the order of dismissal in default was set aside and suit was restored to file.
4. Even thereafter the petitioner did not appear to be diligent enough in prosecuting the matter and the matter came to be dismissed, again in default with costs on 16.8.1993. After passing of the order dated 16.8.1993, it appears that on the same day, an application was moved by the plaintiff for setting aside the order of dismissal in default and for restoration of the original matter on the record. This application was presented on 16.8.1993 at about 5.50 p.m. and hence on that day, there was no question of passing any order on that application as it must be beyond the working hours of the Court on that day. The application appears to have been kept before the learned Judge of the Trial Court for necessary orders on 19.8.1993, that too some time at 5.15 p.m. The learned Judge, therefore, dealt with that application on the next day i.e., on 20th August, 1993 on which date, the learned Judge passed the order of rejecting that application, observing that in spite of sufficient chances, the petitioner/plaintiff did not take appropriate steps in the matter and the intention appears to be of keeping the matter unnecessarily lingering. The learned Judge, therefore, did not find it a case wherein he should have exercised the judicial discretion vested in him in favour of the plaintiff. The learned Judge, therefore, on August 20, 1993, rejected the said application. This order dated 20th August, 1993 is the subject-matter of challenge in this Revision Application.
5. Mr. K.V. Kulkarni, learned Advocate appearing on behalf of the petitioner-Bank, vehemently contended that after the matter was restored to file on 7.5.1993, thereafter the petitioner was not aware of the date of the proceeding and he, therefore, could not take appropriate steps in the matter. According to him after 7.5.1993 no specific dates were given to the plaintiff and hence necessary steps which were required to be taken in prosecuting the suit further could not be taken by the plaintiff. Mr. Kulkarni, further, vehemently contended that, in any case, when the order was passed on 16.8.1993 observing, 'no steps being taken, suit is dismissed with costs' on the same day i.e., on 16.8.1993, an application was moved by the plaintiff, pointing out that since the Advocate of the plaintiff had gone to the Commissioner's Court in connection with some urgent matter on that day, he could not remain present when the matter was called out. In this application he further mentioned that, however, the Advocate of the plaintiff appeared at about 4.45 p.m. when he got knowledge that the matter had been dismissed in default. The plaintiff in its application states that the plaintiff was relying on its Advocate and as such no officer of the plaintiff was present when the matter was called out on that day. The absence of the plaintiffs Advocate was shown to be just an accidental absence as the wording in the application is that, 'the absence of the plaintiff and its Advocate were accidental and not intentional'. The plaintiff, therefore, sought for setting aside the order of dismissal and for restoration of matter. Mr. Kulkarni, further, contended that since the application was moved on the very same day and since there was no negligence or carelessness on the part of the plaintiff in prosecuting the matter, the learned Judge of the Court below should have restored the matter to the file by setting aside the order of dismissal. In support of his contention, Mr. Kulkarni invited my attention to the decision reported in AIR 1938 Bom 199 in the matter of P.D. Shyamdasanl and Ors. v. Central Bank of India Limited, Relying on this judgment, Mr. Kulkarni argued that, In any case, the matter could have been restored to file, at the most, by Imposing certain cost on the plaintiff,
6. In the present matter though the respondents are served, they remained absent and no one is appearing on their behalf. Therefore, I have no advantage of hearing any arguments on behalf of the respondents.
7. In this case, it is also pertinent to note that this Court had intentionally called for the record of the original suit so as to find out as to whether could the plaintiff be said to be not negligent in prosecuting its matter. The record unfortunately completely falsifies the arguments advanced by the learned Counsel for the petitioner. At the cost of repetition, I would like to observe that the learned Judge of the Trial Court consistently argued on the point that after the matter was restored for the first time no dates were given thereafter and, therefore, the plaintiff could not remain present. Simultaneously, it is also argued that on 16.8.1993, the learned Advocate had gone to the Court of Commissioner and, therefore, he could not remain present in the Court on that day. I find it very much difficult to reconcile these two arguments and hollowness of the arguments is made evident further specifically by the order sheets on the record. The order sheet dated 7.5.1993 deals with M.A.R.J.I. 186/ 91 indicating that the suit was restored on that day by setting aside the original order of dismissal in default which was passed on 23rd August, 1991. So it is evident that the suit was once restored by the learned Judge that too in the year 1993 when the original suit was, in fact, dismissed in the year 1991. On 7.5.1993 when this matter was called out, no order was passed. Thereafter the matter was fixed on 30th June, 1993. The order sheet dated 30th June, 1993 is in the following words 'Plaintiffs Advocate present. Case adjourned for steps. Case for 26.7.1993', The order sheet dated 26.7.1993 again reads as follows: 'Plaintiff-Bank present, Case adjourned for steps. Case for 16.8.1993'. The order sheet dated 16.8.1993 reads as follows: 'Advocate for the plaintiff absent. Court order passed below Exh. 1. No steps being taken. Suit is dismissed with costs. Proceedings closed.' These three order sheets clearly indicate that the plaintiff was aware of the dates of proceedings of the suit from the time-to-time and every time the Counsel for the plaintiff was present in the Court except on the last date. It is also pertinent to note that it is not the case of the plaintiff in this revision that the Counsel for the plaintiff was absent on both the dates i.e., 20th June, 1993 and 26th July, 1993. Therefore, it is impossible to conceive of this idea that the plaintiff was not aware as regards the dates of the proceedings in the matter and, therefore, at the outset, I have no hesitation in rejecting his argument, that too outright, when he argued that the plaintiff was not aware of the dates.
8. Now the question that needs consideration in the matter is as to whether did the learned Judge of the Trial Court commit an error in rejecting the restoration application which was filed by the plaintiff-Bank for restoration of the matter, which was filed on 16.8.1993. This application dated 16.8.1993 was marked as Exh. 8 in Regular Civil Suit No. 585/88. This application was presented to the Court Clerk (i.e., Shirestedar/Reader of the Court) by the learned Advocate. He made the endorsement thereon 'Application received by 5.50 p.m.', which is signed by the concerned Clerk and has mentioned the date 16.8.1993. This clearly indicates that this application appears to have been presented after the office hours on that day. That definitely was the reason as to why the applicant appeared before the learned Judge for necessary orders thereon on 19.8.1993. This was at the fag end of the day i.e., 19.8.1993. The application was placed before the Court for necessary orders. The learned Judge who passed the order on 20th August, 1993 specifically stated that however it Is correct that the application was presented by the Advocate for the plaintiff on 16.8.1993 at about 5.50 p.m. In view of this it appears that the matter was brought to the notice of the Court on 19.8.1993 who passed the order on the said application on 20.8.1993 rejecting the same. The learned Judge, no doubt, has rightly taken into consideration the previous dismissal of the matter and its restoration once.
9. The learned Judge, therefore, having observed that the petitioner-Bank did not appear to be either interested in prosecuting the matter or was rather not diligent enough in prosecuting the same, rejected the said application.
10. After having gone through the order passed by the learned Judge of the Trial Court, I have no hesitation in observing that the petitioner-plaintiff happens to be an institution that too a Banking institution having its Legal Cell. The petitioner-plaintiff has a paraphernalia of officers at its command and disposal for attending the Court matters and secure the attendance of the Advocate(s) representing the Bank in those particular cases. It is, therefore, expected from such an institution who have even not slightest dearth of the funds at its disposal or short of efficient hands, to be diligent enough. In spite of this if the Institution like the Banking Institution is so careless in prosecuting the matter, which definitely reflects on its alleged diligence. Such an Institution, in the opinion of this Court, hardly deserves any leniency.
11. The learned Advocate appearing for the plaintiff/petitioner argued that on the concerned date i.e., 16.8.1993 the Advocate had gone to the Commissioner's Court where he came to know about dismissal of the matter and, therefore, the learned Advocate again rushed to the Court and filed the application for restoration on the same day. Much capital is tried to be made by Mr. Kulkarni on the basis of this saying that since the application for restoration was moved on the very same day, the learned Judge should have allowed the application. In ordinary course if the application for restoration is moved on the same day, it is generally restored. However after seeing the history of this case and keeping in mind the previous conduct of the petitioner/plaintiff and one who was favoured with, as stated above by once restoration even after its dismissal, I do not think that the learned Judge has committed any error in not exercising the discretion vested in him in favour of the petitioner/plaintiff. Another aspect to be looked at in this matter is that even for the sake of arguments the application for restoration was moved on me very same day i.e., on 16.8.1993, the question is, has the petitioner/plaintiff on or before the date taken appropriate steps which he was supposed to take even prior to the first dismissal of the matter. Surprisingly, in spite of having sufficient chances the plaintiff did not take steps even till 16.8.1993 and hence I do not find that it is a case wherein the learned Judge should have really exercised the discretion in favour of the petitioner/plaintiff. Even if the application would have been made by the learned Advocate for the plaintiff/petitioner on that day for restoration contending that appropriate steps are already taken in the matter and merely because absence of the Advocate the matter should not be dismissed, most probably some concession and favour could have been shown to the petitioner/plaintiff. But, alas, no such statement indicating that the steps which the plaintiff was supposed to take, he had taken the same. Therefore, in my opinion, looking at the matter from this angle also, the plaintiff did not deserve any leniency. Mr. Kulkarni, here before this Court, at the time of hearing contended that on the same day, necessary steps were taken and separate application to that effect was moved before the learned Judge of the Trial Court, which is marked as Exh. 9. Worth it is to note that this application is also filed on 16.8.1993 at 5.50 p.m. i.e., after the working hours on that day. Therefore, for all practical purposes, this application cannot be said to be filed on that day and even otherwise till that day no steps were taken which otherwise the plaintiff was supposed to take. The Revision is absolutely standing on a fragile ground and feeble attempts were made on behalf of the petitioner-plaintiff to anyhow get the matter restored. In my opinion, the plaintiff does not deserve even slightest leniency in this matter more particularly when it is an institution having its Legal Officers and Legal Cell. Mere saying that it was resting on its Advocate is not enough to restore the matter on that sole ground, particularly when the matter earlier i.e., in the year 1991 was dismissed in default and was restored only taking into consideration the contention raised by the Advocate in that application and as a result, the application was restored to file in the year 1993. If the same thing is continued again thereafter, I am of the opinion that the learned Judge of the Trial Court definitely exercised the discretion vested in him in an appropriate manner so as at least to have plaintiff/petitioner hereafter to be diligent enough in its litigation in which it is constantly involved, it being a Banking institution.
12. In the circumstances, the present Civil Revision Application stands dismissed with costs of Rs. 5,000/- (Rupees five thousand) to be deposited in this Court. Rule discharged.