Bhalchandra Ganesh Naik and Smt. Bharati Bhalchandra Naik Vs. Sona Hotel Through Its Proprietor Shri Suresh Melwani, - Court Judgment

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civil - dismissal of suit - non-prosecution - sufficient ground - restoration thereof - limitation - order 9 rules 8 and 9, order 17 rules 2 and 3 of code of civil procedure, 1908 - suit filed by appellants/plaintiffs dismissed for non-prosecution - application for restoration of suit also dismissed by trial court on the ground that there was no sufficient ground for restoration and also barred by limitation - hence, present appeal - held, suit to be restored if plaintiffs are able to show sufficient cause for their absence - previous conduct of plaintiff to be taken into account - impossible to accept that for the whole year the counsel had failed to instruct about the next date of hearing though during that time the suit was adjourned from time to time on number of occasions - plaintiff not coming with clean hands - difficult to accept that counsel would fail to inform date of hearing to client when case adjourned as last chance - duty of plaintiffs to check with counsel as to what happened to the proceedings - complacency goes to show negligence on the part of plaintiffs - inconceivable that plaintiffs were not aware of the date of hearing at all - order passed on 2nd january, 2007 - application for restoration filed on 5th february, 2007 - application required to be filed within 30 days - time spent in obtaining certified copy not to be excluded as plaintiffs were not to prefer any appeal but were to simply file application under order ix rule 9 - no infirmity or illegality in impugned order - appeal dismissed - - there is nothing contemplated like closure of proceedings and consigning the record to the record room. it is just impossible to accept that for the whole year the counsel had failed to instruct about the next date of hearing though during that time the suit was adjourned from time to time on number of occasions. -the applicants' advocate did not communicate the next date of hearing and told them not to worry and that he would inform them well in advance of the date on which they will have to appear in court. in one breath, they say that counsel did not communicate the date of hearing to them and in the second breath, they say that counsel told them not to worry and that he would inform them well in advance. in spite of the fact that the suit was adjourned as the last chance, it is still more difficult to accept that the counsel would fail to inform the date of hearing to the client.c.l. pangarkar, j.1. this is an appeal filed against the order passed by the civil judge senior division, panaji.2. the facts giving rise to the appeal are as follows:the plaintiffs have instituted a special civil suit no. 208/91 against the respondents/defendants. respondents/ defendants appeared in the court and filed their written statement. issues were framed and the suit came to be fixed for recording evidence of the parties. accordingly, part of the evidence of the plaintiffs' witness no. 1 is recorded by the court. subsequently, the suit came to be adjourned on many occasions. ultimately, on 2.1.2007, the same suit came up for recording evidence before the court. on that date, the plaintiffs remained absent. counsel for the plaintiffs informed the court that he has no instructions in the matter and the court may proceed in accordance with law. this was done since the other side had objected to the matter being adjourned. on 2.1.2007, therefore, the court in the roznama recorded the history as to how the matter came to be adjourned from time to time and how the attitude of the counsel for the plaintiffs was recalcitrant. the court then passed an order in the following words:the suit of the plaintiffs stand closed on account of non prosecution. proceedings closed. sent the file to the record room as per standing instructions. 3. thereafter, the appellants/plaintiffs moved an application under order 9 for restoration of the suit. this application was filed on 5.2.2007.4. the plaintiffs/appellants contended in the said application that plaintiffs were present in the court on 25.1.2006, on which date, the matter was adjourned on 21.2.2006. on 21.2.2006, the plaintiffs were unable to attend and therefore instructed the counsel to seek adjournment. it was the contention of the plaintiffs that plaintiffs' counsel did not communicate to them the next date of hearing but told them not to worry. further, it is contended that since they had no information about the date they could not remain present on 2.1.2007. they have contended that they received information on 5.1.2007 that the suit has been closed for non prosecution. the plaintiffs therefore pray that the suit be restored to file.5. the respondents/defendants had resisted the suit and contended that the application is not maintainable. they have given the dates on which the matter was adjourned from time to time and according to them in the year 2006 itself the matter was adjourned on 12 occasions and there was no justifiable cause for the plaintiffs to remain absent. they therefore contended that the application be rejected.6. the learned judge of the trial court heard the parties and found that there was no sufficient ground for restoration of the suit. he also found that the petition was barred by limitation. holding so she rejected the application under order ix and being aggrieved by that, this appeal has been preferred.7. i have heard the learned counsel for the applicants and the respondents. the plaintiffs were required to file an application under order ix rule 9 due to following order passed in the roznama dated 2.1.2007, which is as follows:called out today.ad. a. salkar present for plaintiff.adv. s. usgaokar present for deft. no. 1.adv. l. marshelkar present for deft. no. 2.defendant no. 3 proceeding ex-parte.adv. a. s. salkar stated that he has conveyed the message to his party about todays date of hearing, but so far he has not received any message from his party as to what is to be done for today's hearing.adv. s. usgaokar on behalf of deft. no. 1 vehemently stated that adv. a.s. salkar is in the habit of asking adjournment on flimsy grounds and he was given final opportunity by this court in earlier point of time but there is no salutary effect on the party or advocate salkar.adv. l. marshelkar on behalf of deft. no. 2 stated that necessary co-operation is given to adv. salkar for adjournments but there is no end to it.since time and again adjournment cannot be granted and since adv. salkar submitted across the bar that he lives the matter to the discretion of this court, the suit is of the year 1991 and today we are in the year 2007 and till date the file is at the bud stage and no further opportunity or adjournment can be granted to the plaintiff. there is also limit for seeking adjournment. i am opt to quote the honourable decision of the bombay high court reported in : air2003bom347 with the above observation, the suit of the plaintiff stands closed on account of nonprosecution. proceedings closed. sent the file to the record room as per standing instructions.sd/-.cjsd, panaji.8. although, the proceedings as such have been closed by the learned judge the effect that order was the dismissal of the suit. there were three options available with the learned judge on 2.1.2007 when the plaintiffs remained absent after the part of his evidence was recorded. first was to dismiss the suit under order ix rule 8; second to adjourn the suit voluntarily and third to decree the suit if the claim was admitted as a whole or in part by the defendants. in the instant case, the defendants had not admitted any part of the claim, as such the third option was not available to the learned judge at all. learned judge has strangely instead of dismissing the suit or voluntarily adjourning it just passed a strange order of closure of the proceedings. there is nothing contemplated like closure of proceedings and consigning the record to the record room. this is not a criminal proceeding where the proceedings could be stopped for certain reasons. be that as it may, the effect of the order as earlier said is one of the dismissal of the suit. the application under order ix rule 9 can be said to be maintainable because of the fact that the order could be said to be the one falling under rule 3(b) of order 17 as a very insignificant part of the evidence of the plaintiffs was recorded and the plaintiff was absent. when the case falls under rule 3(b) one has to necessarily revert back to order 17 rule 2. if one has to revert back under order 17 rule 2 necessarily one has to make an application under order ix rule 9 for restoration of the suit. therefore, an application as filed by the plaintiffs/appellants was quite tenable. the following decisions lay down the same proposition. : air1943bom321 basalingappa v. shidramappa and : [2003]3scr369 b. janakiramaiah chetty v. a.k. parthasarthi and ors....9. mr. kakodkar, sr. advocate for the appellants submitted before me that in the ends of justice the appellants should be given an opportunity to prosecute the suit. he submits that every litigation must end finally and justice may be done to the party. he submits that justice can be said to be done only when the dispute comes to an end on merits. he contends therefore that the lower court should have taken into consideration this aspect and restored the suit. his submission cannot be accepted since the court is supposed to do justice accordingly to law. order ix rule 9 says that the court can restore the suit to the file if the plaintiffs are able to show sufficient cause for their absence on the last date of hearings. if the application of appellants/plaintiffs is seen, it is obvious that for almost one year the plaintiffs did not at all care to appear in the court although the plaintiffs are no doubt liable to explain their absence only on the date the suit was dismissed. still the previous conduct has to be taken into account. if the application is read the only ground that the plaintiffs put forth is that their counsel did not inform them of the date. it is just impossible to accept that for the whole year the counsel had failed to instruct about the next date of hearing though during that time the suit was adjourned from time to time on number of occasions. in fact, it can be demonstrated from the contents of the application itself as to how the plaintiffs are not still coming with their clean hands. i may quote here the contents of their application itself, which are as follows: -.the applicants' advocate did not communicate the next date of hearing and told them not to worry and that he would inform them well in advance of the date on which they will have to appear in court....10. now, if this sentence is read, it is obvious that the plaintiffs have not come with clean hands. in one breath, they say that counsel did not communicate the date of hearing to them and in the second breath, they say that counsel told them not to worry and that he would inform them well in advance. these two things definitely cannot go together and this is enough to show that the ground put forth by the plaintiffs is absolutely false. the reply filed by the defendants discloses that in the year 2006 this suit was adjourned on eight occasions and on 12.12.2006 it was adjourned as the last chance. in spite of the fact that the suit was adjourned as the last chance, it is still more difficult to accept that the counsel would fail to inform the date of hearing to the client. in fact, it was also the duty of the plaintiffs to check with the counsel as to what has happened to the proceedings. this complacency on the part of the plaintiffs itself goes to show the negligence. it is therefore practically inconceivable that the plaintiffs were not aware of the date of hearing at all. the attitude of the plaintiffs is nothing else than callous. not only the plaintiffs did not remain present in the court on all these dates of hearings, but they even did not care to file the application for restoration within time. the order was passed on 2.1.2007 and application was filed on 5.2.2007 i.e. beyond the period of 30 days. an application is required to be filed within 30 days. an argument was advanced that the time was spent in obtaining certified copy and that time should have been excluded. there is no question of obtaining certified copy since plaintiffs were not to prefer any appeal but were to simply file an application under order ix rule 9. the question of exclusion of time is to be considered when appeal is to be preferred. mr. kakodkar, learned sr. advocate for the appellants submits that plaintiffs had made an oral application before the learned judge for condoning the delay in preferring the application under order ix, but, the learned judge had not condoned the delay. the order passed by the learned judge does not show that any submission was made before her. the decisions cited by mr. kakodkar, learned sr. advocate for the appellants reported in air 1992 calcutta 179 state of west bengal and ors. v. nripendra nath banerjee and ors. and 1990 (supp) scc 89 l/naik mahabir singh v. chief of army staff need not therefore be considered. the next decision is reported in : 2001(132)elt15(sc) vedabai alias vaijayanatabai baburao patil v. shantaram baburao patil and ors.... this decision has no bearing on the case at hand as there is no application for condonation of delay at all. in the circumstances, i find that the order passed by the learned judge does not suffer from any kind of infirmity or legality and the appeal deserves to be dismissed. the plaintiffs/appellants have been taking disadvantage of process of law. in the circumstances, i am constrained to impose compensatory costs of rs. 5000/- on the appellants.