လုံလောက်သောအကြောင်း[ sufficient cause ][ Part Four ]

 ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

လုံလောက်သောအကြောင်း[ sufficient cause ][ Part Four ]

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အောက်ပါတို့သည်လုံလောက်သောအကြောင်းများဖြစ်သည်-

A. I. R. 1922 Allahabad 72. ( 74 )

PIGGOTT, J.

H. Bevis & Co.—Applicant

                V.

Ram Prasad-Opposite party.

Civ. Rev. No. 85 of 1921, decided on 9th January, 1922, from an order of J., Small Cause Court, Cawnpore.

အမှု၌၊အမှုကြားနာစစ်ဆေးသည့်နေ့တွင်ညနေ ၅ နာရီကျော်လွန်မှအမှုခေါ်ခြင်းသည်လုံလောက်သောအကြောင်းဖြစ်သည်ဟုအောက်ပါအတိုင်းထုံးဖွဲ့သည်-

[ This is an application in revision against an order of the Judge of the Court of Small Causes at Cawnpore rejecting an application to have a salt restored, which had been dismissed for nonappearance on the part of the plaintiff when the suit was allied on for heaving. 

The facts alleged by the plaintiff have not been controverted, either by affidavit of the opposite party, or by anything pissed on record by the presiding Judge himself. 

I am entitled, therefore, to assume that those fasts are admitted. 

The suit in question was down for hearing on the 3rd of March 1921. 

The plaintiff was personally present in Court up to 5 p.m. 

At that hour the Court was still engaged in hearing some other suit. 

The plaintiff's Pleader game round to the Courtroom and some conversation took place between them, as a result of which both the plaintiff and his Pleader left the Court. 

The suit was subsequently called on. 

I gather from the record that the defendant was present, although the plaintiff was not, and, after recording the defendant's denial of the claim, the Court dismissed the suit. 

When the plaintiff applied for restoration, setting forth the facts above stated, the Court passed an order the effect of which is that the plaintiff was to blame for leaving the Courtroom while he knew that the Court was still sitting, and on this ground alone the application for re-hearing was rejected. 

This Court has issued a rule binding on subordinate Courts which lays down that the ordinary hours for the attendance in the Court building of Judges presiding in Civil Courts for judicial work shall be from 10-10-30 a. m to 4 p.m. and these hours shall net be altered except under special sanction granted by the High Court. 

No doubt, it was never intended by this rule to fetter the discretion of subordinate Courts to an unreasonable extent. 

For a Court to sit after 4 p.m. for the purpose of concluding the hearing of a particular case, when the parties are agreed that their own convenience will be suited by the Court's doing so, would certainly not be regarded as a breach of this rule. 

In the present instance, however, the hearing of a fresh suit was commenced after 5 P. m. 

No reason has been stated for the adoption of this course, nor is it suggested that the learned Judge intimated in any way to the litigants present in Court that, for some special reason, be felt it incumbent upon him to sit to an unusually late hour on the day in question. 

The commencement of the hearing of a fresh suit after 5 p. m. was not only a contravention of the rule which has already been quoted, but it involved a practice which, if persisted in, would prevent the due observance of other rules and directions issued by this Court. 

Such, for instance as the directions contained in the orders of January 1921 regarding the precautions to be taken against the occurrence of fire in Court buildings. 

It has been suggested that, in any event, this is not a proper case for interference by this Court in revision, inasmuch as the learned Judge of the Court of Small Causes was within his jurisdiction in determining whether or not sufficient cause had been shown by the plaintiff for his absence when the suit was actually called on for hearing. ]

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Radhey Shiam vs R.C. Bhattiya 

on 20 October, 1944

Equivalent citations: AIR1945ALL53, AIR 1945 ALLAHABAD 53

ORDER

Malik, J.

အမှု၌၊အမှုကြားနာစစ်ဆေးမည်ဖြစ်ကြောင်းနို့တစ်မပေးခြင်းသည်လုံလောက်သောအကြောင်းဖြစ်သည်ဟုအောက်ပါအတိုင်းပြဆိုသည်-

[ These two revisions arise out of two suits filed by cosharers for profits pertaining to their share.

The cases were triable by the Assistant Collector, First Class, Bareilly. 

I am informed that the headquarters of the Assistant Collector is at Baherhi, but he fixed these cases for hearing on 14th December 1940 at his camp at Rainwala. 

It does not appear how or when he changed his programme and decided that he would hear these cases at Utarsi. 

Rainwala is at a distance of seven miles from Baherhi and Utarsi is at a distance of six miles from Rainwala. 

Notice of this change in the programme of the learned Assistant Collector was not given to the plaintiffs, but according to some practice prevailing in the revenue Courts this change of programme was notified to the Bar Association and the Mukhtars' Association. 

Notice of the change of programme was also hung up on the notice board. 

The plaintiffs not having received any information of the change of programme wont on 14th December with their pleaders to Rainwala. 

When they reached there, they were told that the learned Assistant Collector was sitting at Utarsi. 

They then rushed to the latter place and there being no proper conveyance they had to go on foot or by bullock cart. 

When they reached Utarsi, they were informed that the learned Assistant Collector had already dismissed the cases for default of appearance on behalf of the plaintiffs. 

Applications for restoration were filed, I am informed, on the same date. 

The learned Assistant Collector, however, thought that there was no sufficient ground for restoration and rejected the applications. 

There were appeals filed before the learned District Judge, Mr. Plowden, who called for a report from the learned Assistant Collector as to how the change of programme was notified, and the learned Assistant Collector on 17th December 1941 submitted his report that the change of programme was notified in the manner as stated by me above. 

The learned District Judge dismissed the appeals on the ground that there was no sufficient reason for interference. 

It is against that order that these revisions have been filed.

There is no provision in the Civil Procedure Code for service of notice by sending such general notices to the Bar Associations and there is no law under which such notices can be deemed to be sufficient. 

I am informed that this is the general practice in the revenue Courts. 

All that I can say is that if this is the practice, it is very unsatisfactory. 

The practice of hearing cases in camps at a distance from the headquarters causes great hardship to litigants and they have to pay additional fee to the lawyers. 

The cases are not heard in a proper atmosphere, nor can there be any library at hand.

However, if cases have to be heard in camps, to my mind, a party when he has received notice that his case is to be heard at a particular place, should be informed if there is to be any change of either the date or the place of hearing. 

In any case from the fact that the plaintiffs went to Rainwala on the date fixed and then went to Utarsi with their pleaders it cannot be said that they had knowledge of the date and deliberately absented themselves. ]

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A.I.R. 1923 Madras 63.

SCHWABE, C.J. AND WALLACE, J.

R. A. Arunachala Iyer-Appellant

                     v.

C. Subbaramiah- Respondent.

O.S. A. No. 116 of 1921, decided on 2nd August, 1922, from the judgment and order of Phillips, J., dated 19th October, 1921.

အမှု၌၊မီးရထားလမ်းပျက်၍တရားလိုရုံးသို့မလာရောက်နိုင်ခြင်းသည်လုံလောက်သောအကြောင်းဖြစ်သည်ဟုအောက်ပါအတိုင်းထုံးဖွဲ့သည်-

[ Schwabe, C J. —I have expressed myself on this subject in fairly strong language before and I propose to do so again.

When for some reason a man has not attended a case in Court and there is no sufficient explanation of his absence, the case, by reason of his absence, is allowed to go ex parte.

If he comes to Court afterwards and asks that big case may be restored to file, the question to ba considered by the Court is not whether by some human possibility, being wise after the event, be could not have got there in time or whether a man who studied his Railway guide a little better would not have got in another train or taken another route, but whether the man honestly intended to be in Court and did his best, though in his own stupid way, to get there in time; and once the Court is satisfied, as was the fact in this case, that the man did try to get there and that he would have got there in time but for the intervention of an inevitable accident for which he was in no way responsible, it is the duty of the Court, in my judgment, to set aside the judgment, muloting, in proper cases, the delinquent man in costs. 

In all those cases this universal panacea for healing all wounds, as it has been called in England, will properly be applied. 

It is not right in cases of this kind that the man should have his case disposed of without being heard.

These Courts are here so that people who have cases can have those cases heard and determined, and it should never be the intention of the Court that a man should be deprived of a hearing unless there has been something equivalent to misconduct or gross negligence on his part or something which cannot be put right so far as the other side is concerned by making the pay tor it. 

The proper order in this case should have been that the case should be restored the list and the judgment set aside on payment of all costs thrown away by the defendant, and that is the order that I propose to make.

The costs of this appeal will be paid by the respondent.

The costs of the application to set aside the judgment before Phillips, J., will be the costs in the cause.

Wallace, J.:-I agree. 

Whether there was negligence precedent or not does not affect the case. 

Under ordinary conditions if the appellant had stutted from Trichinopoly by the evening train on the 12th, he would have been in time for the hearing of this case on the 13th, and the breach on the railway line is obviously a sufficient cause for his not appearing, and that is the question which the Court had to decide.

I am quite clear that there is sufficient cause for his not appearing and I therefore agree with the judgment of the learned Chief Justice.

Appeal allowed. ]

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M/S. Progressive Constructions Ltd. 

                       vs 

M/S. Sharma Associates And Contractors ... 

on 23 March, 2001

Equivalent citations: AIR2001DELH|494, 2002(62)DRJ589, AIR 2001 DELHI 494, (2002) 62 DRJ 589

Author: Mukul Mudgal

Bench: Mukul Mudgal

ORDER

Devinder Gupta, J.

အမှု၌အောက်ပါအတိုင်းပြဆိုသည်-

[ 7. Order 17 of the Code of Civil Procedure (for short "C.P.C.") deals with adjournments. Rule 1 or Order 17 C.P.C. vests in Court a discretion to grant adjournment to a party at any stage of the suit.

Granting of an adjournment to a party to a suit is left to eh discretion of the Court. 

The discretion is not subject to any definite rules, but has to be exercised in a judicial and reasonable manner. 

Once the Court decides to exercise discretion of granting adjournment, it is enjoined upon it to fix a date for further hearing of the suit. Clause (2) of Rule 1 of Order 17 C.P.C. enables and empowers the Court to award costs occasioned by the adjournment. 

It says "make such order as it thinks fit with respect to the costs occasioned by the adjournment".

8. The only question arising for determination is of the excessiveness of the costs imposed upon the appellant while allowing the appellant's prayer for adjournment in order to enable learned counsel for the appellant to cite fe decisions in support of the appellant's case.

9. Costs, which can be imposed by the Court and as are referred to in clause (2) of Rule 1 of Order 17 C.P.C. are also at the discretion of the Court. 

The discretion has to be exercised judiciously and within the parameters of law. 

The clause under consideration limits the extent of the costs, which can be imposed. 

In other words, costs can be imposed within the limit prescribed i.e. "which are occasioned by the adjournment". ]

စီရင်ချက်အပိုဒ် ၂၁၊၂၂၊၂၃ ရှိအောက်ပါပြဆိုချက်များမှာမှတ်သားဖွယ်ရာဖြစ်သည်-

[ 21. The aforementioned decisions affirm the principle of common law in England governing the taxing of party and party costs. 

The principle is that costs are awarded not as punishment to the defeated party, nor as a bonus to the party which receives them but as a recompense to the successful party in order to indemnify him, though not completely, for legal expenses to which he has been subjected in prosecuting his suit or his defense.

22. The above principles have ultimately received legislative recognition in Section 35-B of the Code of Civil Procedure, which provides for award of costs for causing delay in the progress of a suit. 

It, on any day fixed for the hearing of a suit or for taking any step therein, a party to the suit: (a) fails to take the step which he was required by or under the Code to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court is there under empowered, for reasons to be recorded, to make an order requiring such a party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date.

23. In the matter of award of costs in their discretion, the Courts have to be guided by the judicial dicta and the legislative prescription aforementioned. ]

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