လုံလောက်သောအကြောင်း[ sufficient cause ][ Part Three ]

 ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

လုံလောက်သောအကြောင်း[ sufficient cause ][ Part Three ]

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ရုံးချိန်းပျက်ကွက်၍ပလပ်ထားသောအမှုကိုပြန်ဖွင့်ခြင်းနှင့်သက်ဆိုင်သည့်ပြဌာန်းချက်အကြောင်းစာဖတ်သူဥပဒေပညာရှင်များကျယ်ကျယ်ပြန်ပြန့်လေ့လာဖတ်ရှုနိုင်ရန်အတွက်အင်တာနက်မှရှာဖွေကူးယူ၍အောက်ပါအတိုင်းဖော်ပြလိုက်ပါသည်။

Plaintiff's Failure to Attend Hearing: What Happens Next?

In the fast-paced world of litigation, missing a court hearing can feel like a nightmare for any plaintiff or complainant.

Whether due to oversight, illness, or unavoidable circumstances, a plaintiff's failure to attend hearing often leads to serious repercussions like dismissal of the case. 

But is it always the end? 

Courts exercise discretion, balancing justice with procedural discipline. 

This post breaks down the legal landscape, drawing from key judgments to guide you through potential outcomes, restoration paths, and prevention strategies.

Disclaimer: This article provides general information based on case laws and is not legal advice. 

Legal outcomes vary by facts and jurisdiction. 

Consult a qualified lawyer for your specific situation.

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Understanding the Consequences of Non-Attendance

When a plaintiff or complainant fails to appear at a scheduled hearing, courts may dismiss the case for default or non-prosecution. 

This principle ensures proceedings move efficiently and discourages negligence.

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Civil Suits: Dismissal Under CPC

In civil matters, Order 9 Rule 9 of the Code of Civil Procedure (CPC) governs restoration of suits dismissed for default.

If the plaintiff doesn't appear, the court can dismiss the suit under Order 17 Rule 2 or 3.

Order 17 Rule 2: Applies when a party fails to appear on the adjourned date. 

The court may dismiss if no appearance.

Order 17 Rule 3: For failure to produce evidence or perform acts despite time granted.

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A key case illustrates: The plaintiff's suit was dismissed when their advocate reported no instructions, not constituting proper appearance (mere physical presence without authority doesn't count). 

The court clarified these rules are mutually exclusive, allowing restoration under Order 9 Rule 9 if sufficient cause exists HINDUSTHAN STEEL LTD. VS PRAKASH CHAND AGARWAL - 1969 Supreme(Ori) 118.

Another example: A suit was dismissed for non-compliance with orders to file verified account extracts, exacerbated by floods preventing attendance. 

Restoration was granted, deeming the penalty excessively severe Kallappa Shivappa Chaugule VS K. V. Bawa Tobacco Shop - 1955 Supreme(Bom) 118. 

Courts apply actus curiae neminem gravabit (court's act shall prejudice no one), especially for bona fide reasons like illness JHUNU PRADHAN PANDBO KOLTA VS MAYADHAR ARJUN SOURA - 1952 Supreme(Nagpur) 108.

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Criminal Complaints: CrPC Section 256

In complaint cases (e.g., under Negotiable Instruments Act Section 138), Section 256 CrPC allows acquittal for non-prosecution. 

However, dismissal isn't automatic-courts must exercise judicial discretion.

In advanced-stage trials (e.g., post-Section 313 statement), single absence due to counsel's failure isn't grounds for dismissal if the complainant pursued diligently Bal Krishan Rawat VS Pyare Lal Nepta. 

The court restored the NI Act complaint, noting presence isn't always mandatory for defense evidence; counsel suffices.

Similarly, where miscommunication caused absence, courts emphasize deciding on merits over technicalities, restoring after costs Aspire Home Finance Corporation Ltd. Thro Satishkumar Pravinbhai Trapasiya VS State Of Gujarat - 2022 Supreme(Guj) 1271.

Mechanical dismissals are frowned upon: Acquittal without merits due to nonappearance... is improper Bal Krishan Rawat VS Pyare Lal Nepta.

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Grounds for Restoration: What Constitutes 'Sufficient Cause'?

Restoration hinges on proving sufficient cause for absence. 

Courts liberally interpret to serve justice, but diligence is key.

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Valid Excuses Typically Accepted

Illness: Proven medical evidence often suffices, e.g., plaintiff's illness led to restoration despite lower courts' refusal

JHUNU PRADHAN PANDBO KOLTA VS MAYADHAR ARJUN SOURA - 1952 Supreme (Nagpur) 108.

Counsel Issues: Lawyer strikes don't justify adjournment; advocates must attend OM PRAKASH VS MURTI DEVI - 2007 Supreme(Del) 2157. 

But counsel's bona fide absence (e.g., engagement elsewhere) may warrant leniency if client wasn't negligent Heera Lal Chhabra VS Nawal Kishore Agrawal - 2023 Supreme(All) 694.

Unavoidable Circumstances: Floods, miscommunication, or court errors qualify Kallappa Shivappa Chaugule VS K. V. Bawa Tobacco Shop - 1955 Supreme(Bom) 118 Aspire Home Finance Corporation Ltd. Thro Satishkumar Pravinbhai Trapasiya VS State Of Gujarat - 2022 Supreme (Guj) 1271.

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Invalid or Weak Excuses

Repeated negligence or lack of diligence leads to rejection M/S VASANTA BHAVAN HOTELS IN vs VASANTHA BHAVAN - 2024 Supreme(Online) (MAD) 20119.

Late-stage non-attendance without explanation, especially post-restoration, risks closure of evidence Marri Rani vs Marri Gana Mallaiah - 2023 Supreme(Online) (TEL) 2610.

In one NI Act case, the Magistrate restored despite counsel's absence, as the trial was near completion and stake was high (Rs. 20 lakhs) Bal Krishan Rawat VS Pyare Lal Nepta - 2018 Supreme(HP) 24.

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Court Discretion and Judicial Trends

High Courts oversee via Articles 226/227 (writs/supervision). 

Even post-PC amendments curtailing revisions, constitutional jurisdiction persists for gross jurisdictional errors or failure of justice Surya Dev Rai VS Ram Chander Rai - 2003 5 Supreme 390.

Key principles from precedents:

- Decide on Merits: Avoid default dismissals where possible; adjourn if justice demands Alice George VS Deputy Superintendent of Police - 2002 Supreme (Ker) 15.

- No Automatic Acquittal: In NI Act, weigh stage of trial and complainant's intent Bal Krishan Rawat VS Pyare Lal Nepta.

- Diligence Required: Persistent failure (e.g., ignoring case management) justifies dismissal M/S VASANTA BHAVAN HOTELS IN vs VASANTHA BHAVAN - 2024 Supreme (Online) (MAD) 20119.

In maintenance cases under CrPC Section 125, absence doesn't bar claims if neglect/refusal is proven otherwise Narayan Sahu VS Sushama Sahu.

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Steps to Take If Your Case is Dismissed

1. File Restoration Application Immediately: Under Order 9 Rule 9 (civil) or Section 256 CrPC (criminal). 

Plead sufficient cause with evidence (affidavits, medical records).

2. Pay Costs: Courts often impose costs as condition Aspire Home Finance Corporation Ltd. Thro Satishkumar Pravinbhai Trapasiya VS State Of Gujarat - 2022 Supreme(Guj) 1271.

3. Appeal/Revisions: If denied, approach Sessions/High Court.

4. Prevent Future Issues: Track dates, authorize counsel fully, use e-filing alerts.

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Key Takeaways

Plaintiff's failure to attend hearing risks dismissal but isn't fatal if restored promptly.

Courts prioritize substantive justice over procedural lapses, especially with bona fide reasons.

Lawyer strikes or single absences rarely excuse non-attendance; personal diligence matters.

Always document excuses; liberal restoration aids genuine litigants.

| Scenario | Likely Outcome | Restoration Chance |

| lllness with proof | Dismissal, but high restoration | High JHUNU PRADHAN PANDBO KOLTA VS MAYADHAR ARJUN SOURA - 1952 Supreme(Nagpur) 108 |

| Counsel absence (diligent client) | Possible acquittal/dismissal | Medium-High Bal Krishan Rawat VS Pyare Lal Nepta |

| Repeated negligence | Permanent dismissal | Low M/S VASANTA BHAVAN HOTELS IN vs VASANTHA BHAVAN - 2024 Supreme Online) (MAD) 20119 |

| Lawyer strike | No adjournment | Low OM PRAKASH VS MURTI DEVI - 2007 Supreme(Del) 2157 |

In summary, while procedural rules enforce accountability, Indian courts lean towards mercy for genuine slips. 

Stay vigilant—your case's fate may hinge on one hearing. 

For tailored advice, reach out to a legal expert.

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The case Jhunu Pradhan Pandbo Kolta vs Mayadhar Arjun Soura - 1952

Supreme (Nagpur) 108 is a Nagpur High Court judgment regarding procedural law, often cited in the context of restoring a case dismissed for default. 

The ruling emphasizes that courts should adopt a liberal interpretation of "sufficient cause" when a plaintiff fails to attend, allowing restoration if valid reasons (such as illness) are proven, aiming for justice over technical defaults.

Key Takeaways:

• Court/Jurisdiction: High Court of Nagpur.

• Case Citation: 1952 Supreme(Nagpur) 108.

• Context: The decision often serves as a precedent for restoring suits when the plaintiff was unable to attend due to iustifiable reasons.

• Key Legal Issue: Interpretation of "sufficient cause" for non-appearance under procedural rules.

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1952 Supreme(Nagpur) 108 (often cited as Nagpur High Court rulings from that era) pertains to procedural law, emphasizing that a suit dismissed for default can be restored if sufficient cause is shown for non-appearance. 

This precedent reinforces that such dismissals, which are not decisions on merits, do not bar restoration. 

Key Principles regarding Default Dismissal Restoration:

• Restoration Process: When a suit is dismissed for default, the plaintiff's primary remedy is to file an application for setting aside the dismissal under Order 9 Rule 9 of the CPC.

• Sufficient Cause: The party must satisfy the court that they were prevented by "sufficient cause" from appearing when the case was called.

• Procedural Law: It highlights the court's procedural discretion to restore matters to the file to ensure justice is not denied due to technical defaults.

• Scope of Application: These principles apply to various proceedings, including land acquisition references and other civil suits.

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အောက်ပါတို့သည်လုံလောက်သောအကြောင်းများဖြစ်သည်-

-အမှုသည်များကိုအသိမပေးဘဲအမှုကိုရုံးပြောင်းခြင်း။

A.I.R. 1934 Lahore. 91.

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- ရုံးပိတ်ရက်တွင်ရုံးချိန်းခြင်း။

Mst. Umat-ul-Mughni Begum v. Saliq Ram AIR 1915 Lahore 476.

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- ရုံးချိန်းသည်ရုံးပိတ်ရက်နှင့်တိုက်သွားရာမှနောက်တနေ့တွင်အမှုကိုခေါ်ခြင်း။

Raghunandan Lohar Vs Bachu Singh and Others AIR 1940 Patna 475.

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- ဖျားနာ၍တရားလိုရုံးသို့မလာနိုင်ခြင်း

[ Jhunu Pradhan v. Mayadhar AIR 1954 Nag 62, is followed, in which it is laid down as to what will be a sufficient cause. It is held therein as under:--

In deciding that a suit dismissed in default should be restored under Order 9, rule 9, what has 10 be considered is whether the party was really trying to appear on the date fixed for the case and if he honestly intended to be present not being guilty of anything in the way of misconduct or gross negligence, then he should not be deprived of his chance of being heard. 

Each case has to be decided on its own fact but the exercise of discretion should not be far from equitable considerations arising from those facts.

Thus where it was clear from the order sheets of the trial Court that the plaintiff was throughout diligent in proceeding the suit that several adjournments were given by the Court for no default of the plaintiff, that on the date on which the suit was dismissed in default, no evidence was to be recorded, that there was no doubt that the plaintiff had been lacking and the evidence adduced by the plaintiff about his illness had not been rebutted :

Held : That the trial Court failed to see that the principle actus curiae neminem gravabit (an act of the Court shall prejudice no man) applied. 

The plaintiff, who was all along diligently prosecuting the suit, would not be dilatory against his own interest by remaining deliberately absent on the date of hearing. 

Thus there was sufficient cause for his non appearance and the order of dismissal of the suit could be set aside. ]

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Girja Devi & Anothers v. Indranath Saxena & Others

(High Court Of Madhya Pradesh)

Miscellaneous Appeal No. 23 Of 1980 | 02-05-1981

အမှုတွင်တရားသူကြီး A.R. Navkar, J. ကအောက်ပါအတိုင်းမြွက်ဆိုသည်-

[ 6. The learned trial Court has dismissed the application of Smt. Girja Devi, saying that the medical certificate given to her should not be believed as it is very difficult to accept the proposition that the Doctor did not charge any fees for treating the petitioner during her illness and that the certificate of the doctor was given by him some 4 or 5 days prior to the filing of the application. 

The other ground for rejecting the application is that the learned Court has disbelieved the statement of Girja Devi when she has stated that even though she was ill during the period for which she has produced the medical certificate, the Principal of her school allowed her only to mark her presence and to go home as working in School hours will be hazardous to her health. 

Learned trial Court has disbelieved this statement, saying that Girja Devi has not produced in evidence the concerned Principal to substantiate her statement and in a Government Institution, grant of such a concession is very difficult to be believed. 

But, I do not find anything to come to such a conclusion. 

If the plaintiff was very much particular to show that whatever has been stated by Smt. Girja Devi is false and the certificate obtained is not correct, then in rebuttal, the plaintiff should have produced the witnesses to rebut the fact. 

There is nothing on the record to come to a conclusion that Girja Devi is giving a false evidence. 

Girja Devi was attending the case throughout and she was also contesting the suit. 

Provisions under Order 9, rule 13 CPC are not penal in nature; and what is to be seen when an application under Order 9, rule 13, CPC is filed before the Court is laid down in Fulsing v. Budhiyabai 1962 JLJ SN 123, which is as under:--

The provisions of Order 9, Civil Procedure Code are not penal. 

In the absence of any clear motive for defendant to have deliberately absented himself from the Court on the date of passing exparte decree the Court should hold that the defendant made out sufficient cause for his non-appearance.

The rules of procedure should not be so strietly applied as to deny justice to the party unless the Court is satisfied that the party had a clear motive for his non-appearance and he deliberately absented to achieve that motive.

In the said Judgment, a Judgment of this Court in Jhunu Pradhan v. Mayadhar AIR 1954 Nag 62, is followed, in which it is laid down as to what will be a sufficient cause. 

It is held therein as under:--

In deciding that a suit dismissed in default should be restored under Order 9, rule 9, what has 10 be considered is whether the party was really trying to appear on the date fixed for the case and if he honestly intended to be present not being guilty of anything in the way of misconduct or gross negligence, then he should not be deprived of his chance of being heard. 

Each case has to be decided on its own fact but the exercise of discretion should not be far from equitable considerations arising from those facts.

Thus where it was clear from the order sheets of the trial Court that the plaintiff was throughout diligent in proceeding the suit that several adjournments were given by the Court for no default of the plaintiff, that on the date on which the suit was dismissed in default, no evidence was to be recorded, that there was no doubt that the plaintiff had been lacking and the evidence adduced by the plaintiff about his illness had not been rebutted :

Held : That the trial Court failed to see that the principle actus curiae neminem gravabit (an act of the Court shall prejudice no man) applied. 

The plaintiff, who was all along diligently prosecuting the suit, would not be dilatory against his own interest by remaining deliberately absent on the date of hearing. 

Thus there was sufficient cause for his non appearance and the order of dismissal of the suit could be set aside.

In the non-appearance of the party is due to illness and if there is no rebuttal on the part of the other side, then how the case is to be considered is as laid down in Kasturibai v. Kuntibai 1978 (1) MP WN 403, as under :--

The only point in controversy in the present appeal is whether the appellant had made out sufficient cause for her absence on 31-1-1976 According to the trial Court she failed to establish sufficient cause for her non appearance on account of illness. 

Having gone through the evidence on record in that regard, this Court finds that the appellant-examined herself and the doctor who treated her.

The respondent neither examined herself nor any witness. 

Even the reply which was submitted to the application under Order 9, rule 13 of the Code, filed by the appellant before the trial Court, the respondent did not swear any affidavit in support of her reply. 

In these circumstances, this Court finds it difficult to appreciate the reasoning of the trial Court that the evidence of the appellant is lacking so as to constitute sufficient cause.

The principles which are to be seen while deciding an application under Order 9, rule 13 CPC are laid down in Jaiprakash v. Motilal 1980 (1) MPWN 103. 

It reads as under:

.....In appreciating evidence, the Courts below seem to have overlooked an important decision of this Court reported in 34 MPLC 210 =ILR 1948 Nag. 252-1949. NLJ 83. Kashirao Padanji v.Ramchandra Balaji Marathe. 

The placitums need be cited for their advantage :

"Provisions of Order 9, are never meant to be penal provision and it is duly clear in cases of gross negligence and mis-conduct that a party should be deprived of the opportunity of having a satisfactory disposal of the case, which evidently can only be done when both parties have full opportunity of placing their case and evidence before the Court."

In the absence of any clear motive for the defendant to have deliberately absented himself from the Court on the date fixed for hearing of the case, the Court should set aside exparte Order. 

Rule of procedure should not be too strictly applied to deny justice to the party unless the Court is satisfied that the party had a clear motive for his non-appearance and be deliberately remained absent to achieve that motive.

Similar is the view axpress in Kusum Vaishya v. Ravindra Saran Vaishya [1] The relevant portion from the Judgment reads thus:-

It is well settled by a number of authorities, which are often repeated, that the provisions of Order 9 are not penal, that it is only in clear cases of gross negligence and misconduct that a party should be deprived of the opportunity of having a satisfactory disposal of the case, which evidently on be done only when both the parties have full Opportunity to place their respective caws and evidence before the Court, that, in the absence from the Court on the date fixed for hearing of the case, the party must be held to have made out sufficient cause for absence. 

The rule of procedure should not be too strictly applied to deny justice to the party unless the Court is satisfied that the party had a clear motive for his non-appearance and the absence was deliberate to achieve that object, It is, however, not meant thereby that the Court should find out sufficient cause where none exists.

Again similar view was taken in Anandkumar and others v. Rev Na henial Peters and others 1977 (II) MPWN 509. 

The relevant portion from the Judgment reads thus :

The trial Court after examining the evidence led by the parties has found that the defendant was really ill. (sic) this basis that the exparte decree was set aside. 

The learned counsel for the plaintiffs-applicants has argued that the trial Court has also observed that the defendant was negligent in not informing his counsel. 

It is true that there is some such observation in the last paragraph of the order, but it does not mean that the trial Court did not hold that there was no sufficient cause for the defendants non-appearance. 

As earlier stated that there is a clear finding that the defendant was really ill. 

This implies that on the date of hearing he was unable to go to the Court because of illness, that, in the opinion of this Court, amounts to sufficient cause. 

A more prudent litigant would have informed his counsel by sending a messenger and instructed him to take an adjournment but from this lapse it cannot be concluded that the defendant had no sufficient cause for his non-appearance.

Added to these things, the Court has not taken into consideration the provisions of Order 32 rule 3, CPC. 

That being the case, I am of the view that the order of the trial Court, dismissing the application filed by Girja-devi is penal in nature even though the appellant has given sufficient cause for her absence on the date on which the exparte decree and order were passed. ]

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