1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 176 OF 1988 Manabai w/o Ranba Madke (since deceased through her L.Rs.) Arun Ranba Madke, Age 45 years, Occ. Service, R/o. Pune, District Pune ...Appellant Versus 1 Atmaram Sakharam Sutale, 2 Ramdas Ambadasrao Kulkarni (since deceased through L.Rs.) 2-A Padmakar Ramdas Kulkarni, Age 50 years,Occ. Agril, R/o. Talkhed, Tq. Majalgaon District Beed. 2-B Vijaykumar Ramdas Kulkarni, Age 45 years, Occ. Service, R/o. Talkhed, Tq. Majalgaon District Beed 3 Nana Venkoba Kawade, ...Respondents ..... Mr. S.V. Gangapurwala, advocate for the appellant Mr. Milind Patil Beedkar, advocate for respondent No. 1 ..... CORAM: R.G. KETKAR, J. DATED: 21ST NOVEMBER, 2009 2 JUDGMENT:- 1 This appeal is directed against the judgment and decree dated 16.1.1988 passed by the learned Additional District Judge, Beed in Appeal No. 63 of 1986. By that judgment, the learned District Judge allowed the appeal preferred by the original plaintiff and set aside the judgment and decree dated 20.1.1986 passed by the learned C.J.J.D. Majalgaon in R.C.S. No. 155 of 1980. The learned District Judge decreed the suit instituted by the plaintiff and declared that he is the owner of the suit lands. The learned District Judge further restrained the defendant Nos. 1 to 3 from causing any obstructions to the possession and Vahiwat of Atmaram in the suit lands. The cross objection preferred by respondent No.1/defendant No.1 were dismissed. The appeal was admitted by this Court on 13.9.1988. At the time of admission of the second appeal, the ground Nos. 3 and 4 were raised as involving substantial questions of law. The ground Nos. 3 and 4 of the appeal, read as follows:- 3 The learned Additional District Judge should have held that the fresh suit in respect of the same cause of action is not maintainable, as the earlier suit viz. Regular Civil Suit No. 100 of 1973 was dismissed under order IV Rule 8. 4. The learned Additional District Judge erred in appreciating legal 3 proposition laid down by rules 8 and 9 of Order IV of the Code of Civil Procedure. 2 The relevant and material facts for disposal of the present second appeal are as follows:- The suit lands and other lands were originally owned by one Bapu. The undisputed pedegree given in para 2 of the plaint is as under:- Pedegree Bapu _____________|_____________ | | Dada Tatya | | ------------------------------- ------------------------------ | | | | Maruti Aba Nathyaba Sakharam | | | | Tanabai (wife) Sonabai (wife) Atmaram (son) | Plaintiff Manabai (daughter) (Defendant No.1) It would be evident from the perusal of the above pedegree that Bapu had two sons viz. Dada and Tatya. Dada died leaving behind two sons Maruti and Aba. Tatya who belongs to other branch died leaving behind two sons viz. Nathyaba and Sakharam. The plaintiff is 4 the son of Sakharam and Manabai, defendant No.1 is the daughter of Maruti and Tanabai. 3 After death of Bapu, Dada and Tatya inherited the suit lands left by Bapu. It is not in dispute that Dada was elder brother of Tatya and that they were having separate ½ share each in the suit lands. Patta rate were recorded in the name of Dada and Shikmi rights were recorded in the name of Tatya. It is the case of the plaintiff that Maruti died in the year 1933 and after his death Aba, other son of Dada became owner of the suit lands being the only male heir of the branch of Dada. After the death of Maruti, Tanabai performed second marriage to one Nana Kavde, who is defendant No.3 in the present case. Aba died some time in the year 1964. After the death of Aba, his wife Sonabai succeeded the property of Aba and became owner of the same. On 6.6.1976, Sonabai executed gift deed in respect of suit lands and one another land bearing survey No. 234/A in favour of the plaintiff. The plaintiff claimed ownership as also possession in respect of the suit lands by virtue of the gift deed. The plaintiff had earlier instituted R.C.S. No. 100 of 1973, which was dismissed in default on 24.2.1977. The plaintiff filed restoration application and it has come on record that same was dismissed on 31.12.1979. It is the case of the plaintiff that the said suit was dismissed in default Under Order IX Rule 3 of the Code of Civil Procedure 1908 (in short “C.P.C.”) and the present suit is instituted on the same cause of action as per Order IX 5 Rule 4 of C.P.C. The suit is for declaration of ownership and for perpetual injunction restraining the defendants from disturbing the possession of the plaintiff. It is further case of the plaintiff that the defendant No.2 Ramrao Ambadas was serving as Talathi, and on the basis of the understanding arrived between defendant No.2 and Manabai, defendant No.1 that she should give share in the suit land to him, he entered name of Manabai as heir of Maruti. The plaintiff further alleged that there was agreement between defendant Nos 1 and 2 that on her succeeding to get the lands recorded in her name as heir of Maruti, she would give ½ of the share of the lands to defendant No.2. Defendant No.2 effected mutation entry 255 which indicated that Sonabai and Manabai are heirs and legal representatives of Aba. This was done without any notice to the plaintiff. The plaintiff challenged the said entry by filing appeal. The plaintiff asserted that defendant No.1 Manabai was never in possession of the suit lands and she has no concern with the suit lands. 4 After effecting the aforesaid entry 255 and getting her name entered into the revenue record, defendant No.1 filed R.C.S. No. 119 of 1968 for partition against Sonabai, Nathaba, Sakharam and present plaintiff. It is the case of the plaintiff that Manabai made false representation to the court stating that the matter is settled out of the Court and withdrew the suit. It it the case of the plaintiff that by virtue of the entry in the revenue record, the defendants started threatening 6 his possession over the suit lands and consequently he filed R.C.S. No. 100 of 1973 for declaration and ownership. Since the said suit was dismissed in default, the present suit was instituted. 5 The defendant Nos. 2 and 3 did not file written statement and the suit proceeded against them without written statement. Defendant No.1 resisted the suit by filing written statement at Exh.26. It is her contention that after death of Bapu, there was partition between Dada and Tatya. Dada got 8 Anna share whereas Tatya got remaining 8 Ana share. In so far as 8 Ana share, which fell to Dada, partition was effected between Maruti and Aba and Maruti got 4 Ana share and Aba got remaining 4 Ana share. It is thus the case of defendant No.1 Manabai that she is in possession of this 4 Ana share, which is to the north-west side and remaining 4 Ana share is to the north-east side which is in possession of Aba. After death of Aba in 1964, share of Aba to the extent of 4 Ana went to Sonabai. She further alleged that Sonabai did not execute any gift deed in favour of the plaintiff and also did not put him in possession of the suit land. The defendant No.1, therefore, asserted that the plaintiff is not owner of the suit land on the basis of the alleged gift deed. 6 On the basis of the pleading of the rival parties, the learned trial Judge framed necessary issues. The parties led oral as well as documentary evidence. The learned trial judge held that the plaintiff 7 proved his title over the suit lands on the basis of the gift deed dated 6.6.1967 executed by Sonabai as also he established his actual possession over the suit land. In so far as the contention of defendant No.1 that there was partition between Maruti and Aba, 10 years after the death of Dada, is concerned, the trial Judge negatived the said contention. Thus, the learned Trial Judge substantially decided in favour of the plaintiff. The plaintiff however, was non suited on the ground that earlier suit filed by the plaintiff i.e. R.C.S. No. 100 of 1973, was dismissed in default. That order was in terms of the provisions of Order 9 Rule 8 of C.P.C. In view thereof, the plaintiff is precluded from instituting the subsequent suit on the same cause of action as per Order 9 Rule 9 of CPC. The learned trial Judge dismissed the suit. 7. Being aggrieved by this decision, the plaintiff preferred appeal before the learned District Judge, being R.C.A. No. 63 of 1986. After hearing the parties, the learned District Judge allowed the appeal and set aside the judgment and decree dated 20.1.1986 in R.C.S. No. 185 of 1980. The learned District Judge, decreed the suit. The learned District Judge held that the plaintiff Atmaram is the owner of the suit lands and issued permanent injunction restraining the defendants from causing any obstructions to the possession and Wahiwat of Atmaram in the suit land. 8 While allowing the appeal, the learned District Judge came to 8 the conclusion that the order of dismissal of suit in default dated 24.2.1977, is referable to the order 9 Rule 3 of C.P.C., and consequently, the plaintiff is entitled to institute subsequent suit on the same cause of cation as per Order 9 Rule 4 of C.P.C. It is against this decision, the present second appeal is filed. 9 As noted earlier, the second appeal was admitted on the ground Nos. 3 and 4 of the appeal memo, which raise substantial questions of law. 10. I have heard Shri Gangapurwala, learned counsel for the appellant in support of this appeal and Shri Milind Patil Beedkar, learned counsel for respondent No.1. Shri Gangapurwala, learned counsel for the appellant submitted that the learned District Judge committed serious error in treating the order dated 24.2.1977 as referable to the Order 9 Rule 3 of C.P.C. He contended that in the appeal, certified copy of Roznama of R.C.S. No. 100 of 1973 was produced at Exh.34. Perusal of the Roznama of 24.2.1977 clearly indicates the presence of defendant’s counsel. If that be so, the dismissal order dated 24.2.1977 is clearly referable to Order 9 Rule 8 of C.P.C. In view of Order IX, Rule 9 of C.P.C., the subsequent suit on the same cause of action is not maintainable. The learned District Judge ought to have dismissed the suit. 9 11 On the other hand, Shri. Patil, learned counsel for the respondent No.1 submitted that order dated 24.2.1977, does not record presence either of dependent or his advocate and consequently, the order dated 24.2.1977 is referable to Order 9 Rule 3 of C.P.C. He further submitted that what is relevant is factual position when the suit was called on for hearing. If the defendant and/or his counsel, is not present at the time when the suit was called on for hearing, the presence of defendant’s counsel reflected in the Roznama will not lead to conclusion that the the defendant's counsel was actually present at the time when the suit was called on for hearing. He further submitted that even in the deposition, defendant No.1 deposed that she was present when suit was called on for hearing. It is relevant to note, according to learned counsel, that the defendant No. 1 did not depose that her advocate was present on 24.2.1977 when the suit was called on for hearing. In view of the rival contentions raised on behalf of the parties, if the record of the case is perused, it would be evident that earlier suit bearing R.C.S. No. 100 of 1973 was dismissed in default. The said order reads as under:- “The plaintiff absent, his counsel absent. Case was fixed for evidence. The suit is dismissed in absence. No order as to costs. 10 In so far as certified copy of Roznama at Exh.34 in the appeal is concerned, the Roznama dated 24.2.1977 reads as under;- “The plaintiff is not present. His counsel is also absent. Defendant’s counsel Shri. Bhagwantrao is present, order passed below Exh.1. Suit is dismissed in default, no order as to costs.” Now perusal of the order dated 24.2.1977, shows that the learned trial Judge has not recorded either way about the presence of defendant or his counsel i.e. Whether the defendant or his counsel were present or not. Learned trial Judge also has not specified as to whether he has dismissed the suit under Order 9 Rule 3 or under Order 9 Rule 8 of C.P.C. Though Roznama of R.C.S. No. 100 of 1973 dated 24.2.1977 records presence of defendant’s counsel, in the oral evidence of defendant No.1, however, she deposed that she was present on 24.2.1977 when the suit was actually called on for hearing. The moot question therefore, is whether the earlier suit of the plaintiff was dismissed under Order 9 Rule 3 or under Order 9 Rule 8 of C.P.C. If it is held that the earlier suit is dismissed under Order 9 Rule 3, then the plaintiff is entitled to institute subsequent suit on the same cause of action under Order 9 Rule 4, subject to the Law of Limitation. However, if it is held that earlier suit is dismissed in default under 11 Order 9 Rule 8, consequently, the plaintiff would be precluded from instituting the subsequent suit on the same cause of action under Order 9 Rule 9 of C.P.C. 12 Shri Gangapurwala, learned counsel for the appellant has submitted that learned trial Judge has signed the Roznama of 24.2.1977, which records the presence of defendant’s counsel. He submitted that having regard to Section 114 (e) of the Indian Evidence Act, 1872, there is presumption that judicial and official acts have been regularly performed. In view of this provision, he submitted that even though the order dated 24.2.1977 does not record the presence of defendant or defendant’s counsel, having regard to the Roznama dated 24.2.1977, signed by the learned trial Judge, the court will have to proceed on the premise that the defendant’s counsel was present when the suit was actually called on for hearing. 13 On the other hand, Shri Patil, learned counsel for respondent No.1 submitted that what is material is the presence of the parties when the suit was called on for hearing. He submitted that the order dated 24.2.1977, admittedly, does not disclose presence or absence of the defendant or her counsel. If at all, as deposed by the defendant that she was present on 24.2.1977, when actually the suit was called on for hearing, the Court is not bound to straightway dismiss the suit in default of the plaintiff’s presence. The court is entitled to call upon the 12 defendant to find out whether the defendant admits the claim in its entirety or part thereof, in which case the court would pass decree against the defendant upon such admission, and, where only part of the claim has been admitted, the court can dismiss the suit so far as it relates to the reminder. This is as per the provisions of Order 9 Rule 8 of C.P.C. Since the suit was for evidence, nonetheless even under Order 18 Rule 1 thereof the plaintiff has a right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled any part of the reliefs, which he seeks in which case the defendant has right to begin. Thus, at the stage of recording of evidence in the suit, even though the plaintiff has right to begin, the defendant can be called upon to ascertain whether the facts alleged by the plaintiff are admitted by him or not and the court is not bound to dismiss the suit in default on account of plaintiff’s absence. In support of this submission, Shri Patil, relied upon (i) Abdul Haque Vs. Kutubuddin Ahmed and others, AIR 1985 Gauhati 59, ii) Suraj Prasad Singh and Anr. Vs. Rambaran Singh and others, AIR 1956 Patna 127 and iii) Gopi Halwai Vs. Bibi Zainab Khatoon, AIR 1975 Patna 42. 14 In the case of Abdul Haque (supra), the learned Single Judge of Gauhati High Court held that merely because only plaintiff’s absence was recorded in the order, it did not cease to be an order 13 under Order 9 Rule 3. It is only when a Court is cognizant of defendant's presence on the date fixed for peremptory hearing of the suit despite the absence of the plaintiff that Rule 8 is attracted. So also by merely filing hazira, the requirement of Rule 8 is not satisfied. Because the hazira does not conclusively establish the presence of the defendant when the suit was called on for hearing. Because, before the order contemplated under Order 9 Rule 8 is passed, he must physically appear before the Court, either personally or through counsel and his presence must be recorded to enable the Court to hear him before passing the order. The Court cannot dismiss the suit in toto merely to penalize the plaintiff for his absence. Rules of procedure are to be so construed as to advance and not defeat, the remedy. Mere non-mentioning in the order absence of “either party” would not take it out of the purview of Rule 3. 15 In the case of Suraj Prasad Singh and another (supra) the learned Single Judge of Patna High Court held that what Rule 3, or Rule 8 of Order 9 of the C.P.C. requires is appearance of the parties when the suit is called on for hearing and not appearance in the suit itself or even physical presence of a party in the Court room, if he chooses to be silent, and does not respond to the call. The Court is not expected to know every party and to find out for itself which party is present, and which party is not present. It is for the party concerned to file hazari to show his readiness, or respond to the call, or to inform 14 the Court that he is present. If he does not choose to do any of these things, he cannot be considered to have appeared when the suit is called on for hearing. 16 In the case of Gopi Halwai (supra), the facts are that on 2.7.1971, hazri was filed on behalf of the plaintiff. When the suit was called on for hearing, nobody responded to the call on behalf of the plaintiff. Defendant’s lawyer was present in the court and the suit was dismissed on the ground of non prosecution. The plaintiff took out an application on 6.7.1971 for restoration of the suit. On behalf of the defendant, it was submitted that the filing of hazri on behalf of the plaintiff on 2.7.1971, would amount to the appearance of the plaintiff and his absence to respond to the call when the suit was called on for hearing, would not make the provisions of Rule 8 of Order 9 of the C.P.C. applicable to the facts of the present case and, therefore, the application filed by the plaintiff under Order 9, Rule 9 of the C.P.C. was not maintainable and the plaintiff ought to have filed regular appeal under Section 96 of CPC. The Court considered the judgment of the Patna High Court in Suraj Prasad (supra) and held that although a hazri was filed on behalf of the plaintiff, he did not appear when the suit was called on for hearing and that is exactly what is required by the provisions of the relevant Rules of Order 9 to mean the presence of the parties, that is, the parties must show their presence by responding to the call of the court when a suit or a case is called on for 15 hearing. Absence of a party at the time of the call although he might have filed a hazri earlier, would not amount to his presence. 17 Shri Gangapurwala, learned counsel for the appellant relied upon judgment of this court in the case of Smt Shahnaz Shaharyari @ Shirin Shaharyari Vs. Dr. Vijay Yeshwant Gawande, AIR 1995 Bombay 30. He submitted that Roznama dated 24.4.1977 in R.C.S. No. 100 of 1973, is a matter of judicial record and the same was duly signed by the learned Judge. Its veracity cannot be doubted. He invited my attention to paras 19 and 24 of the said judgment. The facts of that case are that the petitioner Shahabaz filed petition under Article 226 and 227 of the Constitution of India challenging the execution proceeding pending before the Family Court at Mumbai, being Regular Darkhast No. 186 of 1993, in M.J. Petition No. A-702 of 1990. She contended that the respondent husband started harassing her and he per force took her signature on some papers. Subsequently, he approached the Family Court for dissolution of marriage without her consent on the basis of those papers. A decree for divorce was passed on 20.11.1990. In para 18 of the judgment, several documents were referred to and in para 19 of the judgment this court observed that the petitioner not only levelled allegations against the respondent that he has per force obtained her signature on the alleged divorce petition as also on other documents, but has levelled serous allegations against the 4th Family Court, Bombay. The respondent 16 asserted that these allegations were totally false and imaginary. Learned counsel for the respondent therein submitted that the matters of judicial record are unquestionable and they are not open to doubt. Reliance was placed upon the judgment of the Apex Court in the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak, AIR 1982 SC 1249. In the case of State of Maharashtra (supra), the Apex Court observed thus;- “We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial Decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into arena. Judgments cannot be treated as mere counters in the game of litigation. We are bound to accept the statement of the Judges recorded in their judgments, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements as Bar or by affidavit and other evidence.” After considering the judgment of the Apex Court, this court in para 24, observed that the matters of judicial record are unquestionable in as much as they are not open to doubt. The decree passed by the Family Court and consent terms incorporated therein are very much in force till date and cannot be quashed as sought by the petitioner. 17 17 In my opinion, the judgment relied by the appellant does not advance his case any further. In the present case, undisputedly while dismissing the suit in default on 24.2.1977, the court did not record presence of either defendant or her counsel. In the Roznama of 24.2.1977, the presence of defendant No.1’s counsel was recorded and this Roznama was signed by the learned Trial Judge. In view of the judgments in the case of Suresh Prasad (supra) and Gopi Halwai (supra), the presence of the party or his counsel, when the suit was actually called on for hearing, is material. 18 Shri Gangapurwala, learned counsel for the appellant further relied upon the judgment of this Court in the case of Pratapchand Laakhamaji Jain Vs. Smt. Lilabai Krishanath Surve, 1998 (3) Mh.L.J. 252. In that case the suit was fixed for recording of plaintiff’s evidence. The plaintiff and his advocate were absent. The defendant’s advocate was present. Considering this