IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Rivision No.1841 of 2006 1. (a) HEMLATA BELWARIAR, W/o Late Hari Ram Belwariar, (b) Prashant Belwariar, © Rajnish Belwariar, and (d) Chitranjana Belwariar, all residents of Mohalla Mathura Prasad Sinha Road, P.S. Kadamkuan, Distt. Patna …………….. Plaintiff / Petitioner Versus 1. RAM PRASAD OJHA S/o Late Ram Rajeshwari Prasad Ojha, R/o Mohalla – Pirmuhani, P.S. Kadam Kuan, Distt. Patna, 2. Sri Ram Krishan Pd. Ojha, and 3. Sri Gopi Krishna Pd. Ojha, all sons of Sri Ram Prasad Ojha, R/o Mohalla – Pirmuhani, P.S. Kadamkuan, Town and Distt. – Patna …….. Defendants – Opposite Parties. ----------- For the Petitioners:- M/s K.N. Choubey, Sr. Advocate with Rajendra kishore, Abinash Kumar, Rajnish Belwariar and Ajit Kumar Sinha, Advocates. For the Opposite Parties:- M/s S.S. Dwivedi, Sr. Advocate with Ravi Shankar Dwivedi, R.K. Dubey & Laxaman Lal Pandey, Advocates. ---------- 12. 05.08.2009. Heard learned counsel for the parties. The petitioners are aggrieved by the order dated 13.09.2006, passed in Misc. Case No. 9/2005 by the Execution Munsif 1st, Patna, whereby the application of the petitioners filed under Order IX Rule 4 of the Code of Civil Procedure for restoration of Title Suit No. 19/1983 to its original file after recalling the order of dismissal dated 24.11.2005 had been dismissed. The petitioners filed Title Suit No. 19/1983 for 2 declaration that the defendants therein had no right to open a passage towards the plaintiff’s plot no. 1002. In addition to that, further relief for permanently restraining all the defendants from demolishing the northern boundary wall of the plaintiff’s aforesaid plot was also sought. It was contended on behalf of the petitioners that the defendants – opposite parties appeared in the title suit concerned but subsequently left the case unattended and, ultimately, the suit was decreed. The decree was levied to execution. Thereafter, Misc. Case No. 1/1988 was filed by the defendants under Order IX Rule 13 C.P.C. for setting aside the ex parte decree, which was allowed on 4.5.1999. The plaintiff – petitioner preferred Civil Revision No. 1111/1999 wherein initially further proceeding in Title Suit No. 19/1983 was stayed by this Court. However, subsequently the same was dismissed and title suit proceeded. Thereafter, the plaintiff stopped appearing in the title suit resulting in its dismissal for default. The plaintiff – petitioner filed Misc. Case No. 9/2005 under Order IX Rule 4 C.P.C. for restoration of Title Suit No. 19/1983 to its original file by recalling the order dated 24.11.2005 whereby the suit was dismissed for 3 want of prosecution. The court below upon hearing the rival submissions of the parties dismissed the aforesaid Misc. Case chiefly on two grounds. One of the grounds was that the petition itself was not maintainable on account of the fact that the defendants were present at the time of dismissal of the suit and as such the Title Suit concerned cannot be held to have been dismissed under Order IX Rule 3 C.P.C. rather the same had been dismissed under Order IX Rule 8 C.P.C. Thus, the plaintiff ought to have filed a petition under Order IX Rule 9 in place of Order IX Rule 4 C.P.C. Second ground for rejection of the aforesaid case, is that the conduct of the petitioner was found to be negligent since he had not appeared in the title suit concerned for long time. Now, I proceed to decide the question of maintainability of the Misc. Case as the first issue. The petitioner has appended certain orders of Title Suit No. 19/1983, as Annexures - 1, 2, 3, 4 & 5. Opposite Party No. 3 has also appended the order sheets of the aforesaid case from 4.6.1999 up to 24.11.2005, i.e., the date of dismissal of the aforesaid Title Suit. 4 Learned counsel for the petitioners submitted that the finding of the court below with regard to maintainability of the Misc. Case is incorrect for the reason that both the petitioner as well as the defendants were not present at the time of dismissal of the title suit. In this context learned counsel referred the order dated 24.11.2005 (Annexure-5) itself to demonstrate the absence of both sides. Mr. Shashi Shekhar Dwivedi, learned Sr. Counsel for the Opposite Parties, however, vehemently opposed the above contention. Learned counsel drew the attention of the Court towards the aforesaid order wherein it is recorded that the defendants had filed attendance (Hazari) whereas the plaintiff neither filed Hazari nor was he present at the time of passing of the aforesaid order. The contention of the learned counsel for the petitioners was that simply filing of Hazari on behalf of a party is no proof of his presence at the time of calling of the case. According to him, it is manifest from the order itself that though Hazari / attendance was filed by the defendants, but it had not been recorded in the order sheet that at the time when the case was taken up for hearing 5 the defendants had appeared. Learned counsel had placed reliance upon a decision of this Court rendered in Suraj Prasad Singh & Anr. Vs. Rambaran Singh & Ors., (AIR 1956 Patna 127). In that case the defendants had filed a petition for grant of time earlier in the suit before the court concerned on the particular date itself. However, the time petition was rejected and when the suit was called for hearing later on, no one responded to the call and the same was dismissed. In the aforesaid case, this Court had opined that though time petition was filed earlier by the defendants and was rejected, but since they did not appear later on when the case was called out for hearing, it could not be held that they had appeared at the time when the case was called for its hearing within the meaning of Rule 8 of Order IX of the Code of Civil Procedure so as to oblige the plaintiff to make an application for restoration of the suit under Rule 9 and not under Rule 4 of Order IX. The plaintiff – petitioner had placed further reliance upon a decision of this Court in Gopi Halwai Vs. Bibi Zainab Khatoon & Anr., (1974 BBCJ 212) wherein this Court has held that what is required by the provisions of relevant rules of Order IX is to mean the 6 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 out for hearing. It had further been held therein that absence of a party at the time of call although he might have filed a Hazri earlier, would not amount to his presence. The Court finally came to the conclusion that the dismissal of the suit was a dismissal within the provisions of Order IX Rule 3 of the Code. In view of the aforesaid discussions and having considered the rival submissions of the parties advanced in this regard, I find that, of course, the defendants had filed Hazari but from the order dated 24.11.2005 passed in the aforesaid Title Suit, it does not appear that they were present at the time when the suit was called for its hearing and, thus, the aforesaid dismissal was a dismissal within the meaning of the provisions under Order IX Rule 3 C.P.C. and not under Order IX Rule 8 C.P.C. Thus, the finding of the court below holding the Misc. Case concerned as not maintainable on the aforesaid ground is set aside. This Court now proceeds to consider and decide the next issue, as mentioned above. 7 Learned counsel for the petitioners submitted that earlier the defendants had appeared in the suit but subsequently they left the suit unattended and ultimately the suit was decreed in favour of the plaintiff and the aforesaid decree was put to execution by filing Execution Case No. 2/1986. However, subsequent thereto the defendants filed Misc. Case No. 1/1988, which was allowed and the aforesaid decree, having been considered as ex parte, was set aside and the suit was revived. The plaintiff – petitioner filed Civil Revision No. 1111/1999 against the aforesaid order setting aside the decree. Initially, the further proceedings in the revived Title Suit No. 19/1983 was stayed by this Court and, thus, it is claimed by the petitioner that during that period the petitioner was not required to attend the hearing of the case. It is further submitted by the petitioner that subsequent thereto the petitioner could not keep track of the same and the further dates of hearing were not known to him resulting in his non-appearance, as in the meantime the aforesaid Civil Revision was dismissed. Learned counsel for the opposite parties submitted that it would be manifest from the order sheet, 8 as contained in Annexure - A itself as up to what extent the plaintiff had been negligent. He contended that even after dismissal of the aforesaid Civil Revision, the petitioner did not appear for long time. The attitude of the plaintiff compelled the court to pass an order for getting the order-sheet seen and signed by the learned counsel appearing on behalf of the plaintiff. However, the peon concerned reported that his repeated attempt failed as the learned counsel did not sign the order sheet. Even thereafter, the court below had not dismissed the suit rather a notice was issued upon the plaintiff, but still the plaintiff did not care to appear and eventually the court concerned was left with no option but to dismiss the case for non-appearance. As such, the contention was that due to the conduct of the plaintiff, the court below was right in dismissing the application. Learned counsel for the opposite parties had placed reliance upon a decision of the Calcutta High Court in Phul Chand Ranilia Vs. Ballabhadas Agarwal and Anr., (AIR 1973 Calcutta 54) wherein the Court has refused to restore the case on the ground of repeated absence of the concerned party after holding the same as negligent conduct. It was 9 contended that there was absence of more than two years and no ground had been put forward by the petitioner for restoration of the suit. The long absence of the plaintiff is apparent from the order sheet appended as Annexure – A to the counter affidavit itself. It is also apparent that the court below had made an effort to get the order sheet signed by the learned counsel appearing for the plaintiff to enable him to know the next date of the suit concerned and the peon had reported that the learned counsel had refused to see the record. Thus, there is force in the submission of the learned counsel for the opposite parties that the court has been lenient and in place of dismissing the suit for default on 21.3.2005 itself, it had issued notice upon the plaintiff to enable him to appear before the court. However, the order sheet shows that the case was, thereafter, adjourned for several dates from 12.4.2005 to 18.10.2005 waiting for report on service of notice upon the plaintiff. The order dated 16.11.2005 shows that defendants’ Hazari was already there but the plaintiff did not file any Hazari and the next date was fixed on 24.11.2005. Subsequently, on 24.11.2005 when the 10 plaintiff did not appear, the case was ultimately dismissed. However, it does not appear from the order sheet as to whether there was effective service upon the plaintiff or not. The impugned order refers to the record and it stands recorded therein that on 19.10.2005 the service report was received by the office of the court with an endorsement that the plaintiff has gone out of Patna and he will be coming back in July, but in the subsequent orders thereto, that is, the order dated 16.11.2005, nothing has been recorded with regard to service of notice upon the plaintiff whereas previously on more than 15 occasions, the Court was waiting for such service of notice. The court below on perusal of the record has stated in its order that the service report discloses that notice has returned with an endorsement that the plaintiff is outside Patna, therefore, in my opinion, same cannot be held to be a valid service upon the plaintiff. Even if the court was intending to accept the aforesaid as valid service, still that satisfaction is not reflected from its subsequent order. It is true that on 21.03.2005 itself, as had been contended on behalf of the opposite parties, the court below could have dismissed the title suit, but the fact is that it did not find it appropriate to 11 dismiss the suit on that day; rather it had issued notice upon the plaintiff. Once notice had been issued on the plaintiff and the court, thereafter, for about on 15 occasions waited for service of report and the notice had returned back with an endorsement that the plaintiff had gone out of station, that cannot be held to be a valid service upon the plaintiff. Therefore, the subsequent order of dismissal, in the opinion of this Court, was not correct. Learned counsel for the petitioners had placed reliance upon a decision of the Apex Court rendered in Raj Kishore Pandey V. State of Uttar Pradesh & Ors., [2009 (2) SCC 692]. The relevant passage of the aforesaid decision is quoted as under:- “8. In our opinion, whether the applicant has made out sufficient cause or not, in the application filed, the Court is required to look at all the facts pleaded in the application. No doubt, the consideration of the existence of sufficient cause is the discretionary power with the Court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the Court in such matters should be to advance the cause of justice and not the cause of technicalities. A case, as far as possible, should be decided on 12 merits and the party should not be deprived to get the case examined on the merits.” In view of the aforesaid discussions and on consideration of the rival submissions of the parties, I am also of the opinion that the approach of the court in such matter should be to advance the cause of justice and not the cause of mere technicalities. That apart, once the court has issued notice upon the plaintiff then it must have waited for valid service of it upon the plaintiff. I have already held that the service of notice, since returned on 19.10.2005 with an endorsement that the plaintiff had gone out of Patna was not a valid service. As a result, I set aside the impugned order dated 13.9.2006 passed in Misc. Case No. 9/2005 by the Execution Munsif 1st, Patna and restore back the Title Suit No. 19/1983 to its original file. However, since the title suit is of the year 1983 itself, the court below is directed to dispose of the suit expeditiously and preferably within six months from the date of receipt / production of a certified copy of this order. The parties are also directed to cooperate and no adjournment should be granted by the court below 13 without any sufficient cause. As there has been long absence of the plaintiff from the proceedings resulting in the dismissal of the title suit concerned for default, and the defendants were present in the suit almost all along, this order would be subject to the payment of costs of Rs. 10,000/- by the petitioner to the defendants – opposite parties within one month from today. Accordingly, this Civil Revision is allowed. dk ( Dr. Ravi Ranjan, J. )