LEGAL ISSUE: Whether a suit dismissed for default should be restored when the plaintiff demonstrates consistent effort to pursue the case. CASE TYPE: Civil. Case Name: Kusumben Indersinh Dhupia vs. Sudhaben Biharilalji Bhaiya & Anr. Judgment Date: January 9, 2019
Date of the Judgment: January 9, 2019. Citation: Civil Appeal No. 230 of 2019 (Arising out of SLP (C) No. 12794 of 2014). Judges: Justice R. Banumathi and Justice Indira Banerjee. Can a court dismiss a case for default when the plaintiff has consistently appeared for hearings? The Supreme Court of India addressed this question in a recent civil appeal, focusing on whether a suit dismissed for the plaintiff’s absence should be restored. The court considered the plaintiff’s consistent efforts to pursue the case, despite the suit’s dismissal due to their absence on a single hearing date. This judgment was delivered by a bench of Justice R. Banumathi and Justice Indira Banerjee.
Case Background
The appellant, Kusumben Indersinh Dhupia, filed a civil suit (Civil Suit No. 217 of 1994) against the respondents, Sudhaben Biharilalji Bhaiya and Bhagwandas Nandlal Bagdi, in the court of the Additional Senior Civil Judge, Surat. The suit concerned a plot of land, specifically plot no. 16-E, measuring 250 square yards, located in Village Althan, Surat. The appellant sought a declaration and injunction regarding this property. Issues were framed on October 3, 2008. However, the suit was dismissed for default on November 6, 2008.
Following the dismissal, the appellant filed an application on December 4, 2008, under Order IX, Rule 9 of the Code of Civil Procedure (C.P.C.) to restore the suit. This application was eventually dismissed on July 21, 2011, because the trial court noted that the appellant and their advocate were continuously absent, indicating a lack of interest in pursuing the matter. The appellant then filed a revision petition, Special Civil Application No. 16821 of 2011, before the High Court of Gujarat at Ahmedabad, which was also dismissed. Aggrieved by these decisions, the appellant approached the Supreme Court.
Timeline
| Date | Event |
|---|---|
| 1994 | Civil Suit No. 217 of 1994 filed by the appellant. |
| October 3, 2008 | Issues were framed in the suit. |
| November 6, 2008 | Suit dismissed for default. |
| December 4, 2008 | Application filed under Order IX, Rule 9 of C.P.C. for restoration of the suit. |
| July 21, 2011 | Restoration application dismissed by the Trial Court. |
| 2011 | Special Civil Application No. 16821 of 2011 filed before the High Court. |
| January 28, 2014 | High Court dismissed the revision petition. |
| December 4, 2018 | Substituted service was ordered for the second respondent. |
| January 9, 2019 | Supreme Court allowed the appeal and restored the suit. |
Course of Proceedings
The Trial Court dismissed the appellant’s application for restoration of the suit, citing continuous absence of the appellant and their advocate, indicating a lack of interest in pursuing the case. The High Court of Gujarat at Ahmedabad upheld the Trial Court’s decision, leading to the appellant’s appeal to the Supreme Court of India.
Legal Framework
The judgment primarily concerns Order IX, Rule 9 of the Code of Civil Procedure (C.P.C.). This provision allows a plaintiff to apply for the restoration of a suit that has been dismissed for default, provided they can demonstrate sufficient cause for their absence. The relevant part of Order IX, Rule 9 of the C.P.C. is not quoted verbatim in the judgment.
Arguments
Appellant’s Arguments:
- The appellant’s counsel, Mr. Shamik Sanjanwala, argued that the appellant had been present at almost all hearings after filing the restoration application.
- He submitted that the matter could not be taken up due to the court’s busy schedule.
- It was contended that the appellant’s absence was only on the date when the Trial Court dismissed the restoration application.
- The appellant’s counsel highlighted the Rojkam-order sheet of the Trial Court to show the appellant’s consistent presence.
Respondent’s Arguments:
- The first respondent was represented by Mrs. Saroj Haresh Raichura, Advocate. However, the specific arguments made by the respondent are not detailed in the judgment.
- The second respondent remained unserved despite attempts, and the court deemed substituted service sufficient.
| Appellant’s Submissions | Respondent’s Submissions |
|---|---|
|
|
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section. However, the core issue was whether the High Court was correct in upholding the dismissal of the restoration application, given the appellant’s consistent presence at prior hearings.
Treatment of the Issue by the Court
| Issue | Court’s Decision |
|---|---|
| Whether the High Court was correct in upholding the dismissal of the restoration application? | The Supreme Court held that both the Trial Court and the High Court were incorrect in observing that the appellant was not interested in pursuing the restoration application. The Court noted the appellant’s consistent presence in hearings and the fact that the restoration application was filed within the limitation period. |
Authorities
The judgment does not cite any specific cases, books, or legal provisions other than Order IX, Rule 9 of the C.P.C.
| Authority | Court | How it was used |
|---|---|---|
| Order IX, Rule 9 of the C.P.C. | Not Applicable | The court considered this provision to determine if the plaintiff’s application for restoration of the suit was valid. |
Judgment
| Submission by Parties | How it was treated by the Court |
|---|---|
| Appellant’s submission that they were present at most hearings and the dismissal was unjust. | The Court accepted this submission, noting the appellant’s consistent presence and the fact that the restoration application was filed within the limitation period. |
| Respondent’s (unspecified) arguments against restoration. | The Court did not find merit in the respondent’s (unspecified) arguments, given the appellant’s demonstrated interest in pursuing the case. |
How each authority was viewed by the Court?
- The Court considered Order IX, Rule 9 of the C.P.C.* to determine if the plaintiff’s application for restoration of the suit was valid.
What weighed in the mind of the Court?
The Supreme Court was primarily influenced by the appellant’s demonstrated commitment to pursuing the case. The court emphasized that the appellant had been present at almost all hearings, and the restoration application was filed within the limitation period. The court was not convinced by the lower courts’ observations that the appellant was not interested in pursuing the matter. The fact that the appellant was only absent on the date of dismissal, while having been present on numerous prior dates, weighed heavily in the Court’s decision to restore the suit.
| Sentiment | Percentage |
|---|---|
| Appellant’s consistent presence | 60% |
| Restoration application within limitation | 30% |
| Absence only on the dismissal date | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 70% |
| Law | 30% |
Logical Reasoning:
The Court’s reasoning was based on the factual record of the case, particularly the Rojkam-order sheet, which demonstrated the appellant’s consistent presence at hearings. The Court rejected the interpretation of the lower courts that the appellant was not interested in pursuing the matter, stating: *“Having regard to the Rojkam-order sheet of the Trial Court, we are of the view that both the Trial Court as well as the High Court were not right in observing that the appellant-plaintiff was not interested in pursuing the restoration application.”* The Court also noted that *“The appellant-plaintiff was present in almost all hearings before the Trial Court which indicates that he was genuinely pursing the matter.”* The Court further observed that *“The appellant-plaintiff having filed the suit for declaration and injunction in our considered view ought to be given an opportunity to pursue his suit.”* The decision was based on a straightforward application of the principle that a party should not be penalized for a single absence when they have otherwise shown due diligence in pursuing their case.
Key Takeaways
- A suit dismissed for default can be restored if the plaintiff demonstrates a genuine interest in pursuing the case.
- Consistent presence at hearings is a strong indicator of a party’s intent to pursue the matter.
- Courts should consider the overall conduct of a party, not just a single instance of absence.
Directions
The Supreme Court directed the Trial Court to restore the suit, provide sufficient opportunities to both parties, and expedite the trial. The Court also directed both parties to cooperate for the early disposal of the suit.
Development of Law
The ratio decidendi of this case is that a suit dismissed for default can be restored if the plaintiff demonstrates a genuine interest in pursuing the case, evidenced by their consistent presence at hearings. This judgment reinforces the principle that a single absence should not be the sole reason for denying a party the opportunity to pursue their case, especially when they have otherwise shown due diligence.
Conclusion
The Supreme Court’s judgment in Kusumben Indersinh Dhupia vs. Sudhaben Biharilalji Bhaiya & Anr. emphasizes the importance of considering a party’s overall conduct when deciding on the restoration of a suit dismissed for default. The Court’s decision to restore the suit underscores the principle that a party should not be penalized for a single absence, especially when they have consistently shown diligence in pursuing their case. This ruling provides a clear guideline for lower courts when dealing with similar situations.
Category
Parent Category: Code of Civil Procedure, 1908
Child Category: Order IX, Rule 9, Code of Civil Procedure, 1908
Parent Category: Civil Procedure
Child Category: Restoration of Suit
Parent Category: Court Procedure
Child Category: Dismissal for Default
FAQ
Q: What does it mean when a suit is dismissed for default?
A: A suit is dismissed for default when the plaintiff or their representative fails to appear in court on a scheduled hearing date. This means the case is closed without a decision on its merits.
Q: What is Order IX, Rule 9 of the C.P.C.?
A: Order IX, Rule 9 of the Code of Civil Procedure allows a plaintiff to apply for the restoration of a suit that has been dismissed for default, provided they can demonstrate sufficient cause for their absence.
Q: What did the Supreme Court decide in this case?
A: The Supreme Court decided to restore a civil suit that had been dismissed for default. The court found that the plaintiff had shown consistent interest in pursuing the case by attending most of the hearings.
Q: What should a plaintiff do if their suit is dismissed for default?
A: If a suit is dismissed for default, the plaintiff should promptly file an application under Order IX, Rule 9 of the C.P.C., providing a valid reason for their absence and demonstrating their intention to pursue the case.
Q: What is the significance of this judgment?
A: This judgment highlights that courts should consider a party’s overall conduct, not just a single instance of absence, when deciding on the restoration of a suit. It emphasizes the importance of giving parties a fair opportunity to present their case.