Every litigant ought to be afforded an opportunity of deciding the issue involved on merits without the same being scuttled on mere technicalities
In the said backdrop, if the decision in Smt. Garuda Sakuntala (supra), as relied upon by the learned advocate for the appellants - plaintiffs is taken into consideration, it held therein that, 'Past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non- appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed. The Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. The Court below ought to have considered whether there was sufficient cause for the absence of the appellant/plaintiff on 15.2.1993 only, and not the previous conduct of the appellant. Hence, the contention of the counsel for respondents, that in view of the previous conduct of the appellant in not attending the court the lower court is right in dismissing the suit for default, cannot be accepted'. It is further held that, 'Apart from that, admittedly, the appellant/plaintiff engaged an advocate to represent her case, and it appears that the said advocate did not make any representation on behalf of the appellant/plaintiff. When the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, no notice is issued to the appellant/plaintiff by the court below to that effect. On this ground also, the order under appeal is liable to be set aside'. The Court has observed that, 'Dismissal of a suit for default of the plaintiff shall always be resorted to by the courts with utmost circumspection. Before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. The procedural laws are intended to do substantial justice between the parties and not to penalize the parties'. Thus, as observed in the aforesaid decision, it is the
duty of the Court to issue notice to the party concerned before proceeding further in the matter and before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. In the case on hand also, the learned advocate representing the appellants - plaintiffs did not remain present as not keeping well and eventually, the suit came to be dismissed for default, however, no prior notice appears to have been issued to the appellants - plaintiffs.[Para No.6.2]
Adverting to the facts of the present case, the learned trial Judge has dismissed the suit for default for want of prosecution and by way of impugned order, also dismissed the application for restoration of the said suit. It was the case of the appellants - plaintiffs that since the learned advocate representing the case of the appellants - plaintiffs before the trial Court was not keeping well, he did not remain present before the Court on the date so appointed, however, the learned trial Judge did not appreciate the said fact and considering the past conduct viz. non- appearance of appellants - plaintiffs dismissed the suit for default observing that the suit is aged 10 years. It is settled law as reflected in the decision in Smt. Garuda Sakuntala (supra) that past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non-appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed and the Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. Further, as held therein, when the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, indisputably, the learned trial Judge has taken into consideration the past conduct of the appellants - plaintiffs while dismissing the suit for default and admittedly, no prior notice appears to have been issued to the appellants - plaintiffs by the learned Court below to that effect.[Para No.6.5]
At this juncture, it would be apt to note herein, as is discernible from the record, that suit in question is of the year 2007, wherein, Issues have been framed in the year 2019 only, to be precise on 28.01.2019 i.e. after a period of more than 10 years and thereafter, the suit is being dismissed for default on 05.09.2019, with one of the grounds that the suit is aged more than 10 years old, which appears to be something unjustifiable. [Para No.6.6]
The only thing which is required to be seen at the moment is whether the trial Court is justified in passing such an order and whether, the cause canvassed by the appellants - plaintiffs can be said to be the sufficient cause or not. As noted in the preceding paragraph of this judgment, it was the case of the plaintiffs that since the learned advocate representing their case before the trial Court was not keeping well, he could not remain present. Further, in view of the above-referred decision in Smt. Garuda Sakuntala (supra) that past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non-appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed and hence, the Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. Further, as held therein, when the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case also, no notice appears to have been issued to the appellants - plaintiffs by the learned Court below to that effect. It is pertinent to note here that after the aforesaid orders passed in 2011 and 2013 respectively, the suit was proceeded further and the Issues were framed in the year 2019. At the cost of repetition, it may be observed that in the suit of 2007, the Issues have been framed in 2019, on 28.01.2019 and thereafter, the same came to be dismissed for want of prosecution in 2019, on 05.09.2019. Thus, in the considered opinion of this Court, the trial Court appears to have taken a very hyper-technical view of the matter. It is trite principle of law that every litigant ought to be afforded an opportunity of deciding the issue involved on merits without the same being scuttled on mere technicalities, unless technicalities are so predominant that they overshadow the merits of the matter. The aforesaid aspects can very well be taken into consideration while adjudication of the suit if trial Court deems it fit so in the given facts and circumstances of the case.[Para No.6.11]
Gujarat High Court
Decd. Chimanlal @ Chimanji Fulaji
Vs.
Trishulam Co- Operative Housing Society Ltd.
Decided on 27/04/2021