Swami Joytirghananda Vs. Deputy Commissioner, Khulna and others, 28 DLR (AD) (1976) 158

Case No: Civil Appeal No. 29-D of 1969

Judge: D.C. Bhattacharya,

Court: Appellate Division ,,

Advocate: Faqeer Shahabuddin Ahmad,,

Citation: 28 DLR (AD) (1976) 158

Case Year: 1976

Appellant: Swami Joytirghananda

Respondent: Deputy Commissioner, Khulna and others

Subject: Parties to a suit, Procedural Law,

Delivery Date: 1975-12-9

Supreme Court
Appellate Division
Ahsanuddin Choudhury, J.
Kemaluddin Hossain, J.
Debesh Chandra Bhattacharya, J.
Swami Joytirghananda
Deputy Commissioner, Khulna and others
Dec 9, 1975
Code of Civil Procedure (V of 1908)
Order 9 Rule 4
Absence of the party concerned when the case is called on for hearing resulting in its dismissal— Dismissal order may be set aside on proper grounds being shown.
Order 9          
Principles governing judicial procedure in relation to matters falling under Order 9 of the C.P. Code— Absence of a party or his advocate from the Court—the High Court is to see what was due to.
Lawyers Involved:
B.N. Chowdhury, Advocate, instructed by A. Rab-II, Advocate-on-Record—For the App­ellant.
Faqeer Shahabuddin Ahmed, Attorney-General, instructed by A.M. Khan Chowdhury, Advocate -on-Record.—For the Respondent Nos. 1 and 2.
S.S. Hoda,  Advocate-on-Record—Res­pondents Nos.  3(2)-3(7)
Ex parte—Respondents  No.   3(1).
Civil Appeal No. 29-D of 1969.
(From the Judgment and order dated 26th and 30th January, 1969 passed by the Dacca High Court in Petition No. 245 of 1966).
D.C. Bhattacharya, J.
This appeal by special leave is against an order of a Bench of the Dacca High Court discharging a rule, arising out of a Writ Petition under Article 98 of the Pakistan Constitution of 1952 for default.
2. The appellant is the Secretary of Khulna Sebasram which is an Association registered under the Society Registration Act and is said to be a religious institution. He filed a Petition being petition No. 245 of 1966 before the Dacca High Court on 15-6-66 under Article 98 of the then Constitution of Pakistan, challenging the validity of an order of requisition of certain lands belonging to the said Sebasram under section 3 of the East Bengal (Emergency) Re­quisition of Property Act as well as a notice for acquisition under section 5(3) of the said Act.
3. An application was filed before the said Bench on the/29th of January, 1968 (the 27th and 28th being Saturday and Sunday respec­tively for recalling the order of discharge and restoration of the Writ Petition to file, stating, inter alia, that the rule in question was posted, for hearing as item No. 8 in the Daily Cause List of the Court on the 25th January, 1968, that the items above the said rule having colla­psed, the said rule was taken up for hearing, that the petitioner's Advocate having come to learn that his case had been taken up for hear­ing rushed to the Court for representing his case but that when he reached the Court room he found that the learned Judges had already discharged the rule for default. No statement appears to have been made on behalf of the respondents disputing the correctness of the allegations made in the petitioner's application. The learned Judges, however, refused to accede to the prayer of the petitioner and made the following order on the 30th January, rejecting his application:
“Heard learned Advocate and per­used an application filed in Court on 29-1-68 for restoration of the Rule. There was none present in Court on behalf of the petitioner when this item was called for hearing. None prayed for passing over or for adjournment of the matter. We have observed for some time past that learned Advocates are not generally found on call and after cases are dis­missed for non-prosecution such applica­tions for restoration are filed. We have shown leniency in such matters in the past. But that seems to have been misunderstood. We are not satisfied with the rea­sons stated in the petition.
The application for restoration is accordingly rejected."
Special leave was granted by the Pakistan Supreme Court to appeal against the aforesaid order to consider: "Whether, having regard to all the facts and circumstances of the case, the learned Judges exercised their discretion in a judicial and proper manner.
4.  It is an accepted rule of judicial procedure in this country that the Court shall entertain and decide a civil action relating to the determination of an individual right only, if, the person who has initiated the action or his representative is present in Court to prosecute such action. The Court will not generally hear or decide an action in the absence of such a person. It is the duty of the party concerned to be present in Court to prosecute the action and the Court may in his absence very well presume that he is not willing to prosecute the matter and may in such a circumstance dismiss the same. On that view of the matter no valid objection can be taken to the order of discharge passed by the Court owing to the absence of the interested party or his Advocate at the time when the matter was called on for hearing. But there is also another well recognised rule of judicial procedure that the party in whose absence his section has been disposed of may get the order of disposal recalled and get his case restored to file on satisfying the Court that his absence was neither wilful nor negligent and that he was prevented by certain circumstances from being present in Court, for which he cannot be held to be responsible.
5. The provisions of Order IX of the Code of Civil Procedure have been enacted to give effect to the aforesaid rules of the judicial procedure. A proceeding for judicial review of certain administrative acts or legislative measures interfering with a civil right of a person, as is initiated on a Writ Petition, is undoubtedly a civil proceeding of original nature and the broad principles of judicial procedure underlying the provisions of the Code as contained in the various Orders in the Schedule to it may be invoked, so far as they are applicable, in an appropriate case. Moreover, the High Court exercising constitutional jurisdiction has also an inherent power in this regard. Under the general principle of judicial procedure as well as under the provisions of the Civil Procedure Code as contained in Order IX of the Schedule it was the duty of the learned Judges of the High Court to examine the facts of the particular case in order to determine whether the absence of the petitioner or his Advocate was due to a cause which can be held by the Court to be sufficient for not visiting the petitioner with the dismissal of his action. It was asserted by the petition that his Advocate could not be present in Court when the case was called on for hearing because he was not aware of the collapse of an as many as seven (7) Items which were fixed for hearing above his case, and that his Advocate rushed to the Court room as soon as he was informed of the said fact. This stale of facts does not appear to have been controverted by any person. The learned Judges, however, appear to have rested their decision entirely on a different foundation. They have sought to maintain the order by way of enforcement of a kind of discipline among the lawyers in general without trying to ascertain the actual cause of the learned Advocate's failure to appear in the instant case. The learned Judges have observed that the learned Advocates manifested a kind of negligence in the past in prosecuting their cases and the leniency as shown in the past was not properly appreciated. It does not appear that the learned Advocate appearing for the petitioner was guilty of any such laches in the past so that it could be said that there was a likelihood that he behaved in a similar way in respect of the instant case. There might have been some cause for being irritated due to the conduct of some Advocates who were found to be not alive to their responsibilities but that cannot be regarded to be a good reason for penalising a party who or whose Advocate could not be found to be delinquent in the matter in which the impugned order has been passed. No attempt was made on behalf of the respondent either before the High Court or here to controvert the truth of the statements made by the appellant explaining the failure of the appellant's Advocate to appear before the High Court at the time when the matter was called on for hearing. The discretion appears to have been exercised by the learned Judges or an entirely extraneous consideration and as such it is manifest that the order was not lawfully passed.
6. Learned Attorney-General has not seriously disputed the contention of the learned Advocate appearing on behalf of the appellant but has submitted that the Court should take notice of the fact that a growing lack of the sense of responsibility has become a regrettable feature of the present day legal profession and some steps should be taken to arrest the gradual decline of the standard of this noble profession. We may only point out that it is true that no court can efficiently function except with the responsible co-operation of the Bar, but this is a matter which concerns the members of the Bar themselves more than anybody else. The Court is to give its decision on the merits of an individual case.
The result, therefore, is that this appeal is allowed. The order of the High Court rejecting the appellant's application for restoration of the Rule as well as the order discharging the Rule are set aside and the Petition No. 245 of 1966 is restored to file for hearing according to law. There shall, however, be no order as to costs in this appeal.