This was a revision under Section 115 C.P.C., a routine matter even then in 1968. It was one of my early cases in the High Court. It is memorable for me only because of insufferable judicial misbehavior, which I was made to suffer without any justification whatsoever. The scars of injury suffered by an advocate on account of judicial misbehavior in open Court are lasting and unforgettable. The all time great Justice G.P. Singh has given an account of judicial misbehavior suffered by him in 1956 in his first case in the High Court in an article “My Days in the High Court” published in 1996 MPLJ (Journal part) Page 24 almost forty years after the event.
Order IX of Civil Procedure Code, 1908 provides for appearance of parties and consequences of non-appearance. Rule 3 of Order IX provides that when plaintiff and defendant both are absent when the suit is called for hearing the Court may make an order dismissing it in default. When the dismissal is under this rule, an application for restoration can be filed under Rule 4 which also provides that the plaintiff may subject to law of limitation bring a fresh suit on the same cause of action. As against this, Rule 8 of Order IX provides that when the defendant appears and the plaintiff does not appear the Court shall make an order dismissing it in default. When the dismissal is under this rule, remedy of restoration is provided under Rule 9 with a further provision that no fresh suit on the same cause of action shall be permissible. When the restoration is refused under this rule, an appeal is provided against the order under Order XLIII Rule 1(c). No appeal is provided if the restoration applied for under Rule 4 is refused. This dichotomy between the dismissal in default when both parties are absent and such dismissal when the plaintiff is absent and the defendant is present is continued in C.P.C. even after amendments made in 1976 and 2002. It is thus clear from a bare reading of these provisions that when restoration applied under Order IX Rule 4 C.P.C. (dismissal in default being in absence of both parties) is refused, no appeal lies and a revision under Section 115 is the only remedy. The general impression prevailing amongst lawyers as also judges is that whenever restoration is refused the order is appealable under Order XLIII Rule 1(c) missing this distinction. There is a decision reported in AIR 1917 Patna 593 which very lucidly explains this distinction.
In my case the plaintiff suffered dismissal of suit under Order IX Rule 3 C.P.C. on account of absence of both parties. An application for restoration was moved which was rejected by the Civil Judge, Class-II, Manasa. I was engaged to take further necessary steps. On merits I had an unanswerable case. The dismissal in default was without jurisdiction having been made on a date fixed for orders which was not a date of hearing. I studied the aforesaid provisions very minutely and filed a civil revision petition under Section 115 C.P.C. It came up for motion hearing before Hon’ble Dixit C.J. at no. 1 or 2 in the cause list.
Dixit C.J. was a giant. He ruled High Court of Madhya Pradesh for ten years as Chief Justice from 1959 to 1969. He was a towering personality, with a keen intellect and excellent command over language but thoroughly impatient. Arguments before him in any case were usually in telegraphic language lasting over a few minutes. He was a ruthless administrator and was the most dreaded chief amongst the members of subordinate judiciary. No member of Bar could afford to incur his displeasure in the slightest measure. His obiter was more effective than ratio of any other decision of any court. I have great respect for his erudition and lucidity of expression. I often enjoy reading his classic judgments reported in Law Journals from 1953 to 1969 but the treatment which I received from him was cruel to the point of atrocity and is altogether unforgettable for me.
When the case was called I stood up and before I could utter a word he shouted “who filed this revision?”. He had read the case at home and was acting under the aforesaid widespread and fallacious impression that rejection of every restoration application is appealable. He thought that the order impugned in my revision was open to appeal before District Judge and consequently a revision under Section 115 was barred. He also thought that filing this revision petition was result of my ignorance of law and that the litigant had to suffer the consequences thereof. Without putting any question or giving any opportunity to me to explain the maintainability of revision he just threw away the file of my case in a corner of the dais and shouted again in a louder voice “this is a case where the client should file a suit for damages against the lawyer who filed this revision” and angrily asked the reader to put up the next case. I was altogether unprepared for this unceremonious and unwarranted judicial reaction in a genuine case and was about to faint and fall down in the courtroom. I somehow took my seat and waited up to the end of motion list. Thereafter I again stood up and passed on the book AIR 1917 Patna duly flag marked to the learned Chief Justice through reader and in a trembling voice murmured “Sir in a similar case revision has been held to be appropriate and the only remedy”. He threw away the book in the other corner of the dais and shouted “You would never come up in life”. This was my first and the last appearance before him. I could not gather courage even to enter his courtroom till his retirement in March 1969.
On that day I returned to the bar room with gloom which I have no words to describe. When I was virtually weeping on the shoulders of a friend for this agonizing injustice, a senior advocate entered the bar room and told his juniors that Pavecha spoiled the mood of the Chief in the beginning and therefore he also had to suffer a summary dismissal of a second appeal. I was destined to take the discredit for the other dismissals also ordered by chief that day.
However, at the end of the day I gathered courage and went to the reader Gafoor Babu who had probably been my student in law classes of Christian College, Indore and asked for a favour that whenever the Hon’ble Judge proceeds to dictate the order in my case he should place AIR 1917 Patna 593 along with the file before him. He promptly assured me to do so and expressed sympathy for me. As the luck would have it, on the last day after the Chief left for Jabalpur when I enquired about the fate of my case from Gafoor Babu, to my astonishment he said that my revision petition has been admitted. A slightest expression of regret by the Chief (conveyed even through reader) would have healed my injury instantly but for a junior like me it was an expectation higher than the moon.
After service of notice Shree W.Y. Pandey a well known senior lawyer of those days (now no more) appeared for the respondent at the stage of final hearing. I vividly recollect that the case was listed at no. 1 in the final hearing list. Both of us were waiting for the case. In veranda Shri Pandey who always treated me with great affection told “Pavecha, I thought you to be a studious boy, how did you file a revision against the order which was appealable to District Judge”? I smiled and replied that sir it is maintainable in law. At 02:30 sharp Justice M.A. Razzaque took his seat and this case was called for hearing and he put the same question about maintainability of the revision. He was a great gentleman, uniformly courteous and respectful to the Bar. I submitted that my revision was not only maintainable but was the only remedy in the circumstances of the case. He heard me with rapt attention and read all the aforesaid provisions with me. Then I cited the precedent AIR 1917 Patna Page 593. Thereafter there was no room for any doubt in legal position. On merits the case was unanswerable. He called upon Shree Pandey to reply who responded with a broad smile on his face without uttering any word. The order was dictated immediately allowing my revision and restoring the suit. All that ends well is very well, but the scars of unceremonious behavior in open Court coming from the Chief Justice are indelible.
Chief Justice Dixit is no more. However, the prophecy made by him for me in open Court was not acceptable to destiny. God has been extremely kind to me in all respects and has given me much more than what I ever aspired or deserved. However this experience has taught me a few valuable lessons. Judicial or professional eminence is no guarantee of infallibility and at times pearls of wisdom may come from most unexpected and insignificant corners. A reasonably patient hearing and uniform courtesy is the essence of judicial culture and a legitimate expectation of the bar. Last but not the least a lawyer should always be thick skinned and never sensitive to judicial utterances, something which I could not inculcate all these years.
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