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Kalookhan FazledIn Vs. Surji Vallabhdas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 440 of 1945
Judge
Reported inAIR1947Bom328; (1947)49BOMLR155
AppellantKalookhan Fazledin
RespondentSurji Vallabhdas
Excerpt:
.....to file an application dismissed for default, which application was made to restore to file a suit dismissed for default.;chander sahai v. durga prasad (1924) i.l.r. 46 all. 538 and sadaya padayachi v. chinnaswami naidu (1935) i.l.r. 58 mad. 814, followed.;rameshar v. haribhau [1937] a.i.r. oudh 344, dissented from.;d.b. manke v. b. walwekar [1923] a.r. bom. 386, referred to. - - but with the greatest respect to the learned judges, it seems to me that they have failed to draw a distinction between questions which are purely matters of procedure and questions of appeal which are matters of substantive right. ix, rule 9, of the civil procedure code, would apply to applications made under the same rule as well as to applications to set aside a dismissal of a suit; under section 104..........the order dismissing the application for restoring to file the application for restoring the suit dismissed for default. the learned district judge upheld this objection and held that no appeal lay. it is against that order that the present application has been filed in revision.2. there is some conflict of authorities on the question as to whether there can be an application for restoring to file an application which was dismissed for default and which was itself filed for restoring to file a suit which was also dismissed for default. this court has held in the case of d.b. manke v. b. walwekar a.i.r.[1923] bom. 386 that 'there was no rule in the code that enabled the court to restore an application made under o. ix, rule 9, which had been dismissed for want of prosecution.' but.....
Judgment:

Rajadhayaksha, J.

1. The suit out of which this civil revision application arises was filed by the plaintiff Nijamuddin as suit No. 123 of 1943. That suit was dismissed for default on June 13, 1944. Nijamuddin died on June 16, and on June 27 his nephews, the present applicants, filed an application, No. 69 of 1944, for restoring the suit to file. Evidence was taken during the hearing of that application and the application was fixed for final hearing on March 1, 1945. On that day the applicants remained absent, and the application was dismissed for default. Then on March 3, 1945, the applicants filed another application, No. 23 of 1945, for restoring the dismissed application to file. The learned trial Judge dismissed that application on April 7, 1945. Against that order an appeal was filed in the District Court and a preliminary objection was taken that no appeal lay against the order dismissing the application for restoring to file the application for restoring the suit dismissed for default. The learned District Judge upheld this objection and held that no appeal lay. It is against that order that the present application has been filed in revision.

2. There is some conflict of authorities on the question as to whether there can be an application for restoring to file an application which was dismissed for default and which was itself filed for restoring to file a suit which was also dismissed for default. This Court has held in the case of D.B. Manke v. B. Walwekar A.I.R.[1923] Bom. 386 that 'there was no rule in the Code that enabled the Court to restore an application made under O. IX, Rule 9, which had been dismissed for want of prosecution.' But there have been decisions of other High Courts which hold that such an application does lie. Those High Courts rely on the provisions of 0. IX, Rule 9, read with Section 141 of the Civil Procedure Code which lays down that 'the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction.' It is true that in the Bombay case mentioned above, there is no reference to Section 141. But even assuming that an application lies for restoring to file an application under O. IX, Rule 9, which has been dismissed for default, the question arises whether there is an appeal against the dismissal of the second application. It is true that O. XLIII, Rule 1(c), does provide that an appeal lies against an order under Rule 9 of O. IX rejecting an application for an order to set aside the dismissal of a suit. By reason of this, undoubtedly, an appeal would have lain against the dismissal of the application No. 69 of 1944. But the question arises whether there can be an appeal against the dismissal of the application No. 23 of 1945 which rejected the prayer for restoring to file application No. 69 of 1944. Mr. A.G. Desai for the applicants sought to read 0. XLIII, Rule 1(c), with Section 141 of the Civil Procedure Code and argued that the provisions of Section 141 which permit the procedure laid down in the Code in regard to a suit being followed in respect of all proceedings in a civil Court, could also enable an appeal being made under O. XLIII, Rule 1(c). In my opinion, this contention cannot be accepted. Section 141 of the Civil Procedure Code only lays down that the procedure in regard to a suit may be followed in respect of all proceedings in a civil Court. Having regard to this section it may be that application No. 23 of 1945 could be entertained to restore to file application No. 69 of 1944. But it is quite a different matter when the provisions of Section 141 of the Civil Procedure Code are pressed for giving a right of appeal which the Court does not allow. The only authority on this point which supports the applicants is the case of Rameshar v. Harihar. A.I.R[1937] . Oudb 344. At p. 347 the learned Judges observe:

If the aid of Section 141, Civil Procedure Code, can be invoked to bring within the scope of Order IX, rule 9, an application to restore to hearing a previous application for restoration which has been dismissed for default, it seems to us that that same section can be invoked to make appealable under Order XLIII, rule 1(c), the order which is passed upon such an application.

But with the greatest respect to the learned Judges, it seems to me that they have failed to draw a distinction between questions which are purely matters of procedure and questions of appeal which are matters of substantive right. In Chandar Sahai v. Durga Prasad I.L.R.(1924) All. 538 Mr. Justice Sulaiman held that

an appeal lies from an order refusing to set aside an ex-parte decree, but, under the Code of Civil Procedure no appeal is provided for from an order dismissing an application which is for restoration of an application for setting aside an ex-parte decree. Nor can a right of appeal be claimed by virtue of Section 141 of the Code of Civil Procedure, when Order XLIII of the Code makes no provision for such an appeal.

This decision was followed in a division bench ruling of the Madras High Court in Sadaya Padayachi v. Chinnaswami Naidu I.L.R.(1935) Mad. 814 where also argument similar to the one addressed to me was pressed. It was urged that an appeal would lie under O. XLIII, Rule 1(c), by reason of the application of Section 141 of the Civil Procedure Code. The learned Judges point out that the provisions of Section 141 of the Civil Procedure Code had been invoked as sufficient warrant for the view that the provisions of O. IX, Rule 9, of the Civil Procedure Code, would apply to applications made under the same rule as well as to applications to set aside a dismissal of a suit; and then they go on to observe (p. 815) :

That however is not to say that the same section will avail to confer a right of appeal. It deals only with procedure, whereas a right of appeal is a substantive right. Under Section 104 of the Code such a right is enjoyed only in respect of orders specified in that section or in Order XLIII, rule 1.

They therefore held that no appeal lay in circumstances similar to the present ones. With respect I agree with the view taken by the Allahabad and the Madras High Courts. That being so, the learned District Judge was right in holding that no appeal lay.

3. It was further urged by the learned advocate that even if no appeal lay, the present application might be treated as an application in revision against the order of the trial Court dismissing Application No. 23 of 1945. Even if I were to waive the bar of limitation and excuse the delay in filing the application, it is quite clear that no question of jurisdiction is involved in the decision on merits of the application No. 23 of 1945. Therefore even under Section 115 of the Civil Procedure Code an application in revision would be incompetent.

4. I must therefore discharge the rule with costs.


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