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B.S. Gangadhariah Vs. Thimmamma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. No. 235 of 1948-49
Judge
Reported inAIR1951Kant7; AIR1951Mys7
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 9 - Order 47, Rule 1
AppellantB.S. Gangadhariah
RespondentThimmamma and ors.
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateS. Suryanarayana Rao, Adv. for Respondent No. 10
DispositionRevision dismissed
Excerpt:
.....provisions of act. - 30) are now no longer good law. 123 wherein it is clearly laid down 'default of appearance is not a 'sufficient reason' contemplated by rule 1 of order 47, civil p......the time was confirmed. in the next earliest case i.e. in 5 mys. c. c. r. 73 which is also a bench decision, the learned judges held that the wording of section 623, civil p. c. (analogous to order 47, rule 1, civil p. c.) was wide enough to cover an application for review of an ex parte order of dismissal. this decision was followed by the later decisions of this court reported in 7 mys. c. c. r. 93, 27 mys. c. c. r. 132, 30 mys. c. c. r. 30 and 5 mys. l. j. 265 all of which except the last mentioned one are the decisions of a divisional bench of this court. 5 mys, l. j. 265 is the decision of a single judge who went the length of holding that the default in appearance of a party fell within the meaning of 'sufficient reason' in order 47, rule l, civil p. c. the decision in 41.....
Judgment:
ORDER

1. The petitioner who is the plaintiff before the trial Court filed a suit in O. S. No. 124 of 45-46 against the respondents on the foot of a mortgage deed and the suit was dismissed for default of the plaintiff. He filed then Misc. Application No. 167 of 46-47 under Order 9 Rule 9. Civil P. C. to have the ex parte dismissal order set aside. That application too was dismissed once again for default of the plaintiff-petitioner. He thereupon filed an application in Misc. case No. 103 of 47-48 under Order 47, Rule 1, Civil P. C. before the trial Court to have the said ex parte order reviewed and the learned Munsiff held that it was not maintainable. This revision petition is filed against the said order.

2. The learned Judge who heard this petition felt that the point involved was fairly important and that there was divergence of opinion even is this Court and therefore referred this petition to a Bench.

3. Only two points arise for consideration is this petition. The first of them is whether an application under Order 47, Rule 1, Civil P. C. is maintainable against an order passed on an application filed for restoring the suit on file which had been dismissed for default. The other question is whether the expression 'sufficient reason' in Rule 1 of Order 47, Civil P. C. covers cases of default in appearance. It is not necessary for us to discuss at length the question of maintainability as it has been uniformly held by this Court that an application under Order 47, Rule 1, Civil P. C. in the circumstances referred to 1 above is maintainable. Even the decision reported in 41 Mys. C. C. R. 891 relied upon by the learned Munsiff does nowhere say that an application is not maintainable. Their Lordships is that decision confined their attention to the interpretation of the expression 'sufficient reason' in Rule 1 of Order 47, Civil P. C. which will be adverted to later.

4. It is, however, necessary to refer to the various decisions of this Court. The earliest decision touching the point is the one reported in 3 Mys. C. C. R. 98 where the order of the trial Court dismissing an application for review on the ground that an application under the then Section 103, Civil P C. should have been filed within the time was confirmed. In the next earliest case i.e. in 5 Mys. C. C. R. 73 which is also a Bench decision, the learned Judges held that the wording of Section 623, Civil P. C. (analogous to Order 47, Rule 1, Civil P. C.) was wide enough to cover an application for review of an ex parte order of dismissal. This decision was followed by the later decisions of this Court reported in 7 Mys. C. C. R. 93, 27 Mys. C. C. R. 132, 30 Mys. C. C. R. 30 and 5 Mys. L. J. 265 all of which except the last mentioned one are the decisions of a divisional Bench of this Court. 5 Mys, L. J. 265 is the decision of a single Judge who went the length of holding that the default in appearance of a party fell within the meaning of 'sufficient reason' in Order 47, Rule l, Civil P. C. The decision in 41 Mys. H. C. R. 391, which is also a Bench decision, on the other hand, took a contrary view and held that 'sufficient reason' in Order 47, Rule l, Civil P. C. means a reason sufficient on grounds at least analogous to those specified immediately previous to this expression in Rule 1 i.e., analogous to mistakes or errors apparent on the face of the record. From the trend of reasoning of their Lordships, it follows that absence of a party was not meant by implication to be a ground covered by the expression 'sufficient reason' in Rule l of Order 47, Civil P. C.

5. In the most recent decision of this Court which happens to be Full Bench decision Ruknul-Mulk Syed Abdul Wajid v. E. Viswanathan, C. P. No. 61 of 49-50: (A. I. R. (37) 1950 Mys. 55 F. B.), the same interpretation was given by their Lordships to the expression 'sufficient reason' in Rule l of Order 47, Civil P. C. following a Privy Council decision reported in Chhaju Ram v. Neki, A. I. R. (9) 1922 P. C. 112 : (3 Lah. 127). They further held that 'it is obvious that neither the absence of the counsel nor the refusal to take part in the arguments could be brought under the expression 'sufficient reason' as they cannot be said to be analogous to the grounds immediately preceding.'

6. Taking into consideration the reasoning given in 41 Mys. H. C. R. 391 as also the interpretation given to the expression 'sufficient reason' by their Lordships in the Full Bench case of this Court referred to above, we are of opinion that the earlier decisions referred to above (5 Mys. C. C. R. 73 . . . 30 Mys. C.C.R.30) are now no longer good law. We would not be stretching the Full Bench decision too far if we hold that the absence of the party as much as of the counsel which was the point for consideration in the Full Bench case, does not come within the purview of the expression 'sufficient reason' in Rule 1 of Order 47, Civil P. C. We are supported in our opinion by a decision reported in 52 M. L. J. 123 wherein it is clearly laid down 'default of appearance is not a 'sufficient reason' contemplated by Rule 1 of Order 47, Civil P.C., nor is it analogous to any such reason.'

This decision is again followed in a later decision 67 M. L. J. 601 where again it is held that a review may be granted only upon one of the grounds therein specified and the words 'any other sufficient reason' must be taken to mean a reason sufficient on grounds at least analogous to those specified immediately previously.

7. Before concluding it hag to be observed that the learned Munsiff who virtually dismissed the application under-revision on merits, has incorrectly concluded that the application is not maintainable. So far as maintainability of the application under Rule 1 of Order 47. Civil P. C. is concerned, there appears to be no departure in 41 Mys. H. C. R. 391 from the earlier decisions of this Court, The departure is only in respect of the ground on which the application had to be allowed.

8. In the view we have taken this petition falls and is accordingly dismissed. In the circumstances of the case, there will be no order as to costs.


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