1. An intersting question of law is raised in these two revision petitions.
2. It arises in the following manner: The plaintiff in O.S. 50/67 on the file of the Subordinate Judge's Court. Kurnool filed two petitions I.A. Nos. 227 and 228 of 19689 the former for amendment of the plaint and the latter to add some more parties as defendants to the suit. On 12-7-68 they were dismissed for default for the non-appearance of the plaintiff. Thereupon, he invoked the provisions of Order 9 Rule 9 C.P.C. to his aid and filed on 3-9-1968 I.A.Nos. 347 and 348 for setting aside the orders of dismissal for default in the earlier applications They however, met with the same fate. Once again the plaintiff filed I.A. Nos. 537 and 538 of 1968. one for adding parties and the other for amending the plaint. The Additional Subordinate Judge, Kurnool dismissed those two petitions holding that the third batch of petitions on the same subject matter would not arise and could not be entertained inview of the fact that I.A. Nos. 347 and 348 had bee rejected on merits. Aggrieved by this dismissal the plaintiff has brought the matter to this court in these two revision petitions.
3. In the first place Sri R.V.Subbo Rao, appearing for the petitioner contended that neither Section 11 of the Civil Procedure Code nor any principle of constructive res judicata could apply to these cases because none of the earlier petition filed on the first occasion had been decided on its merits. This is an obvious proposition and Sri Sadasiv Reddy Learned Counsel for the respondent did not dispute this. There is no bar res judicata to the entertainment of the latest set of applications.
4. But then, Sri Sadashiv Reddy, submitted that the petitioner chose to invoke the procedure remitted under Rule 9 of Order 9. C.P.C. by filling applications for setting aside the earlier orders of dismissal for default and he has no right to bring fresh applications in respect of the same reliefs. He reiled on the language of Order 9 Rule 9(1) which is in the following terms:-
'Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit and called on for hearing, the Court shall make on order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceedings with the suit,'
It is to be noted that this provisions applied only to suits, But the learned counsel refers to Section 141 C.P.C. which says:-
'The procedure provided in this code in regard to suits shall be followed, ass far as it can be made applicable, in all proceedings, in any court of civil jurisdiction.'
Basing his argument on this provision Sri Sadasiv Reddy urged that since applications for amendment and addition of parties are proceedings in a court of Civil Jurisdiction the bar contained in Order 9 Rule 9 should apply to them also. The applications in I.A. 227 and 228 for amendment and for addition of parties were earlier dismissed for default and. therefore, by virtue of the bar contained in the fist part of Rule 9 the petitioner was precluded from bringing fresh applicationsfor the same reliefs. Since the later part of the Rule permitted the petitioner to file and application for setting aside the dismissal the availed himself of the remedy and is now precluded from filling fresh applications for the original reliefs.
5. Though at the first glance this argument appear to be plausible, on a closure scrutiny it does not appear to be well-founded. The application of Order 9 Rule 9 CPC is expressly limited to suits. Unless by virtue of Section 141 its scope is extended to petitions like those for amendment and for addition of parties. the bar under Rule 9 cannot be applied to such proceedings, It is thus necessary to find out the exact scope of Section 141 CPC. The crucial words that are to be construed are: 'all proceedings of whatever nature they may be if they are in a civil court,. come within the purview of these words. He however, rightly concedes that execution proceedings are not 'proceedings in any court of Civil Jurisdiction' within the meaning of Section 141 C.P.C. That is well established and there is no dispuite about it, Execution proceedings are excluded format he scope of Section 141 presumably for the reason that Order 21 contains a self-contained procedure of all execution matters the very words 'proceedings in any court of Civil Jurisdiction.' would imply 'proceedings of original nature.' It is to be noted that proceeding of interlocutory nature are provided for separately in the Code, For instance applications for amendments are provided in Order 6 Rule 17 C.P.C. Similarly provisions is made for addition of new parties in O.1 Rule 10 C.P.C. and steps taken in that behalf are governed by those specific provisions. Section 141 is only included in the scheme of the Code. for the purpose of enabling the adoption of the procedure prescribed for conduct of suits. also to proceedings of original nature, for which there is no prescribed procedure. Such matters are independent proceedings and originate in themselves, while interlocutory applications arise in the course of original suits or proceedings which do not require elaborate procedure fixed for them.
6. The learned author Mulla in his well known commentary on the C.P.C. 14th Edition at page 537 expressed the same view in the following terms:
'The proceedings spoken of in this section refer to original matters in the nature of suits, such as proceedings in probate. guardianship and so forth and do not include execution and other proceedings which do not originate in themselves but spring out from a suit or from some other proceedings or which arise in connection therewith.'
Petition for probate, guardianship and similar petitions are initiated by filing original petitions and they go through particle the same procedure as prescribed for suits. Since they are not separately dealt with the Code Section 141 enable the procedure prescribed for suits to be adopted to such proceedings. Interlocutory applications which are not of original nature need not go through such elaborate procedure. Besides, they are specifically dealt with in different provisions of the Code. It is therefore, reasonable to come to the conclusion that only proceedings of original nature are taken into account under Section 141 C.P.C.
7. The same view was taken by Division Bench of the Calcutta High Court in Sarat Krishna Bose v, Bisweswar Mitra, ILR 54 Cal 405=(AIR 1927 Cal 534). The following passage at page 410 states their view.
'An elaborate research into the history of Section 141 and an exhaustive analyses of the case law bearing on it will be found in the recent judgment of page J. in Basaratulla Mean v. Reazuddin Mean. ILR 53 Cal 679 =(AIR 1926 Cal 773). Nowamidst the hopelessly conflicting mass of judicial decisions which have clustered round Section 141 and Section 647 which stood in its place before, the solid bed-rock on which it is safe to take one's stand is the decision of the Judicial Committee in Thakur Prasad v. Fakirulah. (1895) ILR 17 All 106 (PC). Their Lordship's decision makes it perfectly plain that the section does not apply to applications for execution but only to 'original' matters in the nature of suits such as proceedings in probates, guardianships and 'so forth'.
The expression 'so forth' must in my opinion be read as meaning proceedings ejusdem generis with the instance that precede it and include such proceedings as in divorce, in insolvency for succession certificate as the like and the expression 'original matters' in my opinion confirms that view as meaning matters originate in themselves and not those which spring up from a suit or from some other proceedings or arise in connection therewith'.
The Privy Council in (1895) ILR 17 All 106 (PC) held that S. 647 C.P.C. 1882 which corresponds to Section 141 of the Code. 1908 did not make Section 373 of the older Code applicable to execution proceedings. The Board observed as follows, while holding so:
'It is not suggested that Section 373 C.P.C. would by its own force apply to that it is applied by force of Section 647. But the whole of Chapter 19 of the Code consisting of 121 Sections is devoted to the procedure in execution and it would be surprising if the framers of the code had intended to apply another procedure, mostly unsuitable by saying in general terms that the procedure for suits should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in Probates. guardianship and so forth and do not exclude executions.' Section 647 of the Code of 1882 included only original matters like proceedings in proate guardianship and so forth.
8. A Division Bench of the Allahabad High Court in Ramggopal v. Shanti Lal. AIR 1942 All 85 followed the decision of the Calcutta High Court in ILR 54 Cal 504=(AIR 1927 Cal 534).The question before the allahabad High Court was whether proceedings under Section 144 C.P.C. were also proceedings contemplated by Section 141 C.P.C. Bajapi J,. delivering the judgment of the Court observed at page 88:
'It was then said on behalf of the opposite party that by reason of Section 141 C.P.C. 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, but it does not follow therefore that Such, 2 C.P.C. becomes applicable to readings under Section 154 by reason of the provisions of Section 141 C.P.C. In this connection we cannot do better than quote what was said by Mukeriji J., in ILR 54 Cal 405 at p. 410 =(AIR 1927 Cal 534 at p. 535).'
After extracting the passage from Mukerji J.'s judgment (which I have already set out) the learned Judge said:
'Section 141 C.P.C. therefore, does not help the opposite party' This court itself expressed a similar view in Ramanna v. Nagbhushanam, 1955 Andh WR 880=(AIR 1957 Andh Pra 898). The question there was whether when an application made to a Civil Court to make a complaint of an offence falling under Section 195(1) (b) or (c), Cr. P.C. is dismissed for default an appellation to set aside the dismissal under Order 9 Rule 9 C.P.C. is competent . Viswanatha Sastry J., held that:
'The absence of the application on the date fixed for hearing is no ground for dismissing the application for default and if an appellation is do dismissed. there is nothing like the rule of res judiciata or a provision similar to Order 9 Rule 9 C.P.C. to debar a fresh appellation.'
In the course of the Judgment the learned Judge observed:
'Section 141 C.P.C. applies only to original proceedings in the nature of suits, such as for example probate and guardianship proceedings. It has been held both by the Judicial Committee and by the High Courts that Section 141 C.P.C. does not authorities the restoration of an execution petition dismissed for default the remedy of the decree holder being to file a fresh petition. Therefore it cannot be contended that Section 141. Civil Procedure Code applies to all proceedings initiated in a Civil Court irrespective of their true character.'
All these decisions take one view and construe the scope of Section 141 C.P.C. as limited to proceedings of original nature.
9. Sri Sadashiv Reddy, however relied on a Full Bench decision of the Allahabad High Court in Maha Ram v. Harbans, AIR 1941 All 101 (FB), In this case the question arose whether Schedule 2 to the C.P.C. applies to proceedings under Section 272 of the Agra Tenancy Act (3 of 1926) which was pending in a Civil Court. The Full Bench held that the Civil Court had jurisdiction to refer an issue under Section 271 to arbitration. While so holding the Court observed that Section 141 C.P.C. applies to all proceedings in any Court of Civil Jurisdiction and is not restricted to original proceedings. There is also nothing is Schedule 2 C.P.C. to justify an inference that its provisions do not apply to proceedings in Civil Court under Section 271. Hence, Schedule 2 clearly applies to the aforesaid proceedings by virtue of Section 141 Civil Procedure Code. Consequently, the Civil Court has jurisdiction to refer an issue submitted to it under Section 271 to arbitration and its finding based upon the award in arbitration is therefore valid and the revenue Courts' decree based on that finding is perfectly legal. While doing so the Full Bench tried to explain away the decision of the privy Council in Thakur Prasad v. Fakirullah, (1895) ILR 17 All 107(PC) and distinguish the decision of the Calcutta High Court in ILR 54 Cal 405 = (AIR 1927 Cal 534). It is no doubt true that the aforesaid observations were made by the learned Judges in their judgment.
But, it should be noted that the actual circumstances of the case before the Allahabad High Court were not in consistent with the construction laid on Section 141 in the decisions relied on by me. In that case a suit under Sec. 44 of the Agra Tenancy Act was pending. The contention was that the Munsif had no jurisdiction to refer the issue submitted to him to arbitration and that therefore his finding, based upon Arbitrator's Award , was invalid and that the provisions of Schedule 2 C.P.C. which relate to arbitration in a suit are not applicable to proceedings in a civil Court where an issue had been referred by the revenue Court under Section 271 of the Agra Tenancy Act. Undoubtedly the suit as well as the arbitration proceedings are proceedings of original nature. I do not therefore, think that the circumstances of the case on which the conclusion was arrived at by the Full Bench in the aforesaid decision are inconsistent with the principle laid down by the aforesaid decisions on which I relied.
In any case, with respect I would like to follow the view expressed in ILR 54 Cal 405=(AIR 1927 Cal 534): AIR 1942 All 85 and that of this Court in 1955 Andh WR 880=(AIR 1957 Andh Pra 898) in preference to the observations made in AIR 1941 All 101 (FB) (supra). It is important to note that the Allahabad high Court itself in its later decision in AIR 1942 All 85 took a different view from the Full Bench. The Privy Council also laid down the proposition in general terms which was followed by the above three decisions.
10. The applications for amendment of pleading and for addition of parties. are only interlocutory matters and are not proceedings of original nature. I am therefore, of the view that such applications are not 'proceedings in Civil Court' within the meaning of Section 141 Civil Procedure Code.
11. In this view the bar contained in the first part of Rule 9 of Order 9 C.P.C. does not apply to the two petitions filed by the petitioner, though similar applications has been earlier therefore, are maintainable. The fact that the petitioner had earlier adopted the remedy of filling applications for setting aside the orders of dismissal for default would not affect the merits of the case.
12. The result is the lower court is wrong in dismissing I.A. 537 and 538 without going into their merits. I , therefore allow the two revision petitions and direct the lower Court to restore the two applications to file and dispose them of on their merits. In the circumstances of the case I make on order as to costs.
13. Revision petitions allowed.