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Uma Datt Upadhya Vs. Mt. Zakia Bibi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All737
AppellantUma Datt Upadhya
RespondentMt. Zakia Bibi and anr.
Excerpt:
.....therefore, the defendant's contention can be upheld, we must be satisfied that the order of the learned munsif was under rule 2, and for that purpose the defendant asks us to invoke in aid the provisions of section 141, civil p. if there were no express provision in the code, we might have sought the aid of order 9, rule 2, but as it is, order 9, rule 9 prescribes an express procedure for an application of this nature, and we should not, therefore, invoke the aid of section 141 in order to bring the case within order 9, rule 2, and thus deprive an unsuccessful applicant of the substantive right of appeal given to him under order 43, rule 1. 5. certain cases have been cited before us at the bar in support of the contending views. the court cannot possibly make an ex parte order..........for the opposite party till 12th may 1934, on which date the process-fee was tendered. the learned munsif however refused to accept the process-fee and observed that there was no sufficient time left for the service of the notice in the ordinary course on the unserved opposite party. the result was that when the application for restoration came for hearing on 19th may 1934, the learned munsif passed the following order:notice could not be issued to upon (sic) opposite party 8 on account of the applicant's paying process-fee etc., as late as 12th may 1934. the application is dismissed for non-prosecution with costs to the contesting opposite parties.2. this order makes it clear that several of the opposite parties were served and were present on 19th may 1934, but one of them,.....
Judgment:
ORDER

1. This application in revision raises an interesting question of law. The defendant is the applicant before us, and the facts are that the plaintiff's suit was dismissed for default of appearance on 1st August 1933. On 28th August 1933, the plaintiff applied for restoration of the suit. This application for restoration came for hearing on 19th May 1934. It appears that the plaintiff had not deposited process-fee for the opposite party till 12th May 1934, on which date the process-fee was tendered. The learned Munsif however refused to accept the process-fee and observed that there was no sufficient time left for the service of the notice in the ordinary course on the unserved opposite party. The result was that when the application for restoration came for hearing on 19th May 1934, the learned Munsif passed the following order:

Notice could not be issued to upon (sic) opposite party 8 on account of the applicant's paying process-fee etc., as late as 12th May 1934. The application is dismissed for non-prosecution with costs to the contesting opposite parties.

2. This order makes it clear that several of the opposite parties were served and were present on 19th May 1934, but one of them, namely No. 8, could not be served, because the learned Munsif refused to take the process-fee which was tendered late, namely on 12th March 1934. It might be mentioned that the plaintiff-applicant, before the learned Munsif, was prepared to take the risk of late deposit of process-fee and prayed that if dasti summons were handed to him, he would serve opposite party 8 himself, but even that request was not granted. Against the order of the learned Munsif, dated 19th May 1934, the plaintiff appealed to the learned District Judge and there a preliminary objection was taken that no appeal lay to that Court. The learned District Judge overruled the preliminary objection and on the merits came to the conclusion that the order of the learned Munsif was unjustifiable and harsh, and he therefore set it aside, and allowing the appeal directed that:

The plaintiff's application for the re-opening of the case dismissed for default should be restored to its original number on the file of pending cases and disposed of according to law.

3. The defendant has come to this Court in revision and reiterates the contention that no appeal lay to the learned District Judge. We are of opinion that there is no force in this contention for the reasons to be given by us presently. Under Order 43, Rule 1, Clause (c), Civil P.C., an order under Rule 9, Order 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit is appealable, and whereas the contention of the plaintiff opposite party is that the order of the learned Munsif dated 19th May 1934, was an order under Rule 9, Order 9, the contention of the defendant-applicant is that it was an order under Rule 2, Order 9. Now Order 9, Rule 2 does not in terms apply to an application for restoration. It applies where a suit has been dismissed for failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service. Before, therefore, the defendant's contention can be upheld, we must be satisfied that the order of the learned Munsif was under Rule 2, and for that purpose the defendant asks us to invoke in aid the provisions of Section 141, Civil P.C. Now that section reads as follows:

The procedure provided in this Court in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

4. It must be remembered that the procedure provided in the Code in regard to suits should be followed only as far as it can be made applicable while a Court has seisin of miscellaneous proceedings. Where an express or special procedure is provided for a particular proceeding, Section 141 cannot be applied so as to defeat the operation of such provisions. Section 141 is an enabling section; in other words, where a party has instituted a proceeding in an original civil matter and the Court has to adjudicate upon such proceeding, the party or the, Court may look into the procedure prescribed for a suit in order to follow the same for the purpose of the proceeding in the absence of any express procedure prescribed by the Code for the proceeding itself, but Section 141 should not be so worked as to impose a disability upon any party. Order 9, Rule 2, as we said before, is not in terms applicable to an application for restoration where the plaintiff's suit has been dismissed for default; if there were no express provision in the Code, we might have sought the aid of Order 9, Rule 2, but as it is, Order 9, Rule 9 prescribes an express procedure for an application of this nature, and we should not, therefore, invoke the aid of Section 141 in order to bring the case within Order 9, Rule 2, and thus deprive an unsuccessful applicant of the substantive right of appeal given to him under Order 43, Rule 1.

5. Certain cases have been cited before us at the bar in support of the contending views. Some of them are obviously inapplicable because they deal with cases where a plaintiff's suit has been dismissed in default, and an application to restore it has also been dismissed in default then a second application has been made in, order to restore the application for restoration and there one might very well argue that as Order 9, Rule 9, does not in terms apply, in order to help the unsuccessful party, the provisions of Order 9, Rule 9, might, read with Section 141, be made applicable, and we are of the opinion that those cases have no bearing on the facts of the present case. The contention that was most strenuously advanced before us by learned Counsel for the applicants was that an order can be said to be one under Order 9, Rule 9, only when an application has been dismissed on the merits. We can find no warrant for confining the operation of Rule 9 to such a case. There are no such qualifying words in the rule itself. As pointed out by Chatterji, J. who was dealing with a case under Order 9, Rule 13, in Mufti Reazuddin v. Maheshanand 1929 Pat 529: 'There is no reason to take such a narrow view of the clause arid to read into it words which are nonexistent.' The provisions of Order 9, Rule 13, are very similar to the provisions of Order 9, Rule 9, and the same words 'if he satisfies the Court' occur in both rules. The case nearest in point is the case in Hirasa v. Sheokunwar (1923) 72 IC 547 where Mr. Hallifax, the Additional Judicial Commissioner, in somewhat similar circumstances held that no appeal lay against such an order. He observes:

If Section 141, Civil P.C., does not apply to the proceedings on the application for restoration, then it is clear that there can be no appeal against the order dismissing it. If however that section does apply, it is equally clear that the dismissal of the application was a dismissal under Rule 2 and not under Rule 9, Order 9, Civil P.C.

6. With great respect we say that we have some difficulty in following the reasoning of the learned Judge and for the reasons given by us we beg to disagree with him. It was also contended before us that the order of the learned Munsif could not possibly be an order under Rule 9, and in this connexion reliance was placed on Sub-clause 2, Rule 9. That sub-clause says, 'No order shall be made under this rule unless notice of the application has been served on the opposite party.' In our view this sub-clause, if anything, is against the defendant-applicant. It says that it is necessary that the applicant should take steps to serve notice of the application on the opposite party and if he does not take such steps then the Court cannot make an order setting aside the dismissal of the suit which means that the Court has no option but to dismiss the application. The Court cannot possibly make an ex parte order allowing the application and all that it can, therefore, do is to reject the application and then Order 43, Rule 1 Clause (c) would come into play and the unsuccessful party will have the right of appeal. There is yet another way in which this case might be approached. Before Order 9, Rule 2, with the aid of Section 141 can be made applicable to the circumstances of the present case, it must be clear that there was a failure of the applicant to pay the court-fee or postal charges, and in consequence of such failure the opposite party was not served and the Court had to dismiss the application. In the present case, as we stated earlier, the plaintiff was prepared to file the process-fee and it was the learned Munsif himself who would not take it, because according to his view, the process-fee was being deposited late. Order 9, Rule 2, therefore does not strictly apply, because there was no actual failure of the plaintiff, but there was a refusal by the Court to accept the process-fee.

7. This being our view on the point of the question of law raised by the applicant, we now proceed to consider the argument which has been advanced before us by the defendant-applicant on the merits of the revision itself. It is said that the learned Munsif had acted rightly in the matter and the learned District Judge had acted illegally or with material irregularity in the exercise of his jurisdiction in allowing the appeal before him. It is conceded that if an appeal lay to the learned District Judge there has been no usurpation of jurisdiction nor failure to exercise jurisdiction, but the act of the learned District Judge is tainted with illegality or material irregularity. We can find no such illegality or material irregularity in the action of the learned District Judge. As a matter of fact the action of the learned Munsif under all the circumstances of the case was to say the least of it, very strict, and the plaintiff undoubtedly suffered a grievance which has been rightly redressed by the learned District Judge. For the reasons given above, we dismiss the application with costs.


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