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Om Prakash and ors. Vs. Sri Kunwar Pal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberC.M.W.P. No. 21130 of 2004
Judge
Reported in2006(3)AWC2550
ActsLimitation Act, 1963 - Articles 122, 123 and 137; Code of Civil Procedure (CPC) , 1908 - Order 4, Rule 1(1) - Order 5, Rule 5 - Order 9, Rules 8 and 9
AppellantOm Prakash and ors.
RespondentSri Kunwar Pal and anr.
Appellant AdvocateK.A. Ansari, Adv.
Respondent AdvocateD.R. Sharma, C.S.C.
DispositionPetition allowed
Cases ReferredS.D. Ladha and Company v. Second Additional District Judge
Excerpt:
.....on behalf of the petitioners that in view of the provisions of order ix, rule 8 of the code of civil procedure, if the suit has been dismissed under rule 8, rule 9 clearly provides that fresh suit is barred, if the suit has been dismissed for non-appearance of the plaintiff and the defendant is present. it has further been submitted that the application should have been treated within time as it has clearly been mentioned that from the date of knowledge, the application is being filed within 30 days. 6. with respect i find myself in full agreement with the law laid down as well as the observations made by the learned judges in mst noor nahar's case (supra). it is high time that suitable amendment in the relevant articles of the limitation act is made to bring an application of this..........is being deprived of his reliefs which should have been granted to the petitioners if the suit filed by the petitioners is being decided on merits after affording an opportunities to the parties. the petitioners are being non-suited only on a very hyper technical ground.18. in my opinion, the purpose of justice demands that the court should not take very hyper technical ground for non-suiting a party. being a welfare state, the court has to see the interest of both the parties and has to follow the principle of natural justice.19. in view of the aforesaid fact, and in the interest of justice, i am of the view that the order of the revisional court dated 29.4.2004 (annexure 6 to the writ petition) is liable to be quashed. the order dated 29.4.2004 (annexure-6 to the writ.....
Judgment:

Shishir Kumar, J.

1. By means of the present writ petition the petitioners have approached this Court for issuing a writ in the nature of certiorari quashing the order dated 29.4.2004 (Annexure-6 to the writ petition).

2. The facts arising out of the present writ petition are that the petitioners' father purchased house property from one Sri Khacheru Mal and Lalji, both sons of Sri Gopal through a registered sale deed and since then they are enjoying their possession over the aforesaid house property continuously as owners of the said house. At the time of purchase of the house there was only one kachcha kotha constructed and later on the father of the petitioners got constructed two rooms and a verandah after demolishing the kachcha kolha, leaving some land vacant as an open area. When the defendant-respondent No. 1 without having any right threatened to raise illegal construction over the vacant land of the petitioners with the help of police administration, the petitioners' father had filed a Suit No. 377 of 1992 Sri Voda Ram v. Kunwar Pal, in the Court of Munsif Hawaii, Aligarh, seeking perpetual injunction with the following reliefs:

Reliefs:

(a) That by passing a decree of mandatory injunction in favour of plaintiff and against the defendant, the defendant be directed to restraining his construction by the suit within the time as fixed by this Hon'ble Court on his failure the same be done through Court or agency.

(b) Cost of the suit be awarded to the plaintiff and against the defendant.

(c) Any other relief which the Court may deem fit under the circumstance of the case be also given to plaintiff and against the defendant.

3. The suit was pending and a date was fixed for hearing on 5.5.1998. As the counsel who was appearing on behalf of the petitioners has assured that he will inform the petitioners regarding the date but as he could not inform, therefore, on 5.5.1998, the petitioners could not appear before the Court and the civil court has passed the following orders:

4. The applicant No. 1 was not aware regarding the said order as the counsel, who was appearing on behalf of the petitioners has not informed the said date. It was only on 18.10.1998 when the applicant No. 1 came to the village and it was informed by the defendant that the suit has already been dismissed. Then the petitioner engaged one Sri Sanjeev Kumar Sharma, Advocate, to make an enquiry and search out the date and time of the dismissal of the suit, then with a great difficulty, he enquired into the matter from the office and then it came to the knowledge of the petitioners that the suit has already been dismissed for default of the plaintiff on 5.5.1998. The date of knowledge is 28.10.1998. Immediately an application was prepared and filed before the Court for recalling, the order dated 5.5.1998. It has also been mentioned that the application may be treated within time as the same is being filed immediately after knowledge of the petitioners.

5. The trial court after considering the fact and after hearing both the parties was pleased to allow the application vide its judgment and order dated 9.8.2002 and the order dated 5.5.1998 has been recalled. Aggrieved by the aforesaid order, a revision was filed by the respondent No. 1 and the revisional court vide its order dated 29.4.2004 was pleased to allow the revision and set aside the order passed by the trial court restoring the suit for decision on merits. The petitioner aggrieved by the order dated 29.4.2004 has approached this Court.

6. The notices were issued and as the counter and rejoinder-affidavits have already been exchanged with the consent of the parties, the writ petition is being disposed of finally.

7. It has been argued on behalf of the petitioners that in view of the provisions of Order IX, Rule 8 of the Code of Civil Procedure, if the suit has been dismissed under Rule 8, Rule 9 clearly provides that fresh suit is barred, if the suit has been dismissed for non-appearance of the plaintiff and the defendant is present. The effect of the order passed by the revisional authority is that the petitioner cannot file a fresh suit for same cause of action, which still survives and for which the suit was filed. It has further been submitted that the application should have been treated within time as it has clearly been mentioned that from the date of knowledge, the application is being filed within 30 days. The trial court while considering the said issue has allowed the application and set aside the order dated 5.5.1998 in the interest of justice and has also imposed the costs of Rs. 500 and has directed that the suit be decided on merits after affording an opportunity to the parties. Rules 8 and 9 of Order IX of the Code of Civil Procedure is being reproduced below:

8. Procedure where defendant only appears.-Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

9. Decree against plaintiff by default bars fresh suit.-(1) 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 was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day. for proceeding with the suit.

8. The reliance has been placed upon a judgment of this Court in Shashi Kant Gupta v. Rajiv Dave 1994 ACJ 893. The reliance has been placed upon Paras 6, 7, 8 and 10 of the said judgment. The same is being reproduced below:

6. So far as the above submission is concerned, it may be noticed that as observed by this Court in its decision rendered by a Division Bench in the case of Lalta Prasad and Ors. v. Ram Karan 1912 ALJ 666, nothing in the Code of Civil Procedure can limit or otherwise affect such powers under which a Court can restore a case on grounds other than sufficient cause for non-appearance. The provisions contained in Order IX, Rule 9, Code of Civil Procedure makes it compulsory on a Court to set aside a dismissal order under Order IX, Rule 9 of the Code of Civil Procedure where the plaintiff satisfies the Court that there was sufficient cause for non-appearance. It was emphasized that the provisions contained in Order IX, Rule 9 of the Code of Civil Procedure cannot take away the court's power to restore the case for any other valid reason.

7. Moreover in its decision in the case of Godhni v. Shyam Lal and Ors. rendered by a Division Bench of this Court AIR 1921 All 264, it was held that illness of the daughters of the special attorney of the plaintiff on the date of hearing fell within the ambit of sufficient cause contemplated under Order IX, Rule 9, Code of Civil Procedure. In this decision it was clarified that where the question of sufficient cause has to be considered each case must be dealt with on its own facts and it is impossible to lay down any universal rule as to what constitutes sufficient cause.

8. There can be no manner of doubt that in case sufficient cause is made out in that event it is obligatory on the Court to set aside the order of dismissal in default however, the Court has ample jurisdiction and discretion to restore the case for any other valid reasons upon such terms as to costs or otherwise as it thinks fit.

10. The learned Counsel has further urged that the whole approach of the trial Judge stood vitiated as it has been observed by him in the impugned order that the matter of restoration is between the plaintiff and the Court and the plaintiff has to satisfy the Court about his absence. Suffice to say in this connection that the aforesaid observation occurring in the impugned order has to be , understood in the context of the provisions contained in Order IX Rule 9 of the Code of Civil Procedure and the implication arising thereunder as referred to hereinbefore. It cannot be lost sight of that in fact it is the satisfaction of the Court which matters. Of course, this satisfaction has to be reached and the judicial discretion exercised in a manner which is not arbitrary.

9. The another judgment relied upon by the counsel for the petitioners in C.P. Properties Ltd. v. Matadin Bhagwandas and Ors. 1993 (2) CRC 918. The reliance has been placed in Paras 6, 7 and 8 of the said judgment. The same is being reproduced below:

6. With respect I find myself in full agreement with the law laid down as well as the observations made by the learned Judges in Mst Noor Nahar's case (supra). It is high time that suitable amendment in the relevant articles of the Limitation Act is made to bring an application of this nature also within the purview of Article 122 of the Limitation Act.

7. There is no warrant for the contention on behalf of the opposite party that in view of the observations in Nathoo Prasad case (supra), the limitation for an application to restore an earlier application for restoration of suit will be governed by Article 122 as it stands. In fact, in Paragraphs 25 and 26 relevant in this context the said Bench itself held that no appeal lies from an order rejecting the application under Order IX for restoration of an earlier application under Order IX made for setting aside the dismissal of the suit, inasmuch as the latter application is not for an order to set aside the dismissal of suit. Article 122 of the Limitation Act relates to restoration of a suit or appeal or application for review of revision dismissed for default or want of prosecution. Consequently by no stretch of interpretation the said article in its present form can be held to apply to an application of the present nature, where restoration is ought, not of the suit, but of an application under Order IX. There being no other provision in the Limitation Act the residuary Article 137 will be applicable and the Limitation would be three years from the date when the right to apply accrues.

8. In this view of the matter, therefore, the learned Civil Judge was not correct in his approach in rejecting the application of the plaintiff revisionist as beyond limitation on analogy of Article 122 of the Limitation Act. The said application being within limitation under Article 137, deserves to be considered and disposed of on merit.

10. In view of the aforesaid fact, the petitioners submit that the order passed by the revisional authority is liable to be quashed as the revisional court has taken a very hyper technical view by holding that in view of Article 122 of the Limitation Act, 1963, as the limitation is prescribed 30 days from the date of dismissal, therefore, if there is a prayer in the application for setting aside the dismissal of the suit, the date of knowledge cannot be taken into consideration, unless and until there is a specific prayer and averment and a separate application under the Limitation Act taking into consideration Article 122 of the Limitation Act is not filed, the delay cannot be condoned and the application is not maintainable and is liable to be quashed. It has been submitted that the said view of the revisional court is against the principle of natural justice and if the revisional court judgment is upheld, the petitioners will be deprived of the decision of the suit on merits and in view of the provision of Code of Civil Procedure, Order IX, Rule 9, the petitioners cannot file fresh suit for the same cause of action, as such, the order passed by the revisional court is liable to be quashed.

11. On the other hand, the counsel for the defendant-respondent has submitted that as no application has been filed by the petitioner for condoning the delay as provided under Article 122 of the Limitation Act, the application itself was not maintainable and was liable to be dismissed. Taking into consideration the aforesaid fact, the revisional court has allowed the revision on the ground that as provided under Article 122 of the Limitation Act, the application has to be filed within 30 days from the date of dismissal. There is no mention that from the date of knowledge the limitation for 30 days will be counted, as such, a separate application stating the reason for non-appearance on the date fixed when the suit was dismissed for default of the plaintiff, has to be stated in a separate application and then the application can be said to be maintained otherwise only by saying or mentioning in the application, that the application is within time as the same is being filed within 30 days from the knowledge and if there is any delay the same will be condoned, cannot be a ground for condoning the delay and treating the application filed by the plaintiff-petitioner within time.

12. The reliance has been placed upon a judgment of Patna High Court in Radhanath Pathak and Anr. v. State Board of Religious Trusts, Patna : AIR1968Pat110 . The reliance has been placed upon Paras 2 and 3 of the said judgment. The same is being reproduced below:

2. The court below has relied on a single Judge decision of this Court in Sripati Saran Prasad Singh v. Indrajit Mahton AIR 1939 Pat 160. In that Order IX, Rule 4, of the Code of Civil Procedure, because the plaintiff, having been called upon to file process-fees and copies of plaint, had failed to comply with the Court's order, and the suits were dismissed for default. The learned single Judge of this Court held that the order of the Munsif was illegal, because he had no power to require a plaintiff to file process fees before fixing a date for the appearance of the defendant. No authority for this proposition of law was cited for taking that view ; nor any cogent reason was given for supporting the view taken by his Lordship. There is no provision in the Code of Civil Procedure with regard to the fixing of a date before calling upon the plaintiff to file process-fees and processes. In absence of any such provision, it could be open to the Court either to fix a date for the appearance of the defendant and then demand process-fees, etc., or to require the plaintiff to file the process-fees, etc., and thereafter fix a date for the appearance of the defendant for hearing. Rule 1 (1) of Order IV of the Code of Civil Procedure states that every suit shall be Instituted by presenting a plaint to the Court or such officer as It appoints in this behalf. Rule 5 of Order V lays down that the Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit and the summons shall contain a direction accordingly : Provided that, in every suit heard by a Court of Small Causes, the summons shall decide definitely as to whether the restoration application could be made under Section 151 of the Code of Civil Procedure only. The law, however, remains that, for whatever reason the suit may have been dismissed, an application for restoration of the suit has to be filed, under Article 122 of the Limitation Act, within thirty days from the date of the dismissal of the suit. Even if the suit has been dismissed for want of prosecution, as in the present case the law of limitation is the same ; and if the application is filed beyond thirty days of the date of the dismissal of the suit, the application has to be dismissed as being barred by time. In such a case, a Court cannot circumvent the law of limitation by exercising its inherent power under Section 151 of the Code of Civil Procedure. As pointed out in the case of Kameshwar Singh v. Ram, override the express provisions of law by a resort to inherent powers under Section 151. Code of Civil Procedure, 1908, nor can a Court ignore the specific provisions for dealing with a case by a resort to inherent jurisdiction either under Section 151 or Section 152 of the Code of Civil Procedure. In the present case, the suit was dismissed on 14th November, 1964. Even on the own case of the plaintiff, it got knowledge of the dismissal of the suit on the 26th December, 1964. The application for restoration having been filed on the 18th February, 1965, was much beyond thirty days from the date of dismissal or even from the date of knowledge of the dismissal of the suit. This application was obviously barred by limitation under Article 122 of the Limitation Act. The court below also has taken this view with respect to this matter. But, after having taken that view, the court, below attempted to circumvent the law of limitation by exercising its inherent jurisdiction. The court below was obviously wrong in Invoking its inherent Jurisdiction in a matter like the present one be for the final disposal of the suit. Under this provision, the Court has to determine, at the time of issuing the summons, whether the date to be specified in the summons will be for the settlement of issues only, or for the final disposal of the suit. In other words, the Court, at the time of issuing summons, could determine the date on which the issues may have to be settled or the suit may have to be finally disposed of. Therefore, it is evident that the process-fees, etc., must be put in before the date to be specified in the summons is to be fixed. If that be so, the order of the Court requiring a plaintiff to file process-fees, etc., cannot be said to be 'unjust or illegal and can never be said to be without jurisdiction. In this view of the matter, there does not appear to be any reason for holding that the order of the Court requiring the plaintiff to file process-fees and written processes before fixing a date for the appearance of the defendant was in any way illegal. The court below, in the instant case, did not commit any error in directing the plaintiff to file process-fees and written processes.

3. In the case in hand, in spite of several adjournments, the plaintiff did not comply with the order of the Court requiring it to file process-fees and written processes. In other words, the plaintiff did not take the necessary steps for the prosecution of the suit. The suit had. therefore, to be dismissed for default. It is true that no provision in the Code of Civil Procedure has been pointed out to us as to the power of the court to dismiss a suit in the circumstances as in the present case. The Court thus may be held to have inherent jurisdiction to dismiss a suit for want of prosecution by the plaintiff, and an application to restore the suit may be filed under Section 151 of the Code of Civil Procedure. It is, however, not necessary in the present case to True it is that if a Court, under its own mistake, had passed an order, it could set aside that order under Section 151 of the Code of Civil Procedure in appropriate cases. In the present case, however, there was no mistake committed by the Court in passing an order calling upon the plaintiff to file process-fees etc. before fixing a date ; and, therefore, there was no occasion for the Court to invoke its inherent jurisdiction, after the remedy of the plaintiff of filing an application for restoration of the suit had become barred by time. It is, therefore, apparent that the order of the court below setting aside the order of dismissal of the suit and restoring the suit is bad in law and the Court has committed an illegality in the exercise of its jurisdiction in passing such an order. For the reasons stated above, it is clear that the case of Sripatt Saran Prasad Singh AIR 1939 Pat 160, was not correctly decided.

13. The further reliance has been placed upon the judgment of this Court in S.D. Ladha and Company v. Second Additional District Judge, Kanpur and Ors. 1993 ACJ. The reliance has been placed upon Para 32 of the said judgment. The same is being reproduced below:

32. I, therefore, hold that an application for restoring a writ petition dismissed for default of appearance or for want of prosecution or for setting aside an order disposing of the writ petition ex parte can be entertained only if filed within 30 days of the order computing this period in accordance with the principles enshrined under Articles 122 and 123 of the Indian Limitation Act provided always that the delay in moving such an application can be explained making out sufficient cause for the same whereupon the application can be considered on merits.

14. In view of the aforesaid fact, the counsel for the respondents submits that the application filed by the petitioner was liable to be dismissed.

15. I have heard learned Counsel for the petitioners and learned Counsel for the respondents and have perused the record.

16. From the record, it is clear that the application was filed immediately when information was given by the defendant on 18.10.1998 and then immediately the petitioner contacted the counsel and after verification, an application was filed. The reason stated in the said application was that one Kunwar Devraj Singh, Advocate was engaged to conduct the case on behalf of the petitioners. The counsel for the petitioners assured to applicant No. 1 to intimate the date of the case but he did not inform and there was a marriage in the family, as such, the petitioners could not contact and no information was given by the counsel regarding the date. The various other reasons have also been given. After the prayer it has been mentioned that the application be treated within time from the date of knowledge. In para 10 of the application, it has been stated that in the interest of justice and in view of the fact stated In the application, the order dated 5.5.1998 be recalled and the application be treated within time.

17. The trial court considering all these aspects of the matter in the interest of justice was pleased to allow the application on 9.8.2002 and cost has been imposed to the tune of Rs. 500. It is also apparent from the order that the objection which was taken by the defendant-respondent has been taken into consideration and a finding to that effect has been recorded that in the interest of justice the application is liable to be allowed and it has been held that justice demands that the suit be decided after affording opportunities to the parties. But the revisional court on a very hyper technical ground that as the provision of Article 122 has not been complied with which provides filing an application within 30 days, it cannot be filed or the application cannot be treated within time if the same has been filed within 30 days from the date of knowledge. From the record, it Is clear that no separate application has been filed. An averment in the prayer and in the body of the application has been stated regarding condonation of delay but the revisional court has not considered this aspect of the matter and taking a very hyper technical ground, the revision has been allowed and effect of the order will be that the plaintiff-petitioner is being deprived of his reliefs which should have been granted to the petitioners if the suit filed by the petitioners is being decided on merits after affording an opportunities to the parties. The petitioners are being non-suited only on a very hyper technical ground.

18. In my opinion, the purpose of justice demands that the Court should not take very hyper technical ground for non-suiting a party. Being a welfare State, the Court has to see the interest of both the parties and has to follow the principle of natural justice.

19. In view of the aforesaid fact, and in the interest of justice, I am of the view that the order of the revisional court dated 29.4.2004 (Annexure 6 to the writ petition) is liable to be quashed. The order dated 29.4.2004 (Annexure-6 to the writ petition) is hereby quashed and the order passed by the trial court dated 9.8.2002 Is hereby restored and the trial court is directed to decide the suit if possible, within a period of six months after affording full opportunity to the plaintiff as well as defendant. It is made clear that the plaintiff will not seek any adjournment. The aforesaid direction be complied with by the petitioners after depositing a sum of Rs. 5,000 as costs, payable to the defendant within a period of one month.

20. The writ petition is allowed.

21. There shall be no order as to costs.


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