1. The question which has been referred to the Division Bench for answer is this: Whether the provisions of Order 22 read with Section 141 Civil P. C. would apply to proceeding initiated under Order 9, for restoration of a suit dismissed in default?
2. The referring order gives the following facts: Mst. Sikandar Jahan Begum filed Civil Suit No. 9-A of 1964 in the Court of First Additional District Judge, Bhopal, in forma pauperis. She remained absent on 3-11-1966 and her counsel pleaded no instructions. The suit, therefore, came to be dismissed in default of appearance of the plaintiff. An application was later filed for restoration of the suit which came to be registered as Miscellaneous Judicial Case No. 29 of 1966.
Notices were issued to the defendants to show cause. The report of the Process Server, given sometime in Sept., 1967 was that the defendant No. 1 had refused to accept the notice. To this, the other defendants raised an objection that the defendant No. 1 had already died and the proceedings had abated for reason of non-joinder of his legal representatives within time. Before steps could be taken to implead the legal representatives of the deceased defendant No. 1 and before the Court could give decision on the question whether or not the proceedings had abated, Sikandar Jehan Begum died.
An application came to be presented to bring on record her legal representatives. There is a dispute as regards the date on which this application was made. According to the legal representatives, the application was made on 31-7-1968. According to the defendants, it was mads on 8-11-1968. The defendants said that the proceedings had abated since the application was moved more than 90 days after the death of Sikandar Jehan Begum. They also said the application was made by some unauthorised person and could not be treated as one for the benefit of the legal representatives.
The Court below has overruled the objections. The legal representatives have been brought on record not only in the miscellaneous proceedings for restoration but also in the main suit which already stood dismissed in default.
3. The important question that arose for consideration was whether the provisions of Order 22 read with Section 141 Civil P. C. in terms applied to restoration proceedings initiated under Order 9 and registered as a separate miscellaneous case. A similar question had arisen for consideration before C.P. Sen J. in Abdul Rashid v. Qazi Rasoolkhan Civil Revn. No. 658 of 1975, D/- 31-3-1977 (Madh Pra) and he was of the opinion that such a miscellaneous proceeding would be governed by Order 22 read with Section 141 Civil P. C. This is what Sen J., said:
'The only question is whether there can be abatement of the proceedings under Order 9 of the Code. According to the applicants, Order 22 Rule 4 in terms applies to suits and the provisions cannot be extended to miscellaneous proceedings. Since the proceedings for restoration of suit was not a suit, the same could not abate. In support, the applicants have pointed out that Order 22 has no application to execution proceedings and also to revision applications. It is not possible to accept the contention raised by the applicants. The learned trial Judge has rightly pointed out that by virtue of Section 141 of the Code, the provisions of Order 22 can be made applicable whenever possible to proceedings other than a suit or an appeal. Section 141 provides 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. Therefore, there is no reason why the provisions, of Order 22 cannot be extended to miscellaneous proceedings, such as proceedings under Order 9. So far as execution applications are concerned, the same are excluded from operation of Order 22 in view of specific provision contained in Order 22 Rule 12. Regarding revisions, though there is conflict of decisions as to the applicability of Order 22 but the consensus of judicial opinion including the view of this Court is that Order 22 has no application to revision applications. Whatever thatbe, non-application of Order 22 to revision applications cannot be a ground for holding that Order 22 will have no application to miscellaneous proceedings. Miscellaneous proceedings such as those under Order 9 are nothing but offshoots of suits which have been disposed of due to non-appearance of parties. The trial Court was, therefore, justified in holding that the application for restoration has abated due to non-bringing of legal representatives within 90 days of the death of Smt, Maqbulanbi and no sufficient cause has been shown for condoning the delay.'
4. The reference of the question to a larger Bench was considered necessary for reasons stated in paras 6 and 7 of the Referring Order which may be reproduced.
'Order 22 applies essentially to suits and appeals. The miscellaneous proceedings for restoration of the suit dismissed in default, is not a continuation of a suit, since the suit is no longer pending after the order of dismissal is passed. Order 22 is not a mere matter of procedure which can be invoked with the aid of Section 141, C.P. C. to all civil proceedings of whatever nature pending in a Court of civil jurisdiction. Order 22 affects substantive rights of a party prosecuting or defending a civil action. That being so, Order 22 must apply to only suits and appeals, to which the provision is made expressly applicable.
Though there is a distinction between a revision and an original proceeding under Order 9 but in the applicability of Order 22, the distinction has little meaning, To various original proceedings, say under the Land Acquisition Act, the Motor Vehicles Act and the Workmen's Compensation Act, the provisions of Order 22 were held not applicable. That being so having regard to the importance of the question, requiring an authoritative pronouncement; and in order to avoid conflicting views, I would refer this case to Hon'ble the Chief Justice for constituting a Division Bench.
5. Shri Awasthy, learned counsel for the petitioners, argued that in view of the Full Bench decision of this Court in Nathu Prasad v. Singhai Kapur-chand 1976 MPLJ 306 the controversy was well-nigh settled that the procedure provided in the Code in regard to suits applied, insofar as it could be made applicable, to proceeding initiated under Order 9 in view of Section 141 of the Code, one of the questions that fell forconsideration by the Full Bench was whether an application under Order 9 Rule 9 C.P. C. dismissed in default could be restored for hearing by invoking the provisions of Order 9 read with Section 141 of the Code of Civil Procedure. The opinion of the Full Bench has been expressed in para 8 of the Judgment in the following words:
'To look for an appropriate remedy where an application under Order 9 Rule 9 Civil Procedure Code is dismissed for default, the correct approach would be to answer, under what law was the dismissal. There are decisions in which it has been held that such dismissal does not fall within the purview of an express provision of the Code of Civil Procedure, but, at the same time, when nobody appears to prosecute the application, it is either to be decided on merits or to be dismissed for default. That alone will prevent abuse of the process of the Court and that alone will be in the interest of justice. On that basis, it has been held in those cases that the dismissal of an application for default under Order 9 Rule 9 is under Section 151 of Code, which preserves inherent powers of the Court. And, since the dismissal itself is under inherent powers, such dismissal can also be set aside and the proceedings restored, in exercise of the inherent powers of the Court. In our opinion, Section 141, Civil P. C. supplies the correct answer. It enacts thus:-- 'The procedure provided in this 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.'
Now, an application under Order 9 Rule 9 Civil P. C. is a proceeding in a Court of Civil jurisdiction. We see no reason why the procedure provided in regard to suits cannot be made applicable to a proceeding under Order 9 Rule 9 There is no justification to read any such restrictiva words in Section 141. The section is in general terms and the expression 'as far as it can be made applicable' provides for the extent to which the section can be applied to a Civil Proceeding other than a suit. The expression 'all proceedings' is of a very wide connotation and to restrict it to a proceeding, which is original in nature and wholly independent of a suit will be doing violence to the language of the section. When a suit, which is dismissed for non-appearance of the plaintiff can be restored on satisfying the Court that the plaintiff wasprevented by some sufficient cause from appearing before the Court, there is no reason why, when an application under Order 9 Rule 9 is likewise dismissed for non-appearance of the applicant, the latter should be denied an opportunity to satisfy the Court that he was prevented by reason of sufficient cause from appearing before the Court, when his application was called on for hearing. The object and purpose of Section 141 is that for economy of words, it was unnecessary to repeat the whole of the procedure in providing for procedure for an application. Or any other proceeding original or ancillary. An application under Order 9. Rule 9 Civil P. C. is not an interlocutory application. It is different from an application made in a pending suit. By its nature, an application under Order 9 Rule 9 is an independent application and is registered as an independent Misc. Judicial Case.'
6. Applicability of the procedure pro-rided in the Code for suits with the aid of S, 141 to a proceeding under Order 9 ex debito justitiae, i. e., to prevent an injustice, cannot be doubted. The trouble arises when penal provisions, which in terms have not been made applicable to such a proceeding, though applicable to a suit, are sought to be invoked with the aid of Section 141. Whether that would be permissible? Section 141 of the Code itself says that the whole of the procedure in regard to suits may not be applicable to a proceeding in a Court of Civil jurisdiction. Only such procedure shall be followed 'as far as it can be made applicable'. The question then is whether the penal provisions of abatement contained in Order 22, in case an application for substitution is not filed within 90 days, should govern even an application for restoration filed under Order 9. The relevant Article of the Limitation Act is Article 120, which reads as under:
Art. 120: Under the Civil P. C. 1908, to have the leRul representatives of a deceasedplaintiff or appellant fir of a deceased defendant or respondent, made aparty.
The date of death of theplaintiff appellant, defendant or respondent as the case may be.
In a suit when the plaintiff or the defendant dies, an application to bring on record the legal representatives has to be made within 90 days, the limitation for the application is provided in Article 120 of the Limitation Act. The same Article governs the application for substitutionwhen an appellant or a respondent dies in a pending appeal. This Article of the Limitation Act cannot be extended in its operation by analogy or otherwise to an application for substitution when an applicant or non-applicant dies hi a pending proceeding for restoration under Order 9. We cannot read into the Article 'an applicant' for the plaintiff or 'a non-applicant' for the defendant. Section 141, Civil P. C. may permit the procedure for a suit to be followed in a proceeding initiar-ted under Order 9 but the provisions of the Limitation Act could not be amended by any process of reasoning so as to read 'applicant' for 'plaintiff' and 'non-applicant' for 'defendant'. And unless that could be done, the application for substitution in such a case would be governed by the residuary Article, there being no special provision.
7. Order 22 contains penal provisions which affect substantive rights of the plaintiff or the appellant, as the case may be, when an application for substitution is not filed within time. The penal provisions have to be construed strictly. Unless they expressly declare the provisions to be applicable to a proceeding other than a suit or appeal, those provisions cannot be applied by analogy to such a proceeding.
8. There are two weighty reasons given by Abdur Rahman, Ag. C. J. in the Mohd. Sadaat Ali Khan v. Administrator, Corporation of City of Lahore, AIR 1949 Lah 186 (FB) for holding that the provisions of Order 22, Rule 3. C. P. C. are not applicable to revisions. (Please see paras 9 to 13 of the Judgment). There is nothing to choose between a revision and a Miscellaneous Judicial case, which is not a suit or appeal, to make any distinction in the applicability of Article 120 of the Limitation Act. If the said Article does not apply to a revision, it does not apply to an application for restoration either. To the same effect are the Full Bench Authorities reported in Babulal v. Mannilal, AIR 1953 Raj 169 and Chandradeo Pandey v. Sukhdeo Rai, AIR 1972 All 504 (FB).
9. Naturally a proceeding on the death of a party cannot proceed and those to whom the right to sue survives have to be impleaded. But the limitation to make an application for substitution in a suit for which there is express provision, would not govern a proceeding which is neither a suit nor an appeal. That being so, Order 22 would not in termsapply to a proceeding initiated under Order 9 for restoration of a suit dismissed in default.
10. We answer the question accordingly.