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Komalchand Beniprasad Vs. Pooranchand Moolchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 274 of 1964
Judge
Reported inAIR1970MP199; 1969MPLJ937
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 9 - Order 41, Rules 11 and 32 - Order 43, Rule 1; Limitation Act, 1908 - Schedule - Article 163
AppellantKomalchand Beniprasad
RespondentPooranchand Moolchand
Appellant AdvocateS.L. Jain, Adv.
Respondent AdvocateJ.P. Dwivedi and ;V.S. Tiwari, Advs.
DispositionRevision allowed
Cases ReferredIn Uma Datt v. Mt. Zakia Bibi
Excerpt:
- - he further held that there was sufficient cause for the failure of the counsel to appear in miscellaneous judicial case no. 7. it is now well settled that if once an order of an original authority is taken up inappeal to the appellate authority it is the order of the appellate authority which is the operative order after the appeal is disposed of, whether the appeal reverses, modifies or confirms the order of the original authority by dismissing the appeal:.....for default of his appearance on 22-4-1959, presumably under rule 8 of order ix of the code of civil procedure. on the same date an application for restoration of the suit was made by him under rule 9 of order 9 ibid, which was registered as miscellaneous judicial case no. 3 of 1959. this application was also dismissed for default of the plaintiffs appearance on 3-9-1959.against the aforesaid order, dated 3-9-1959, the plaintiff non-applicant on 30-11-1959 filed an appeal (miscellaneous (first) appeal no. 161 of 1959) in the high court under rule 1(c) of order xliii of the code of civil procedure. this appeal was dismissed summarily by this court on 29-1-1960; and an appeal (letters patent appeal no. 13 of 1960) filed against the aforesaid summary dismissal was also dismissed.....
Judgment:

Naik, J.

1. The facts giving rise to this civil revision may shortly be stated as follows;

The non-applicant plaintiff Pooranchand filed a civil suit (civil suit No. 31-A of 1958) on 25-8-1958 in the Court of the III Additional District Judge Jabalpur, challenging the adoption of the applicant-defendant Komalchand as the son of one Halkoolal. The suit was dismissed for default of his appearance on 22-4-1959, presumably under Rule 8 of Order IX of the Code of Civil Procedure. On the same date an application for restoration of the suit was made by him under Rule 9 of Order 9 ibid, which was registered as Miscellaneous Judicial Case No. 3 of 1959. This application was also dismissed for default of the plaintiffs appearance on 3-9-1959.

Against the aforesaid order, dated 3-9-1959, the plaintiff non-applicant on 30-11-1959 filed an appeal (Miscellaneous (First) Appeal No. 161 of 1959) in the High Court under Rule 1(c) of Order XLIII of the Code of Civil Procedure. This appeal was dismissed summarily by this Court on 29-1-1960; and an appeal (Letters Patent Appeal No. 13 of 1960) filed against the aforesaid summary dismissal was also dismissed summarily by a Division Bench of this Court on 21-4-1960.

While rejecting the Letters Patent Appeal, the Division Bench observed as follows:

'The learned Single Judge dismissed the appeal summarily as there was no evidence whatsoever to establish that the appellant's absence on 3rd September 1959 was for sufficient cause. The learned Single Judge saw no reason to admit the appeal for giving an opportunity to the appellant to lead additional evidence for establishing that there was sufficient cause for his non-appearance on 3rd September 1959. There does not appear to us any ground on which this appeal can be admitted. It is rejected.'

On the day on which an appeal (Miscellaneous (First) Appeal No. 161 of 1959) was filed in the High Court, namely, on 30-11-1959, the plaintiff non-applicant had also moved the trial Court for restoration to file the application for restoration dismissed in default of his appearance on 3-9-1959. The application was entitled as one made under Section 151 read with Rule 9 of Order 9 of the Code of Civil Procedure. In a note appended to the application it was stated that in case the application was not maintainable as filed, it may be treated as an application for review of the order dated 3-9-1959. This application, which was registered as Miscellaneous Judicial Case No. 31 of 1960, also came to be dismissed for default on 21-12-1959, though the Court had noted in the order-sheet that it also appeared to be barred by time as the order challenged was passed on 3-9-1959 and the application was made on 30-11-1959,

On 26-12-1959 the plaintiff non-applicant filed an application for restoration to file of his application dated 30-11-1959 dismissed for default on 21-12-1959. This application was not separately registered; and on 1-1-1960 the trial Court restored to file the application dated 30-11-1959 (which had been filed under Section 151 read with Rule 9 of Order 9 of the Code of Civil Procedure for restoring to file the application for restoration dismissed in default of plaintiffs appearance on 3-9-1959).

On the plaintiff-non-applicant's application dated 30-11-1959 orders were passed by the learned Additional District Judge, on 17-10-1960. He held that, though it was conceded that the application was tenable under Section 151 of the Code of Civil Procedure, it was yet governed by Article 163 of the Lim. Act; ana that consequently as the application had been filed not within thirty days of the order dated 3-9-1959, it was barred by time. He further held that there was sufficient cause for the failure of the counsel to appear in Miscellaneous Judicial Case No. 31 of 1960 when it was called on for hearing on 3-9-1959.

It appears that during these proceedings the fact that an appeal and then a Letters Patent Appeal had been preferred against the order dated 3-9-1959 and dismissed on 29-1-1960 and 21-4-1960 respectively was brought to the notice of the Court by the defendant-applicant by his application dated 14-9-1960 wherein it was contended that the matter having been finally decided by the High Court was res judicata and completely debarred the plaintiff-non-applicant from agitating the controversy once again. A certified copy of the High Court's order in the Letters Patent Appeal was also filed. The plaintiff filed a reply to the aforesaid application on 21-9-1960; but it appears that no orders were passed on this objection of the defendant-applicant by the learned Judge,

Against the aforesaid order dated 17-10-1960, the plaintiff-non-applicant went up in revision (Civil Revision No. 39 of 1961) to the High Court. That revision application gave rise to a reference to a Division Bench by Tare, J. whether Rule 9 of Order 9 of the Code of Civil Procedure was applicable to applications made for restoration or applications dismissed for default filed under Rule 9 of Order 9 of the Code of Civil Procedure for restoration of the suits dismissed for default. A Division Bench of this Court answered the reference saying that the provisions of Rule 9 of Order 9 of the Code of Civil Procedure were not applicable to such applications (viz., to applications for restoration of applications dismissed in default made under Rule 9 of Order 9 for restorationof suits dismissed for default); but that such applications could be made under Section 151 of the Code of Civil Procedure. It also held that such applications made under Section 151 of the Code or Civil Procedure were not fettered by any rule of limitation.

In the light of the answers given by the Division Bench, Tare, J. disposed of the revision on 17-7-1961 holding, inter alia,--

(a) that as the application for restoration dated 30-11-1959 which was made under Section 151 of the Code of Civil Procedure was not fettered by any law of limitation, its dismissal as barred by limitation has to be set aside:

and

(b) That as the trial Court had already held that there was sufficient cause for the plaintiff-non-applicant's absence on 3-9-1959, the application for restoration of the suit dismissed for default filed on 22-4-1959 must be enquired into.

In the result, he remanded the case to the trial Court for proceeding with the enquiry relating to the application for restoration of the suit filed on 22-4-1959.

It may, however, be noted that neither the fact that appeals had been filed in the High Court against the dismissal of the application for restoration of the suit dated 3-9-1959 and that these appeals had been dismissed by it nor the objection raised by the defendant-applicant before the trial Court on 14-9-1960 was brought to the notice of the learned Judge dealing with the civil revision.

However, when the case was heard by the Additional District Judge on remand, it was contended that the application could not be enquired into on the ground that it was barred by res judicata in view of the Order of the High Court dated 21-4-1960 passed in Letters Patent Appeal No. 13 of 1960. This objection was overruled by the trial Court by its order dated 21-2-1964. It held that in view of the Order of the Division Bench in Civil Revn. No. 39 of 1961 reported in Pooranchand v. Komalchand, AIR 1962 Madh Pra 64 no appeal lay from an order dismissing in default an application for restoration of a suit dismissed for default and that consequently the order of the High Court in Letters Patent Appeal No. 13 of 1960 could be of no avail to the defendant-applicant, especially when there was an express order of the High Court in Civil Revision No, 39 of 1961 directing it to enquire into the application dated 22-4-1959 for restoration of the suit dismissed for default. Ultimately, on 31-3-1964, the trial Court allowed the application dated 22-4-1959 and restored the suit to file holding, inter alia, that there was sufficient cause for the plaintiff-non-applicant's non-appearance in court on 22-4-1959 on which date his suit had been dismissed for default of his appearance.

The defendant-applicant challenges the aforesaid order.

3. This civil revision first came up for Hearing before Dixit, C. J. who, vide his order dated 27-4-1965, directed that it be placed for hearing before a Division Bench.

3. The contention of the learned counsel for the defendant-applicant is that the order dated 3-9-1959 dismissing in default theplaintiff's application for setting aside the dismissal of the suit for default on 22-4-1959 had merged in the order of the High Court dated 21-4-1960 passed in Letters Patent Appeal No. 13 of 1960; and that consequently from and after 21-4-1960 the Courts had no jurisdiction to set aside the order of the trial Court dated 3-9-1959, which had ceased to exist in the eye of law.

4. In Kikabhai v. Safiabi, ILR (1940) Nag 496 - (AIR 1937 Nag 381.) a Subordinate Judge, First Class, had passed an ex parte decree against the defendants on 30-1-1933. The defendants made two applications: one on 19-4-1933 and another on 28-4-1933, for setting aside the ex parte decree under Rule 13 of Order 9 of the Code of Civil Procedure. At the same time they preferred an appeal to the Court of the Judicial Commissioner against the ex parte decree. The appeal was dismissed summarily on 6-11-1933 under Rule 11 of Order XLI of the Code of Civil Procedure. Thereafter, on 5-3-1934 the Subordinate Judge dismissed the defendants' applications dated 19-4-1933 and 28-4-1933 pending before him on the short ground that on the dismissal of the appeal by the Court of the Judicial Commissioner, the ex parte decree ceased to exist. On appeal to the High Court, one of the questions posed before the Division Bench was whether the dismissal of an appeal against the ex parte decree by the Court of the Judicial Commissioner under Rule 11 of Order XLI of the Code of Civil Procedure had the effect of vacating the ex parte decree of the original court; and it was held that it had that effect, because, even when an appeal is dismissed under Rule 11 of Order XLI of the Code of Civil Procedure, the original court's decree merges in the appellate Court's decree and ceases to exist.

The learned Judges followed Mathura Prasad v. Ram Charan Lal, ILR 37 All 208 (AIR 1915 All 2); Wasudeo v. Chinba, (1912) 8 Nag LR 51; Ayodhya Kuar v. Durga Prasad, AIR 1923 Pat 331 and Girdhari Lal v. Dy. Commr. Gonda, ILR 4 Luck 201 = (AIR 1929 Oudh 35(1)) and doubted the correctness of Sheolal v. Moharnmad Ismail, AIR 1933 Nag 117, holding inter alia that-

'The rule which is deducible from the various decisions referred to above is that when an appellate Court judicially considers the grounds impeaching the correctness of the decree under appeal and dismisses the appeal by an order which so far as that Court is concerned is conclusive, that dismissal of the appeal supersedes the subordinate Court's decree.'

Repelling the contention based on the difference in the language of Rule 11 and Rule 32 of Order XLI , the learned Judges said:

'It is true that the wording of Rule 11 and Rule 32 of Order XLI apparently lends countenance to the view taken in Bapu v. Vajir, (1897) ILR 21 Bom 548; Batuk Prasad Singh v. Ambica Prasad Singh, ILR 11 Pat 409 = (AIR 1932 Pat 238) and AIR 1933 Nag 117. The words 'may dismiss the appeal' occur in Rule 11, and Rule 32 says the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred'. It is however transparent that the legal implication of dismissing an appeal is the confirmation of the decree appealed from. In the cases cited above it is conceded that the legal effect of dismissal is confirmation of the lower Court's decree. The attribution of that legal effect to the order of dismissal passed under Rule 11 is inevitable in view of the incontestable right of the aggrieved party to prefer an appeal from it. The word 'dismissal' in Rule 11 and the word 'confirming' in Rule 32 mark different stages of the proceeding in appeal but in substance their meaning is identical. There can be no dismissal of an appeal without confirming the lower Court's decree any more or less than there can be confirmation of the lower Court's decree without dismissal of the appeal. One necessarily involves the other and consequently they, in point of law, cannot be differentiated.

The conclusion is, for the foregoing reasons, inevitable that the ex parte decree passed by the lower Court ceased to exist the moment the Court of the Judicial Commissioner dismissed the appeal under Rule 11 of Order XLI. The lower Court was consequently right in holding that it had no jurisdiction to deal with the application made for setting it aside.'

5. In view of the aforesaid decision, the contention of the learned counsel based on the decisions reported in (1897) ILK 21 Bom 548; AIR 1933 Nag 117 (supra) and ILR 11 Pat 409 = (AIR 1932 Pat 238) and Hussain Sab v. Vighneshwar, ILR (1953) Bom 309 = (AIR 1953 Bom 122) cannot help him because the first three cases have been expressly considered and not approved in Kikabhai's case, ILR (1940) Nag 496 = (AIR 1937 Nag 381) (supra) and the fourth, which is of a date subsequent to that decision, relies on cases referred to earlier which had not met with the approval of the Division Bench is Kikabhai's case, ILR (1940) Nag 496 = (AIR 1937 Nag 381) (supra).

6. The learned counsel also relied on the decision in Abdul Majid v. Jawahir Lal, ILR 36 All 350 = (AIR 1914 PC 66) but that was a case where an appeal had been dismissed for default and the Division Bench itself has pointed out in Kikabhai's case, ILR (1940) Nag 496 = (AIR 1937 Nag 381) (supra) that the rule does not apply to cases where the appellate Court did not deal with the merits of the case as in the case of simply dismissing the appeal for default.

7. It is now well settled that if once an order of an original authority is taken up inappeal to the appellate authority it is the order of the appellate authority which is the operative order after the appeal is disposed of, whether the appeal reverses, modifies or confirms the order of the original authority by dismissing the appeal: see Collector of Customs, Calcutta v. East India Commercial Co. Ltd. Calcutta, AIR 1963 SC 1124. And, in our opinion, there is no difference whether the appeal is dismissed after notice or without notice, provided always that the dismissal is on merits. Indeed, in Bhagubhai Dullabhabhai Bhandari v. The District Magistrate, Thana, 1956 SCR 533 = (AIR 1956 SC 585) where the Supreme Court had refused to grant special leave to appeal to a petitioner-accused, it was held that he could not re-agitate the matter under Article 32 of the Constitution for the reason that the petitioner's conviction stood 'confirmed' as a result of the refusal by the Supreme Court to grant him special leave to appeal from the judgment of the High Court.

8. In the' instant case, no doubt, there was no decree which was appealed against and which had been confirmed by the dismissal of the appeal under Rule 11 of Order XLI of the Code of Civil Procedure. But an order passed under Rule 9 of Order 9 of the Code of Civil Procedure was an appealable order under Rule 1(c) of Order XLIII of the Code of Civil Procedure which in turn was appealable under Clause 15 of the Letters Patent; and on a parity of reasoning, when the High Court in Letters Patent Appeal No, 13 of 1960 dismissed the appeal against the order of the original Court on merits, the order of the original Court dated 3-9-1959 got merged in the order of the High Court and ceased to exist. Thereafter, the original Court had no jurisdiction to set it aside and even if it erroneously set it aside, it will not have the effect of setting aside the dismissal of the suit unless and until the order of the High Court confirming it was set aside.

9. It is, however, argued that the appeal to the High Court under Rule 1(c) of Order XLIII of the Code of Civil Procedure was itself incompetent because the dismissal in default of an application for restoration of the suit filed under Rule 9 of Order 9 of the Code of Civil Procedure could not be construed to be an order under Rule 9 of Order 9 rejecting an application for an order to set aside the dismissal of the suit within the meaning of Rule 1(c) of Order XLIII of the Code of Civil Procedure.

10. In our opinion, the contention has no merit. When a suit is dismissed for default of plaintiffs appearance under Rule 8 of Order 9 of the Code of Civil Procedure an application for its restoration lies under Rule 9 of Order IX of the Code. The application could either be allowed or rejected and, in our opinion its dismissal in default was nothing more than its rejection which entitled the plaintiff-non-applicant to file an appeal against it under Rule 1(c) of OrderXLIII of the Code of Civil Procedure. Dismissal in default was only one of the modes of rejection of the application, and rejection of the application, for whatever reason, entitled the applicant to appeal under that order.

11. It is, no doubt, true that in certain cases the Court prescribes special procedure for setting aside order dismissing a suit or an application in default of a party's presence; but it is to be observed that it nowhere takes away the right of the aggrieved party to appeal against such order where such right of appeal exists under the law. The special procedure is in addition to the right of appeal and is usually a speedier and less expensive remedy for the aggrieved party.

12. Reliance is, however, placed on some observations contained in the decision of this Court reported in AIR 1962 Madh Pra 64 (supra) that such an appeal was incompetent. That decision was delivered on a reference. The question on which the reference had been made was:

'What is the period of limitation for an application for restoration of an application filed under Order 9, Rule 9 which had been dismissed for default?'

In Brijmohan v. Raghoba, 28 Nag LR 83 = (AIR 1932 Nag 101) the Court of the Judicial Commissioner had held that to such an application the provisions of rule 9 of Order 9 of the Code of Civil Procedure were not applicable and that such an application could be entertained under the inherent powers of the Court under Section 151 of the Code of Civil Procedure. This view was followed by Robde, J. in Premshankar v. Rampyarelal, ILK (1944) Nag 558 = (AIR 1944 Nag 317). These cases, however, had not decided the question of limitation for such applications. The Division Bench deciding the reference agreed with the view expressed in Brijrnohan's case, 28 Nag LR 83 = (AIR 1932 Nag 101) (supra) and answered the reference saying that the application, being under the inherent powers under Section 151 of the Code of Civil Procedure, was not governed by Article 183 (163?) or any other article of the Limitation Act, though the party invoking the jurisdiction of the Court under Section 151 of the Code must be diligent and not guilty of laches.

13. In the course of the order, the Division Bench, after approving the decision in Brijmohan's case, 28 Nag LR 83 = (AIR 1932 Nag 101) (supra) said:

'Order 9, Rule 9 cannot, therefore, be invoked for setting aside the dismissal in default of an application for restoration of a suit under that Rule. On the same principle an order dismissing in default an application for restoration of a suit under Order 9, Rule 9 is not open to appeal under Order 43 Rule 1(c). The dismissal of such an application for default is in the exercise of the inherent powers of the Court. That being so, the dismissal can be set aside by the exercise of the same inherent powers. It seems to us unnecessary to examine some decisions inwhich it has been held that an appeal lies under Order 43 Rule 1(c) from an order rejecting for default an application under Rule 9, (see Doma Choudhary v. Ram Naresh Lal, AIR 1959 Pat 121 and cases noted in Chituley's Civil Procedure Code, Volume II, under note (2) to Order 9 (General.)) These decisions and others making Order 9, Rule 9 applicable for setting aside an order rejecting for default an application for restoration of a suit under Order 9, 11, 9 C. P. C. overlook the position that when an appeal is preferred against an order rejecting for default an application under Rule 9 for the restoration of a suit the appeal is not against the order to set aside the dismissal or a suit within the meaning of Order 43 Rule 1 (c), that Section 141 deals with procedure alone and not with any substantive rights, and that the remedy under Order 9, Rule 9 Civil Procedure Code is not a matter of procedure but is a substantive right.'

One stray observation with second sentence regarding the non-tenability of an appeal under Rule 1(c) of Order XLIII against an order dismissing in default an application for restoration of the suit dismissed for default did not arise out of the reference, nor were they necessary for the decision of the reference. A close scrutiny of the order shows that what the learned Judges really meant to lay down was that Rule 9 of Order IX could not be invoked for setting aside the dismissal in default of an application for restoration of a suit dismissed in default and that on the same principle an order dismissing in default an application for restoration of the application for restoration' of a suit under Order 9, Rule 9 was not open to appeal under Rule 1(c) of Order XLII. We are respectfully of opinion that there has been an inadvertent omission of the words which we have underlined above (here in * *) in the second sentence of the judgment aforesaid. The further observations that 'the dismissal of such an application for default is in the exercise of the inherent powers of the court' also then become intelligible because, as the application for setting aside the dismissal in default of the application for restoration of the suit was itself under the inherent powers of the court, its dismissal for default would also be under the inherent powers of the court; but if the observations were referable to an application for restoration of a suit under Rule 9 of Order 9 of the Code of Civil Procedure, it is a little difficult to understand how and why its dismissal for default would be under the inherent powers of the court and not under Rule 9 of Order 9 of the 'Code itself.

It is also significant that the learned Judges have further observed that it was unnecessary TO examine the decisions in which it had been held that an appeal lies under Rule 1(c) of Order XLIII from an order rejecting for default an application under Rule 9 of Order 9 which was really the question on which they were addressing themselves. They also refer to Chitaley's Code of Civil Procedure.Volume II, note 2, to Order 9 (General) which deals with the question of the applicability of Order 9 to applications under Order 9 itself under this head the learned authors have examined the question whether an application for restoring an application which had been made under Rule 4, R, 9 or Rule 13 of Order 9 and dismissed in default lies under Order 9; whether such an application could be made under the inherent powers, if not under Order 9; and whether, when such an application is dismissed in default or otherwise, an appeal lies against such an order under Rule 1(c) of Order XLIII. The note does not deal with applications made under Rule 9 of Order 9 for setting aside the dismissal in default of a suit. The further observations of the learned Judges on this topic are all in consonance with the view we have expressed above.

14. We may also add that it had never been the view of this Court that an order dismissing in default an application for restoration of a suit filed under Rule 9 of Order 9j was not appealable. There is neither reason, nor authority for so holding, nor has any authority been cited at the bar which had held that such an order was not appealable. Indeed there are, on the other hand, authorities for the proposition that an appeal lies under Rule 1(c) or (d) of Order XLIII from an order rejecting for default an application under rule 9 or Rule 13 of Order 9 respectively: see Narasayya v. Thimmappa, AIR 1943 Mad 584; Madan Lal Agrawalla v. Tripura Modern Bank Ltd., AIR 1954 Assam 1 (FB) and AIR 1959 Pat 121 (FB). In the words of the Patna Full Bench,--

'It seems to be manifest on a plain reading of Clauses (c) and (d) that there is no ground for discriminating between rejection of an application on merits and its rejection for default. The order which gives rise to an appeal is one whereby an application of the kinds mentioned in the clauses is rejected. Even if the application is dismissed for default, it is an order of rejection and hence appealable under either of the two clauses which may be applicable.

There is no reason at all to give a restricted meaning to the word 'rejecting in the clauses by saying that it refers only to rejection on merits. If it is argued that there is no specific provision in the clauses regarding dismissal of an application for default, that argument can be countered by saying that there is no specific expression in them even relating to rejection on merits. In the definition of 'decree' in Section 2(2), it has been expressly provided that a decree 'shall not include (b) any order of dismissal for default'.

The reason for exclusion of an order of dismissal for default of a suit is not far to seek. It seems clear that such an order has not been given the force of a decree because the legislature did not intend to make the order subject to an appeal but intended the Court which passed the order to act under Order 9 or, where the circumstances did notbring the case under Rules 4 and 9 of that order, to act in appropriate cases in exercise of the Court's inherent power for the purpose of setting aside the dismissal'.

In Uma Datt v. Mt. Zakia Bibi, AIR 1936 All 737 a Division Bench of the Allahabad High Court has held that an appeal lies when an application under Rule 9 of Order 9 for restoration of a suit dismissed for default is itself dismissed for non-prosecution,

15. The learned Additional District Judge was, therefore, in error in holding that the order dated 3-9-1959 dismissing in default the plaintiff-non-applicant's application for setting aside the dismissal of the suit in default was not maintainable under Rule 1(c) of Order XLIII of the Code of Civil Procedure.

16. We are, therefore, of opinion that the application in revision must be allowed and the order of the learned Additional District Judge set aside as having been passed without jurisdiction.

17. The application for revision is allowed with costs. Counsel's fee Rs. 75 if certified.


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