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Daya Chand Vs. Ram Phal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 105 of 1971
Judge
Reported inAIR1972P& H45
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 9
AppellantDaya Chand
RespondentRam Phal and anr.
Cases Referred and Rameshwar Dutt v. Harihar
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........under order 9, rule 9, code of civil procedure, for restoration. on 16th may, 1968, the trial judge directed the plaintiff to deposit process fee for summoning the defendants. this application was dismissed on 6th june, 1968, for non-prosecution. on 7th june, 1968, the plaintiff filed another application for restoration of the first application dated 18th april, 1968. the second application was dismissed in default on 10th june, 1968. then plaintiff filed an appeal against the order dated 10th june, 1968, before the learned district judge, rohtak. on 15th may, 1969, the learned judge set aside the order dated 10th june, 1968 and remanded the case to trial court for deicing the second application dated 7th june, 1968, on merits. on 7th may, 1970, the second application was so.....
Judgment:
ORDER

1. The facts giving rose to this revision petition are these. On 8th September, 1966, Badlu and his brother Mange sold the property in dispute to Daya Chand for Rs.5,500/-. This led to a suit for pre-emption, which was filed by Ram Phal, minor son of Badlu, through his mother Shrimati Natho, on 31st August, 1967. The suit was dismissed in default on 17th April, 1968. On 18th Aril, 1968, the plaintiff filed an application under Order 9, Rule 9, Code of Civil Procedure, for restoration. On 16th May, 1968, the trial Judge directed the plaintiff to deposit process fee for summoning the defendants. This application was dismissed on 6th June, 1968, for non-prosecution. On 7th June, 1968, the plaintiff filed another application for restoration of the first application dated 18th April, 1968. The second application was dismissed in default on 10th June, 1968. Then plaintiff filed an appeal against the order dated 10th June, 1968, before the learned District Judge, Rohtak. On 15th May, 1969, the learned Judge set aside the order dated 10th June, 1968 and remanded the case to trial Court for deicing the second application dated 7th June, 1968, on merits. On 7th May, 1970, the second application was so decided and dismissed. The trial Judge found that there was gross negligence on the part of the plaintiff's counsel in not depositing the process fee given to him by his client.

2. Thereafter, the plaintiff filed an appeal against the order dated 7th May, 1970. On 2nd January, 1971, the learned Senior Subordinate Judge, Rohtak, who was invested with enhanced appellate powers, allowed the same, reversed the finding of the trial Court that the plaintiff had no sufficient cause for not filing the process fee and remanded the case to the trial Judge for deciding the application dated 18th April, 1968, on merits. Against this decision, Daya Chand, defendant, has filed the present revision petition.

3. The sole question that has been argued before me is whether the order dated 7th May, 1970, by which the plaintiff's second application dated 7th June, 1968, had been dismissed by the trial Judge, was appealable or not. If latter be the case, then the impugned order would be without jurisdiction. On this point, there is admittedly divergence of judicial opinion. Lahore, Pepsu, Bombay and Madras High Courts have taken the view that such an order is not appealable, while a Bench of the Oudh High Court has taken a contrary view. Reference in this connection may be made to Lok Nath v. Mt. Sattan Bai, AIR 1923 Lah 302; Hira Lal Jwala Sahai v. Sitla Kahna, AIR 1951 Pepsu 82; Kalookhan Fazledin v. Surji Vallabhadas, AIR 1947 Bom 328; Laxmi Investment Co. Pvt. Ltd. Akola v. Tarachand Harbilas, AIR 1968 Bom 250; Sadaya Padayachi v. Chinnaswami Naidu AIR 1935 Mad 609 and Rameshwar Dutt v. Harihar, ILR 13 Luck 246=AIR 1937 Oudh 344.

4. Following the majority view, especially when the Lahore and the Pepsu High Courts have held that such an order is not appealable. I would hold that the order dated 7th May, 1970, in the instant case, was not appealable and, consequently, the order passed by the learned Senior Subordinate Judge dated 2nd January, 1971, under revision before me, was without jurisdiction. This order has, therefore, to be quashed.

5. The result is that this petition succeeds and the impugned order is set aside. In the circumstances of this case, however, I leave the parties to bear their own costs throughout.

6. Petition allowed.


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