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Desh Bandhu Gupta Co. Vs. K.B. Malik and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 361D of 1966
Judge
Reported inILR1972Delhi342; 1972RLR18
ActsCode of Civil Procedure (CPC), 1908 - Order 9 - Rule 9
AppellantDesh Bandhu Gupta Co.
RespondentK.B. Malik and Co. and ors.
Advocates: D.B. Gupta and; J.R. Goel, Advs
Excerpt:
(i) civil procedure code - order 9 rule 9--application under--dismissed in default--second application, if competent--application for restoration of earlier one can lie.; that where the application is not for restoration of an application preferred under order 9 rule 9, and dismissed in default but is an independent application again asking for the same relief which was covered by the application already dismissed, then the second application would not be maintainable.; where an application preferred under order 9, rule 9, is dismissed in default a second application would lie for urging that there was sufficient cause for condoning the default and for restoring the application to hearing.; (ii) practice--dismissals of causes and restoration thereof--duty of lawyers and litigants.; that..........march, 1965, passed by the sub-judge, who dealt with an application filed under order 9 of the civil procedure code.(2) the petitioner had filed an application under sections 14. 17. 33, 8, 11 and 12 of the arbitration act, on the 3rd of february. 1964. in tile court of the senior sub-judge, delhi. the application bearing the verification under the date 27th january, 1964, was filed actually on the date mentioned above. the trial court initiated proceedings on the said application and the respondents came before it. on the 26th of november, 1964, which was the date fixed for the defendants to adduce evidence, the case was called out at 10.40 a.m. the record bears an order to the effect that nobody was present on behalf of the present petitioners who were the applicants before the.....
Judgment:

Pritam Singh Saffer, J.

(1) This petition is directed against an order made by the Additional District Judge, Delhi, on the 7th of February, 1966. By that order he dismissed the appeal which had been filed against the order dated the 26th March, 1965, passed by the Sub-Judge, who dealt with an application filed under Order 9 of the Civil Procedure Code.

(2) The petitioner had filed an application under sections 14. 17. 33, 8, 11 and 12 of the Arbitration Act, on the 3rd of February. 1964. in tile court of the Senior Sub-Judge, Delhi. The application bearing the verification under the date 27th January, 1964, was filed actually on the date mentioned above. The trial court initiated proceedings on the said application and the respondents came before it. On the 26th of November, 1964, which was the date fixed for the defendants to adduce evidence, the case was called out at 10.40 a.m. The record bears an order to the effect that nobody was present on behalf of the present petitioners who were the applicants before the court. It may be observed that the application preferred under the Arbitration Act had been registered as a suit. While nobody was present on behalf of the applicants (plaintiffs), the defendants were represented by their counsel. The trial court did not consider it appropriate to dismiss the application (suit). The matter was adjourned for being called out again. On the same day i.e. 26th November, 1964, the case having been called out again it was found that nobody was present on behalf of the plaintiffs. It was noticed that the witnesses called by the defendants were present. In those circumstances the suit was dismissed. The order was made by the trial court while exercising its powers in terms of Order 9 rule 8 of the Civil Procedure Code.

(3) The plaintiffs, who are the petitioners before me. made an application under the date 26th November, 1964. itself. The application was made under Order 9, rule 13 with the prayer that the suit be restored for evidence. A note was put up to the court which contained the objection that the application was under Order 9, rule 13 and the same was not accompanied by any affidavit. On the 28th of November. 1964, the trial court passed the following order :-

'THE application is without an affidavit. It is under Order 9, rule 13 Civil Procedure Code. No such application is maintainable on the allegations made in the petition. Hence dismissed.'

It is nobody's case that an application could have been preferred under Order 9, rule 13. The trial court had not passed any ex-parts decree. It had dismissed the suit in terms of rule 8 of order 9 of the Civil Procedure Code. The application preferred being incompetent was rightly dismissed. A second application was then preferred by the present petitioners under the date 30th November, 1964, under Order 9, rule 9 of the Civil Procedure Code. That application is on page 185 of the original record. it is indeed intriguing as to why the plaintiffs who had incurred the dismissal of their suit on the 26th of November, 1964, and who had been careless in preferring the first application under Order 9, rule 13, were so abundantly careless once again so as not to mention at all the names of the parties in the application preferred under the date 30th November, 1964. I find from a perusal of the record that the application is headed by the description of the name of the officer before whom it was being preferred and thereafter it is typed therein that the application was for restoration of the suit and to set aside the order dismissing the suit in default under order 9, rule 9 of the Civil Procedure Code. There is a complete absence of the description of the parties. The application was rightly dismissed by the order dated the 7th of December. 1964. The court could not know as to with which suit the application was concerned. No application was preferred under Order 9. rule 9 of the said Code lor the restoration of that application along with an application under Order 6, rule 17 of the Civil Procedure Code for introducing the names of the parties by way of amendment. That was the course open to the petitioners. it has been a uniform view that where an application. preferred under order 9, rule 9 is dismissed in default a second application would lie for urging that there was sufficient cause for condoning the default and for restoring the application to hearing. If due to gross inadvertence the petitioners had not mentioned the names of the parties in the application preferred under order 9, rule 9 of the Civil Procedure Code under the date 30th November, 1964, then they should have applied under order 6, rule 17 of the said Code to obtain the relief for being permitted to amend the application so as to introduce the names of the parties and the number of the suit to which the application related. Along with that, as already observed, an application could have been preferred for restoration of the application dismissed by the order dated the 7th of December, 1964. What remedy was otherwise open to the petitioners? It is clear from order 43, rule l(c) that the order dismissing the application under order 9, rule 9 of the Civil Procedure Code was appealable. The application under the Arbitration Act had been instituted with the prayer that the award mentioned therein be set aside. Section 39 of the Arbitration Act provided for an appeal against an order which may have been made either setting aside or refusing to set aside the award. Clause (c) of order 43, rule (1) is:- '1. An appeal shall lie from the following orders under the provisions of section 104, namely:- ****** (c) an order under rule 9 of order Ix rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit : The application filed under the Arbitration Act, registered as a suit in accordance with law, was such that the ultimate order made in terms of the final adjudication would have been appealable under section 39 of the Arbitration Act. An appeal could have been filed under order 43, rule I (c) of Code against the order dated the 7th of December, 1964. It could have been urged in the course of the appeal that the description of the parties was not given in the application dated the 30th of November, 1964, due to inadvertence but then the application had been signed by the counsel for the plaintiffs and had been rightly instituted.

(4) It is urged on behalf the petitioners before me that instead of dismissing the application on 7th of December, 1964, the trial court should have directed that the same be returned to the counsel for the applicants for rectification. That plea could have been taken before the court of appeal. The consequence of not filling of appeal against the order dated the 7th of December, 1964, is that the said order remains final. The petitioners preferred a third application under the date 8th December, 1964. That application was preferred under order 9, rule 9 of the Civil Procedure Code and having received a reply thereto the trial court framed two issues :- (1) What is the effect of the dismissal of the two applications of the petitioner (2) Whether there is sufficient cause for the non-appearance of the petitioner on 26th November, 1964. The trial court after hearing the parties came to the conclusion that no second application under order 9, rule 9 would be competent where an earlier application preferred under the same provision may have been dismissed. Where the party had the remedy to go up in appeal but did not utilise the same, it could not move an application under order 9, rule 9 of the Civil Procedure Code. The court of appeal in the course of its order dated the 7th of February, 1966, went into the details of the circumstances of the case.

(5) Mr. Desh Bandhu Gupta, who has urged this petition, took time yesterday on the basis of a contention that he would be able to cite an authority that a second application under order 9, rule 9 of the Civil Procedure Code would be maintainable in spite of the dismissal of a previous application. The learned counsel submits this morning that there is ample authority that such an application would lie for restoring an application already made under order 9, rule 9. He is unable to cite any authority to show that where the application is not for restoration of an application preferred under order 9, rule 9, and dismissed in default but is an independent application again asking for the same relief which was covered by the application already dismissed, then the second application would be maintainable. Apart from the above I have thrice read the order passed on the 26th of November, 1964. It is quite obvious that the case was called out at 10.40 a.m. and in the course of the order the trial court felt that it should not outright dismiss the suit. It was directed that the file be kept alive and the case be called out again. That was the order passed at 10.40 a.m. It was later in the day that the suit was dismissed.

(6) Scanning through all the three applications the plea repeatedly urged is that the petitioner went to the court at 11.45 am. and that that was a sufficient cause to set aside the dismissal. It is not clear as to why, if not the counsel, somebody else was not taking care about the case at all. Going to the court at 11.45 a.m. by itself was no justification for asking for the restoration of the suit. Whenever and wherever a court is seized of a matter and the same is running in the daily list, if the counsel or the party wants to be accommodated, the request is to be made to the court at the earliest that the case may be taken up at a particular part of the day. A party cannot make the choice of leisurely absenting itself and then saying that at a particular time the counsel for the party or the party itself walked into the court room and, thereforee, for that reason the court should have felt satisfied and should have restored a suit or a matter which may have been otherwise dismissed in exercise of appropriate jurisdiction. This petition has been preferred under section 115 of the Code of Civil Procedure. The learned counsel for the petitioner, has not been able at all to show that there was any jurisdictional infirmity in the impugned order made by the trial court and affirmed by the court of first appeal. He is unable to show that there was any illegality or material irregularity. The revision petition cannot be urged within the four corners of section 115 of the Civil Procedure Code. The same is dismissed. There will be no order as to costs.


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