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Dipchand Pyarelal Vs. Thakkar Hasmukhlal Keshavlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR403
AppellantDipchand Pyarelal
RespondentThakkar Hasmukhlal Keshavlal
Cases ReferredKanji Mulji Kanani v. Manglaben Parmanand
Excerpt:
- - majmudar, however, in this connection urged that by virtue of other provisions of the code, this section will mutatis mutandis apply to the application as well. for them, no specific mention was required to be made by enacting the section like the section 141 of the code. the learned judge treated the application as the suit itself and incidentally made an observation that because of section 141 of the code, other provisions of the code like rule 16 were attracted, so, the observation of the learned judge is to be held an obiter observation in view of the division bench judgment of the bombay high court in d.n.h. bhatt, j.1. this is a revision application by the tenant, who was the defendant in the civil suit no. 396 of 1971 of the court of the civil judge (j.d.) baroda. in that suit for possession, an ex parte decree had come to be passed on 13-11-71. the suit was filed for possession on the ground of non-payment of rent, despite a notice of demand issued under section 12(2) of the bombay rent act. the plaintiff's contention was that he was not duly served with the summons and came to know of the ex parte decree when the bailiff went to his premises with a warrant for possession issued in the execution application no. 167 of 1972 of that court. he, therefore, filed an application under order 9 rule 9 of the civil procedure code on 19-4-72 and prayed for setting aside the ex parte decree. the.....
Judgment:

N.H. Bhatt, J.

1. This is a revision application by the tenant, who was the defendant in the Civil Suit No. 396 of 1971 of the court of the Civil Judge (J.D.) Baroda. In that suit for possession, an ex parte decree had come to be passed on 13-11-71. The suit was filed for possession on the ground of non-payment of rent, despite a notice of demand issued under Section 12(2) of the Bombay Rent Act. The plaintiff's contention was that he was not duly served with the summons and came to know of the ex parte decree when the bailiff went to his premises with a warrant for possession issued in the execution application No. 167 of 1972 of that court. He, therefore, filed an application under Order 9 Rule 9 of the Civil Procedure Code on 19-4-72 and prayed for setting aside the ex parte decree. The said application also came to be dismissed because he and his advocate were absent on 9-12-74. On the following day, namely on 10-12-74, another application was filed for restoration of that earlier application for setting aside the ex parte decree. The learned trial Judge dismissed the same on 8-12-75 on the ground that such an application did not lie under Order 9 Rule 9 of the Code. The original defendant, therefore, filed the Civil Appeal No. 3 of 1976 in the District Court of Baroda, where the Extra Assistant Judge came to dismiss the same. The present revision application under Section 29(2) of the Rent Act is directed against the order passed by the learned appellate Judge.

2. The learned appellate Judge concurred with the learned trial Judge in dismissal of the second application firstly on the ground that such an application did not lie. In the view of the learned Judge, the only provisions of the Civil Procedure Code, which extended an opportunity to such an applicant was Section 151 of the Code, but in his view no appeal lay against the order passed by the trial Judge under Section 151 of the Code. The learned Judge further alternatively held that even if an appeal lay to him against the order purporting to have been passed by the learned trial Judge under Section 151 of the Code, the facts and circumstances of the case were such as would make him dismiss the appeal. It is this order of the learned appellate Judge that is seriously called in question by Mr. Majmudar for the petitioner.

3. The provisions of Order 9 Rule 9 of the Civil Procedure Code are quoted below:

Decree against plaintiff by default bars fresh suit.

9. (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit id 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 (he dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

Prima facie they show that they are related to a suit and they do not apply to an application under other provisions of the Code. Mr. Majmudar, however, in this connection urged that by virtue of other provisions of the Code, this section will mutatis mutandis apply to the application as well.

4. It must be conceded forthwith that there are divergent views amongst the High Courts on this question. The learned appellate has noted these facets and, therefore, I do not repeat the same. Mr. Majmudar, however, placed very heavy reliance on the Full Bench judgment of the Madhya Pradesh High Court in the case of Nathu Prasad v. Singhai Kapurchand : AIR1976MP136 It cannot be gainsaid that this decision of the Madhya Pradesh High Court fully stands by Mr. Majmudar's submission. However, in view of the long standing view of the Bombay High Court in the case of D.B. Manke v. B. Waldwkar A.I.R. 1923 Bombay 386, which is a Division Bench judgment holding the field all these years, I do not think that it is open to me to adopt the view put forward by the Full Bench of the Madhya Pradesh High Court. This point arose pertinently in that case and the Division Bench has observed as follows:

It cannot be said that there is any rule in the Code of Civil Procedure that enables the court to restore an application made under Order IX Rule 9 which has been dismissed for want of prosecution.

Mr. Majmudar, however, urged that the provisions of Section 141 of the Code were not brought to the notice of the Division Bench of the Bombay High Court and that in that view, the matter should be referred by me to a larger Bench so that the reasonable view adopted by the Full Bench of the Madhya Pradesh High Court ultimately be accepted by this High Court. With profound respects to the Judges constituting the Full Bench of the Madhya Pradesh High Court, I say that Section 141 of the Code is not attracted and it cannot be employed in service. I quote Section 141 below:

141, 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.

The provisions of the Code that apply to suits in the Civil Courts whose jurisdiction is laid down in Section 9 of the Code are made applicable to any court exercising civil jurisdiction. The word 'any' in the context means 'any other'. It is evident that the civil courts exercising jurisdiction under Section 9 of the Code are bound to be guided by the procedure laid down in the Code. For them, no specific mention was required to be made by enacting the section like the Section 141 of the Code. In order to lay down the procedure of other civil forums, Section 141 is brought on the statute book. It lays down that the procedure that is laid down in this Code for courts exercising jurisdiction under Section 9 of the Code will be deemed to be the procedure with necessary changes when other judicial forums exercising civil jurisdiction happen to deal with civil disputes. The obvious reference by implication is to the courts exercising matrimonial, insolvency and testamentary jurisdictions. Such courts are not courts exercising jurisdiction under Section 9 of the Code and, therefore, ordinarily the procedure laid down in that Code would not be applicable to those judicial forums. Section 141, therefore, steps in and enjoins upon all those judicial forums exercising civil jurisdiction to be guided by the provisions of the Code in the matter of exercise of their powers. Mr. Majmudar submitted that the word 'any' occurring in Section 141 should be construed broadly, but by necessary implication, the word 'any' means 'any other'.

5. Mr. Majmudar in this connection invited my attention to the judgment of the Gujarat High Court in the case of Kanji Mulji Kanani v. Manglaben Parmanand 10 G.L.R. 1011 where the learned Single Judge of this Court invoked Section 141 of the Code for the purpose of dealing with the preliminary inquiry into pauperism. The question before the learned Judge was as to when the suit can be said to have been instituted - whether on the day an application to sue in forma pauperism is made or on the day the said application was granted, making the application itself a suit. Incidentally the learned Judge observed that taking into consideration the provisions of Section 141 of the Code, even before the stage of granting of an application is reached, an application for amendment filed by a pauper can be allowed to be amended. The applicant in that case sought to amend his would be plaint before the said application was granted and this prayer was resisted. The learned Judge treated the application as the suit itself and incidentally made an observation that because of Section 141 of the Code, other provisions of the Code like Rule 16 were attracted, So, the observation of the learned Judge is to be held an obiter observation in view of the Division Bench judgment of the Bombay High Court in D.B. Mankc's case (supra). I am bound by the view of the Division Bench of the Bombay High Court. The result is that the revision application stands rejected with costs. Rule is discharged. The execution of the decree for possession is stayed for a period of three months from today to enable the petitioner to seek his further remedy, if any.


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