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Govindaraju and anr. Vs. Lala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 3807 of 1958
Judge
Reported inAIR1959Mad183; (1958)IIMLJ515
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 41, Rule 19(1); ;Madras Appellate Side Rules - Rule 41B
AppellantGovindaraju and anr.
RespondentLala
Appellant AdvocateV. Balasubramanian, Adv.
Respondent AdvocateT.R. Venkataraman, Adv. for R. Ramamurthi Ayyar, Adv.
Cases ReferredSubbamma v. Venkata Reddi
Excerpt:
- .....2 mad lj (nrc) 88 came to the conclusion that this court has no jurisdiction to restore to file civil revision petitions which have been dismissed for default of appearance mainly on the ground that o. ix r. 9 c. p. c. applies only to suits and not to civil revision petitions. byers, j. also followed his own decision in subbamma v. venkata reddi, : air1943mad260(1) . this is one line of decisions. 3. kunhi raman, j. in c. m. p. no. 5421 of 11942 and wadsworth, j. in c. m. p. no. 2962 of 1943 have taken the view, that this court has powers to restore such revision petitions. 4. on account of the divergence of opinion the matter was taken up and the rules committee was consulted. 5. the high court drafted rule 41-b to be added to chap. iv of part ii of the appellate side rules which was.....
Judgment:
ORDER

Ramaswami, J.

1. The point lor determination is whether a civil revision petition which has been dismissed for default of appearance can be restored. So far as this High Court is concerned there are two lines of decision.

2. Byers, J. in Ramamurthi v. Meenakshi Sundarammal : AIR1945Mad103 following the decision of Burn, J. in Khizar Muhammad v. Abdul Razack, 1941 2 Mad LJ (NRC) 88 came to the conclusion that this court has no jurisdiction to restore to file civil revision petitions which have been dismissed for default of appearance mainly on the ground that O. IX R. 9 C. P. C. applies only to suits and not to civil revision petitions. Byers, J. also followed his own decision in Subbamma v. Venkata Reddi, : AIR1943Mad260(1) . This is one line of decisions.

3. Kunhi Raman, J. in C. M. P. No. 5421 of 11942 and Wadsworth, J. in C. M. P. No. 2962 of 1943 have taken the view, that this Court has powers to restore such revision petitions.

4. On account of the divergence of opinion the matter was taken up and the Rules Committee was consulted.

5. The High Court drafted rule 41-B to be added to Chap. IV of Part II of the Appellate Side Rules which was in these terms:

'41-B: The provisions of Rules 11(2), 17, 18 19 and 21 of order XLI of the Code of Civil Procedure shall apply Mutatis Mutandis to civil revision petitions.'

This rule was finally added on 31-7-1946.

The combined effect of Rule 41-B of the Appellate Side Rules and Order 41 Rule 19(1) of the Civil Procedure Code is to invest the High Court with power to restore a civil ' revision petition which has been dismissed for default where it is proved that the petitioner was prevented by sufficient cause from appearing when the petition was called on for hearing.

6. Having come to the conclusion that I have got jurisdiction to restore a civil revision petition dismissed for default of appearance the next point for determination is whether in the circumstances the civil revision petition should be restored to file. I hold that in the present case enough circumstances have been shown for restoration of the civil revision petition dismissed for default. Ordered accordingly, C. R. P. 1540 of 1956 will be restored to file and heard in the usual course.


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