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Selambal and anr. Vs. Mannankatti and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1910 of 1979
Judge
Reported inAIR1982Mad8
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 9 - Order 43, Rule 1
AppellantSelambal and anr.
RespondentMannankatti and ors.
Appellant AdvocateM.N. Padmanabhan, Adv.
Respondent AdvocateK. Selvaratnam, Adv.
Cases ReferredParthasarathi v. Chinnapayan.
Excerpt:
.....and 13 and order xliii rule 1(c) conditional order to set aside the dismissed for default whether appealable ; in an application filed under order ix, rule 9 of the code of civil procedure to set aside the dismissal of the suit a conditional order was passed. by a subsequent order the said application was dismissed as the condition had not been complied with. the petitioners preferred an appeal against the earlier order. the appellate court dismissed the appeal as incompetent holding that the earlier order was a conditional order and not appealable and the latter was an appealable order, but not appealed against. the petitioner preferred a revision petition before the high court.; the question thst for consideration was whether the appeal taken by the petitioner against the earlier..........under order 9 r. 9 c.p.c., to set aside the dismissal of the suit. in that application the learned district munsif passed an order to the effect that the application will be allowed on payment of costs by the petitioners to the respondents on or before 2-11-1971, and he further directed the application to be called on 3-11-1971. when the application was called on 3-11-1971, it was found that the petitioners had not deposited the costs. the district munsif thereupon dismissed the application after recording the fact that costs had not been paid.2. the petitioners preferred an appeal to the district court. the appeal was particularly directed against the order daed 23-10-1971. the district judge however dismissed the appeal as incompetent. he made a reference to the two orders.....
Judgment:
1. The petitioners filed a suit in the District Munsif Court, Tirukoilur, for redemption of a mortgage against ,the respondent. The suit was dismissed for default. The petitioners then filed an application under Order 9 R. 9 C.P.C., to set aside the dismissal of the suit. In that application the learned District Munsif passed an order to the effect that the application will be allowed on payment of costs by the petitioners to the respondents on or before 2-11-1971, and he further directed the application to be called on 3-11-1971. When the application was called on 3-11-1971, it was found that the petitioners had not deposited the costs. The District Munsif thereupon dismissed the application after recording the fact that costs had not been paid.

2. The petitioners preferred an appeal to the District Court. The appeal was particularly directed against the order daed 23-10-1971. The District Judge however dismissed the appeal as incompetent. He made a reference to the two orders passed by the District Munsif one on 23-10-1971 and the other on 3-11-1971. After analysing the nature of the two orders, he held that the former was a conditional order and not appealable, and the latter was an appealable order but not appealed against. On this reasoning, the appeal was dismissed.

3. In this revision, Mr. M. N. Padmanabhan, the petitioners, learned counsel, urges that the District Judge failed to exercise his jurisdiction by taking a wrong view about the appealability of the order dated 23-10-1971. Learned counsel relied on a Division Bench ruling of this Court reported inRamayya v. Lakshmayya, (1944) 1 Mad LJ 381: (AIR 1944 Mad 383). Learned counsel pointed out that the order which the ,Division Bench held as appealable in that case was also a conditional order for setting, aside an ex parte decree, the condition being payment of costs on or before a particular date. Learned counsel pointed out that even though there was a follow up order subsequently, the Division Bench held that the. earlier order was appealable.

4. 1 have perused the judgment of the Division Bench cited by Mr. Padmanabhan, I agree that the principle of that decision is applicable to the present case.

5. Mr. K. Selvaratnam, learned counsel for the respondents, sought to distinguish the Bench decision in Ramayya v. Lakshmayya, (1944) 1 Mad LJ 381: (AIR 1944 Mad 383). He sought to spell out a difference between the kind of order which figured before the Division Bench and the order passed in the present case under revision, Mr. Selvaratnam did not make any point about the distinction that in the case before the Division Bench the order in question was passed in an application under 0.9 R. 13 of the Code, whereas the order under revision in the present case was passed in an application made under 0. () R. 9 of the Code. He did not dwell on the difference because the provision, for appeal was available whether the order appealed against is one made under Order 9 Rule 9 or one made under 0. 9 Rule 13 of the Code, both appeals being provided for in Order 43 Rule 1. The material point whichMr. Selvaratnam sought to make out was a distinction based on the wording found in the-order which the Division Bench had to examine in the case cited. That order was in the following terms:- I

"I therefore order the petitioner to pay Rs. 100 for costs of the yespondents irrespective of the result, of, the suits within 15 days from this date. They shall also deposit costs of the suits as a condition precedent before the trial of the suits which are hereby restored to file and posted peremptorily to the 26th July, 1943. In default, the petition will stand dismissed with costs."

The decretal order in the same case some what more accurately expressed its terms as under:-

"It is ordered that the petition be and the same is hereby allowed. It is further ordered 'that the petitioners do deposit into Court a sum of Rs. 100 towards their costs in this petition and also in I. A. Nos. 569, 570 and 625 of 1943 'irrespective of the result of' the suits and do also deposit the costs decreed on or before the 26th July, 1940. It is further ordered that in default of payment the petitions do stand dismissed with costs.

According to Air. Selvaratnam, the Division Bench field this order to be a final appealable order, only because it expressly stated what the consequence of default in payment of costs would be. Learned counsel then turned to the text of the order under revision in the present case for the purpose of

emphasising the difference in language between the two. The order passed by the District Munsif of Tirukoilur was in the following terms: "In the result, the petition will be allowed on payment of Rs. 30 as cost to each of the respondents (two sets) as condition precedent payable on or before 2-11-1971. Call on 3-11-1971".

6. Mr. Selvaratnam said that the above order did not, in so many words, direct that in default of payment of the costs on or before 2-11-1971, the application shall stand dismissed '

7. While there is undoubtedly a verbal distinction between the order in question in the present revision sand the order which the Division Bench had dealt with in their judgment, I do not think that it makes for a distinction with a difference. All that can be said about the two orders, on a comparison of their texts is that whereas in the one case the consequence of non-compliance with the condifl6n is made explicit, in the other it is implicit in the very terms of the order.

8. Mr. Selvaratnam, however, maintained that since the petitioners in this case did not comply with the condition as to payment of costs and since 'he non-compliance with that condition was dealt with only in the subsequent order dated 3-11-1971, that order alone must be regarded as final, and appealable, order. Learned counsel submitted that in a case where the subsequent order merely registers as a narration of a fact, the non-compliance with the terms of the earlier order and does not proceed to make a further direction, then the earlier order may be regarded as final and appealable.

9. I asked learned counsel as to how he would have viewed the order dated 23-10-1971 in this case if the petitioners had, in fact, complied with the terms of the order by paying the costs by 2-11-1971. Mr. Selvaratnam replied that the payment by the petitioners of the costs within time would certainly have the effect of making the order dated 23-10-1971 a final order. He even seemed to grant that it would have enabled the opposite party to take an appeal against that order, as a final order. This answer exposes the weakness in learned counsel's argument. While he is prepared to accept the order dated 23-101971, as a final order and appealable as such if the condition imposed therein were complied with by the petitioners, he is not prepared to attribute ' to the same order any finality in the event of non-compliance by the petitioners with the terms of that order. I cannot accept this curious and diverse way of determining the appealability of the order, not according to its inherent nature and direction, but according to, how it was or was not acted upon by a party. An 'order in a legal proceeding is the expression or communication of an act of Court and it must be interpreted as such. It cannot be construed as to its real character in terms of the mere accident of the parties, reacting thereto. The self-same order cannot be regarded as conclusive according to the nature or degree, of compliance or noncompliance with its terms by the parties. For ex hypothesis, parties can react to an order only after it is uttered. Their reflexes can therefore have nothing to do with the construction of the order, For it might well be that a party can react to an order on a misconstruction of its terms as well as on a proper understanding of its terms. The conclusiveness of an order is strictly a matter to be arrived at by a construction of its terms. It cannot at one and the same time be conclusive and appealable and non-conclusive and nonappealable. To look at ' the order in this way is not construction, but obfuscation.

10. It seems to me that the proper way to regard the appealability of an order under O. 9 R. 9 of the Code or under order 9 Rule 13, for that matter is to find out if it effectively disposes of the relative application. We must, m other words, interpret the decision contained in the order fairly in terms of its language. interpretation of an order of court, like any other document in writing, is not dependent exclusively on what is there expressed. An order can also be understood for what it is by a process of necessary intendment which is also a permissible method of construction.

11. Our Courts are not new to disposals of applications under Order 9 R. 9 or under Order 9 Rule 13 of the Code some times the orders are elaborately expressive even to the point of tedium. Sometimes they leave certain things to be read into, by way of necessary implication. This order is one of the latter kind. When the learned District Munsif said that the petition will be allowed on condition that the petitioners must pay the costs of the other side as a condition precedent, he then and there impliedly directed that the application shall stand dismissed if the costs were not deposited 'in time. This, in my view, is the only proper way of -construing the order dated 23-10-1971,

12. In Ramayya v. Takshmayya (1944) 1 Mad LJ 381: (AIR 1944 Mad 383) Mockett, J., was alive to the difficulty which some times arises in the interpretation of orders of this kind, chiefly owing to their brevity and terseness of language. The learned Judge, however, suggested that in such cases a liberal interpretation should be brought to bear for understanding the terms of the order- His observations deserve to be reproduced:-

"It must naturally be a matter, of difficulty to construe such orders as this, whether they are final or whether they require a second order to complete them. I personally am glad to give a liberal construction to these matters and not by extreme technicality to shut out an appellant from being heard; for after all that is all that he asked for,"

13. Mr. Selvaratnam, however, referred me to a decision of the Kerala High Court reported in N. Karuppan v. M. Sankara Nair, . The Kerala High Court was concerned in that case

with examining whether an appeal lay against a conditional order passed by the Court of first instance in an application filed under 0. 9, Rule 13 of the Code, to set aside an ex parte decree. The condition in that order was the usual one that the defendants should pay the costs to the plaintiffs within a particular time. This order was followed by a subsequent- order. The later order recorded the factum non-payment of costs and dismissed on that ground the defendants' application under Order 9 Rule 13 of the Code. The question before the Kerala High Court was which of the two orders was appealable under Order 43 Rule 1 of the Code. The Court shelved that issue by treating the proceedings before them as a straight-forward revision without an appeal in between against the earlier conditional order passed by the trial Court and by proceeding to grant the requisite relief to the defendants by extending the time for payment of the costs. In that case, the Kerala High Court no doubt expressed their view as to which of the two orders was to be regarded as an appealable order. But their decision on that point was, in my Judgment, well-nigh robbed of the importance of being a precedent because what the learned Judges actually did was to interfere in revision as against the first order itself.

14. I do not propose to follow the example of the Kerala High Court in the present case, as I have earlier mentioned, the conditional order passed by the District Munsif on 23-10-1971, must itself be construed on its terms as an appealable order on the basis of the principles which I have been able to extract from the Division Bench ruling in Ramayya v. Lakshmayya, (1944) 1 Mad IJ 381: (AIR 1944 Mad 383).

15. I may observe that this ruling of the Division Bench of this court has been followed subsequently by learned single Judges of this court in Kommenini Kottiah v. Mavva Narasimhan, AIR 1949 Mad 469 and Balarama Reddi V. Subbarama Reddi, . All the three decisions

including that of the Division Bench are cases which arise out of orders passed in applications filed under Order 9, Rule 13 of the Code. But as I earlier mentioned that does not make any difference in the result because an appeal is provided by Order 43, Rule 1, against an order passed in an application filed under O. 9, RA of the Code as well. The only question in all these and in similar cases, is whether the order can be regarded as falling within the terms of the one or other rule in Order 43, R, L

16. In the course of hearing, my attention was drawn to a recent Division Bench ruling of this court reported in Parthasarathi v. Chinnapayan. (1980) 93 Mad LW 753. In that case, the question, of appealability under Order 41. Rule 5 did not directly arise as between a conditional order on the one hand and a subsequent order on the other both of which had been passed. in an application filed under Order (), Rule 13 of the Code. What was in issue before the Bench in that case was about fixing the starting point for limitation in an appeal against an order passed under Order 9, Rule 13 of the Code in that case also there were two orders a conditional order dated 13-V-1976 followed later by an order dated 7-12-1976, disposing of the applications. The question was whether the period of limitation for an appeal against the order dated 7-12-1976 can be computed from 13-71976 which was the date of the conditional order, as the starting point. The Bench held that the period of limitation had to be calculated from the latter order dated 7-12-1976, since that was the order which was the subject matter of the appeal. This decision which bears on an elementary problem of limitation does not touch the quite different issue in the present revision, namely, which of two orders passed in an application under Order 9, R. 9 ur Order 9, R. 13, could be regarded as the appealable order.

17. For the reasons I have earlier set out, the order of the learned District Munsif dated 23-10-1971 must be held 1to be an appealable order and nonetheless so for the fact that it was in form, a conditional order. It follows, therefore, that the appeal taken by the petitioners against that order before the District Court was a competent appeal under Order 43, Rule I (c) of the Code. That appeal ought to have been entertained, and heard and determined on its merits. The learned District Judge, however, did not do so acting on the erroneous supposition that the order of the District Munsif, dated 23-10-1971, was, t appealable. Now that I have demonsfra4ed the error of the learned District Judge in dismissing the appeal in limine, the order of dismissal has to be set aside, I hereby set aside that order and remand the appeal to the District Judge directing him to take the appeal back on file and bear and determine it on merits and in accordance with the law. This civil revision petition is allowed on these terms there will, however, be no order as to costs.

18. Revision allowed.


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