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Hazi Rustam Ali Vs. EmamnuddIn Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 268 of 1979
Judge
Reported inAIR1981Cal81
ActsCode of Civil Procedure (CPC) , 1908 - Sections 141 and 151 - Order 9, Rules 9 and 13 - Order 43, Rule 1
AppellantHazi Rustam Ali
RespondentEmamnuddIn Khan and ors.
Appellant AdvocateAsis Kumar Sannyal, Adv.
Respondent AdvocateAsis Kumar Bagchi, Adv.
Excerpt:
- .....31st of january, 1977 the petitioners tiled an application under order 9, rule 13 of the code of civil procedure for restoration of the suit this application was registered as misc. case no. 20 of 1977. but when this misc. case came up for hearing on the 9th of september, 1978, the defendants were again absent and hence it was dismissed with costs to the plaintiff by order no. 64 dated the 9th of september, 1978. on the 9th of september, 1978. the petitioners (defendants) filed an application under section 151 of the code of civil procedure for resloration of the ap-petition under section 151, c. p. c. dismissed for default. the explanation given was that they had come to court at 11-30 a. m. but the said misc. case was dismissed for default at 11-55 a. m. the learned munsif was of the.....
Judgment:
ORDER

Jyotirmoyee Nag, J.

1. This Rule is directed against Order No. 68 dated 25th November, 1978 in Misc. Case No. 20 of 1977 by the learned Munsif, 2nd Court, Malda. The opposite parties-plaintiffs filed suit being O. C. Suit No. 57 of 1971 in the Court of the Second Munsif, Malda praying for declaration of the title in respect of 89 decimals of danga land in Dag No. 359 in mouza Narayanpur, P. S. Kaliuhaek, District-Malda and for recovery of possession by evicting the defendant-petitioners. The suit was fixed for peremptory hearing on the 21st of January, 1977. The defendants being absent on that day, the suit was decreed ex parte. Thereafter, on the 31st of January, 1977 the petitioners tiled an application under Order 9, Rule 13 of the Code of Civil Procedure for restoration of the suit This application was registered as Misc. Case No. 20 of 1977. But when this Misc. case came up for hearing on the 9th of September, 1978, the defendants were again absent and hence it was dismissed with costs to the plaintiff by Order No. 64 dated the 9th of September, 1978. On the 9th of September, 1978. the petitioners (defendants) filed an application under Section 151 of the Code of Civil Procedure for resloration of the ap-petition under Section 151, C. P. C. dismissed for default. The explanation given was that they had come to court at 11-30 A. M. But the said Misc. case was dismissed for default at 11-55 a. m. The learned Munsif was of the view that the dismissal of the case is nothing but a decree and there are specific provisions for taking steps in a case of dismissal. Hence a petition under Section 151, C. P. C. cannot be entertained in the instant case. The petitioner's lawyer had drawn the attention of the learned Munsif to the case reported in : AIR1975Cal80 (FB). But the learned Munsif was of the view that, that case was not applicable in the facts and circumstances of the present case and hence be rejected the application as already stated.

2. On behalf of the petitioners Mr. Asis Kumar Sannyal has laid stress upon the principles laid down in the case reported in : AIR1975Cal80 (FB). According to him the learned Munsif erred in finding that the dismissal of the Misc. case for default is not decree under that order and held that S. 151 of the Code of Civil Procedure did not apply for restoration of the Misc. case and moreover, it is submitted by Mr. Asis Sannyal that the learned Monsif has misled and misconstrued the decision stated on behalf of the petitioners reported in : AIR1975Cal80 (FB).

3. On the other hand, Mr. Bagchi, for the opp. parties has submitted that that decision does not apply to the facts of the present case under Section 151 of the amended Civil Procedure Code, the application for restoration could have been made. But it is wrong to submit that the aforesaid decision applied to the facts of the present case inasmuch as that case related under Order 21, Rule 19 of the Code of Civil Procedure and it is not correct to say that the appeal is preferred from dismissal of an application under Order 9, Rule 13. The relief available to him in appeal is illusory because the appellate Court would have no materials on record to render a decision on the sufficiency of the cause shown to give relief to him. That the provisions of Section 151 of the Code of Civil Procedure can only be invoked in exceptional circumstances is not doubled when other remedies are available to the petitioner under the Code of Civil Procedure the relief under Section 151 cannot be had recourse to unless those other remedies are exhausted. Moreover, when the Code of Civil Procedure by its amendment of Section 141 by adding an explanation has brought the proceeding under Order 9 on par with a suit the procedure laid down under Order 9, Rule 9 should be followed.

4. Mr. Bagchi appearing on behalf of the opp. party has submitted that there was some doubt previously and that doubt has been resolved by the amendment of Section 141 of the Code of Civil Procedure by adding the explanation. Therefore, when the application under Order 9, Rule 13 was dismissed for default. The petitioner should make an application for setting aside the order of dismissal for default by making an application under Order 9, Rule 9, but not under Section 151 of the Code of Civil Procedure.

5. In this connection, Mr. Bagchi has re-tied upon a decision reported in : AIR1976MP136 (FB). It has been held in this case that a proceeding in court in respect of an application under Order 9, Rule 9 is a proceeding in a court of civil jurisdiction within Section 141. An application under Order 9, Rule 9 of the Code of Civil Procedure is not an interlocutory application. By its nature an application under Order 9, Rule 9 is an independent application and it is registered as an independent Misc. Judicial case. Hence an application lies to restore the application which was dismissed for default which application had been made for setting aside the dismissal of a suit for default. It has been further held that there is nothing in the wordings of Order 43, Rule 1 (c) of the Civil Procedure Code to restrict it to rejection on merits. The words 'rejecting an application' are comprehensive enough to include dismissal for default, rejection in any other situation whatever. Thus, an appeal lies under Order 43, Rule 1 (c) from an order dismissing for default or on merits, an application under Order 9, Rule 9. When an application is made for an order to set aside the dismissal of a suit and such an application is rejected by an order under Order 9, Rule 9, Civil Procedure Code, in terms, it falls under Order 41, Rule 1 (c). Now when a suit is decreed ex parte and an application under Order 9, Rule 13 is dismissed for default and an application is made to set aside the dismissal, it would attract the provisions of Order 9, Rule 9 it is in view of the amended provisions of Section 141 of the C. P. C. When an application under Order 9, Rule 13 is dismissed for default, both the remedies are available to the applicant, He can apply for restoration under Order 9, Rule 9, C. P. C. or he may appeal under Order 43, Rule 1 (c). Thus, side by side, two remedies are open to him.

6. Mr. Bagchi submitted that instead of making an application under Section 151 the proper course would have been to make an application for restoration of the application dismissed for default under Order 9, Rule 9 of the C. P. C. read with Section 141, Civil P. C. Hence there is no need to refer to the decision reported in : AIR1975Cal80 (FB). Since the Code provides for an alternative remedy, it is well known that the remedy under Section 151 is not available. There seems to be much substance in the contention of Mr. Bagchi which I uphold.

7. In the result, this Rule is discharged.

8. There will be no order for costs.


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