Anil Chandra Roy and Others vs Uma Kanta Roy and Others

T.C. Das, J.—This revision petition arises out of a suit filed by the Plaintiff-opposite party Nos. 1 and 2 against the Petitioners (as Defendant Nos. 1 to 6) praying for declaration of right, title, and for partition of the suit land as described in schedule to the plaint. The revision petition is mainly directed against the judgment and order dated 28th July, 1979 passed by the learned District Judge, Goalpara, Dhubri in Misc. Appeal No. 5/78, affirming those passed by the learned Asstt. District Judge Goal-para in Misc. (J) Case No. 8/77.

The intrinsic facts to get a grip of the questions of law as raised by the Petitioners in this revision petition may be summarised as follows:

The opposite party Nos. 1 and 2 brought an action against Petitioners and others in Title Suit No. 39/62 in the Court of Assistant District Judge, Goalpara at Dhubri which was decreed exparts against the Petitioners and decreed on compromise for partition against the present opposite party Nos. 3 to 7. Accordingly, a preliminary decree was passed on 7.4.66. As there was no objection from any quarter, the preliminary decree was made final on 12.5.69. Thereafter the present Petitioners, against whom the exparts decree was passed, filed an application on 25.5.73 under Order 9 Rule 13 CPC for setting aside the preliminary as well as final decree passed against them on the ground that they did not know about the suit nor any summon was served on any of them and they were not aware of the suit as regards the disputed property even after the final decree was passed. It was alleged by the Petitioners that they got information about the decree for the first time only on 10.5.73 from one Shri Mohini Mohan Sarkar, a Clerk of an Advocate of Dhubri Court. On receipt of this information, they preferred an application under Order 9 Rule 13 CPC with a prayer to set aside the exparts decree passed against them. The Petition was numbered as Miscellaneous (J) Case No. 40/74 which was fixed for hearing on 4.12.75 On that date, the case was adjourned and the next date for bearing was fixed on 17.1.77, It was alleged by the Petitioners that the Petitioner No. 1 who used to look after the case on behalf of the other Petitioners could not attend the Court with witnesses as he was ill, for which a petition was filed for adjournment on the ground of illness of Petitioner No. 1. The said petition for adjournment was rejected as the Court found no sufficient ground to adjourn the case on the said day, consequent of which, the petition was dismissed for default on 17.1.77. Thereafter, another petition under Order 9 Rule 9 of CPC was filed by the Petitioner for setting aside the order of dismissal for default of the said misc. case. The petition was supported by it medical certificate showing the illness of Petitioner No. 1 on 17.1.77. The second petition was numbered as Misc. (J) Case No. 8 of 1977 and accordingly, the date of hearing was fixed on 15.12.77. Three witnesses including the Doctor who issued the medical certificate were examined on behalf of the Petitioners. The opposite party Nos. 1 and 2 herein, did not adduce any evidence on their behalf. The learned Asstt. District judes, scanned the evidence on record and found that the Petitioners failed to show sufficient cause for not attending the Court on the said date and as there was no cogent and reliable evidence to support the case of the Petitioners, the learned Asstt. District Judge dismissed the petition under Mise. Case No. 8/77 by its order dated 15.12.77.

Being aggrieved by the said order of dismissal, the Petitioners preferred an appeal being Misc. Appeal No. 5/78, against the order dated 11.12.77 in the Court of the learned District Judge, Dhubri. It was contended by the opposite parties before the learned District Judge that the appeal was not competent against the order passed in an application under Order 9 Rule 9 for setting aside an order of dismissal of a petition preferred under Order 9 Rule 13 of the Code of Civil Procedure. The learned District Judge, upheld the contentions of the learned Counsel for the opposite party Nos. 1 and 2 and held that the appeal was incompetent. Accordingly, the appeal was dismissed by its order dated 20.7.70. This is how the present petition is presented before this Court calling for an interference u/s 115 of the Code of Civil Procedure.

The only controversy between the parties in this revision petition is whether the learned Appellate Court below was wrong in holding that the appeal was incompetent.

Mr. P. Choudhuri, learned Counsel for the Petitioners has urged on the strength of a decision of this Court reported in AIR 1954 Assam 1 Madanlall Agarwalla v. Tripura Modern Bank, Ltd. that the appeal was competent, In the above case, a controversy was raised whether a petition u/s 151 CPC is competent against an order of dismissal of a petition under Order 9 Rule 13 of the Code of Civil Procedure, It was ruled that where an application under Order 9 Rule 13 is dismissed for default or on merits, an appeal will be competent under Order 43 Rule 1 of the Code of Civil Procedure. Though the judgment was delivered independently, but all the Hon''ble Judges expressed their concurrent views that in application u/s 151 CPC was also competent though Hon''ble Deka, J. observed:

(51) The consensus of the Judicial opinion, therefore, is to my mind that no matter whether to application under Rule 13, Order 9, is dismissed for default or on the merits, an appeal will be competent under Order 43, Rule 1(d) Code of Civil Procedure. As to whether an application u/s 151, CPC would lie should be left to the circumstances of the case. We need not set any limit to or set out the conditions under which a party might claim relief under inherent powers of the Court. In the above view, as a matter of fact, there is no conflict between the two decisions of the Assam High Court reported in ''AIR 1952 Gau 93", and ''AIR 1952 Gau 75.

Drawing the analogy and also the principles laid down in Madanlall (Supra), Mr. P. Choudhuri, learned Counsel has submitted that the same principle, if applied, it must be held that the appeal is maintainable under Order 43 Rule 1(c) of the CPC while a petition under Order 9 Rule 9 was dismissed on merit. The learned Counsel has drawn my attention that it is not the case where the petition under Order 9 Rule 9 of CPC was dismissed for default. It was dismissed on merits on consideration of the evidence by the learned trial court though it held that the Petitioner failed to show any sufficient cause for not attending the court while the petition under Order 9 Rule 13 of the CPC was called on for hearing. The learned Counsel, therefore, submits that the appeal was competent and as the learned Appellate Court did not decide the appeal on merits, it is a fit case of remind for the decision of the appeal on merits.

The case cited above is not directly applicable in the present case at hand, There is no dispute that the order passed in a case, either under Order 9 Rule 13 or Rule 9 CPC is an appeasalable order. But the main question, as raised in this revision petition is as regards the maintainability of the appeal against the order of dismissal of an application under Order 9 Code of Civil Procedure, preferred for restoration of an application dismissed earlier under Order 9 Rule 13 of the Code. Mr. P. Chaudhari, learned Counsel for the Petitioners has further submitted that the appeal is competent against an order dismissing a petition under Order 9 Rule 13 CPC for default, There is no dispute on this paint. But if the dismissal order is sought to be set aside by a further application under Order 9, Rule 9, CPC and if that application is dismissed either for default or on merit, can an appeal lie against that order? The learned Counsel has further submitted that at the time when then appeal in question was filed before the learned District Judge, amended CPC did not come into force. It is not correct, as because the appeal was files after coming into force the amended Code of Civil Procedure. However, I need not travel to that extent as the question posted in this petition can be answered on the plain reading of the provisions of Order 9 Rule 9 and the provisions as laid down under Order 43 Rule 1(c) of the CPC read with the provisions of Section 141 of the Code. In Madanlal (Supra), this Court considered the principles about the maintainability of the appeal and held that appeal was competent as regards the order of dismissal of the original petition preferred under Order 9 Rule 13 or Rule 9 CPC and also considered the question of maintainability of an independent petition u/s 151 of CPC praying for setting side the order of dismissal. I have given due consideration to the Madanlall''s case (supra). But, I am of the opinion that decision of the said case will not help Mr. Choudhuri in the present case. It is true that facts of that case are not similar with that of the present case. But the question that has been raised in this case is different from that of those raised in that case. It would be a mere repetition to say that the appeal in this case was preferred against the order of the dismissal of the second application under Order 9 Rule 9 CPC preferred against the order of dismissal of the earlier application under Order 9 Rule 13 Code of Civil Procedure.

In reply, Mr. P.N. Goswami, learned Counsel for the opposite parties has contended that this is not a case where the principles as laid down in Madanlal (supra) is applicable. The core question in that case was as to whether the petition u/s 151 CPC was competent inspite of the fact that there was clear provision of appeal at laid down under Order 43 Rule 1(c) and (d) of the CPC in case a petition under Order 9 Rule 9 and/or Order 9 Rule 13 was dismissed on merit or for default. Mr. Goswami has further submitted that Madanlall''s case was decided long before the amended provision of CPC came into force. The learned Counsel has further submitted that in view of the explanation to Section 141 of the CPC an application under Order 9 Rule 9 CPC is to be treated as a proceeding in a Court of Civil jurisdiction and cannot be treated as an interlocutory application. It is by its own nature, an application under Order 9 Rule 9 is an independent application which is normally registered as a miscellaneous case. It is beyond doubt that when an application under Order 9 Rule 9 of CPC is dismissed for default, two remedies are available to the applicant namely, (a) either he can apply for restoration under Order 9 Rule 9 of the CPC or u/s 151 CPC as the case may be and (b) the applicant may prefer an appeal under Order 43 Rule 1(c) of Code of Civil Procedure. Therefore, two remedies are open for the Applicant and one will sot exclude the other. But if the appeal is filed and decided, naturally the original order will be merged with that of the appellate order.

The main dispute in the present case is whether an application under Order 9 Rule 13 of CPC preferred for setting aside the original decree, it dismissed for default and to restore the same, another application under Order 9 Rule 9 of the said Code is filed, which, when subsequently dismissed either for default or on merit, whether the provisions of Order 43 Rule 1(c) is attracted? At this stage it would be convenient (sic) quote the provisions of Section 141 of the Civil Procedure which supplies the correct answer to the core question raised herein. The provisions as laid down u/s 141 of the Code of Civil Procedure, is quoted herein below:

Miscellanous proceedings-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.

Explanation.-In this section, the expression proceedings includes proceedings under Order IX but does not include any proceeding under Article 226 of the Constitution.

Thus it appears that by virtue of explanation, the expression ''proceedings'' includes a proceeding under Order 9 of Code of Civil Procedure. It is not a suit but a proceeding, Order 9 Rule 9 speaks of an application relating to a suit. Similarly, an application made under Order 9 Rule 13 is also a proceeding in view of the explanation of Section 141 of Code of Civil Procedure. To answer a question whether an appeal is competent under Order 43 Rule 1 of Code of Civil Procedure, from an order of dismissal for default of an application under Order 9 Rule 9 and 13 the relevant clauses namely, Clauses (c) and (c) of Rule 1 of Order 43 are to be taken into consideration. Order 43 Rule 1(c) of the Code lays down that an appeal shall lie against an order under Order 9 Rule 9 rejecting an application (in a case open, to appeal) for an order setting aside she dismissal of a suit. Rule 1(d) of Order 43 CPC speaks of an appeal against an order passed under Rule 13 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside (sic) decree passed expert. Therefore, Rule 1(c) of Order 43 speaks about an appeal that may he preferred against an order passed under Order 9 Rule 9 for an order to set aside dismissal of a suit, whereas the provisioned of Order 43 Rule 1(d) speaks of an appeal that may be preferred against an order under Rule 13 of Order 9 of the Code rejecting application to set aside a decree passed expert. There cannot be any distinction in principle between the two clauses. When an appeal lies under Rule 1(d) from an order of dismissal of an application under Rule 13 of Order 9 for default, an appeal shall lie under Rule 1(d) and similarly, when an application is dismissed to restore a suit for setting aside an order of dismissal, an appeal lies under Order 43 Rule 1(c) of the Code. In the explanation to Section 141 CPC it is manifestly apparent that an application either under Rule 9 or Rule 13 of Order 9 of the Code does not relate to a suit but to a proceeding. Therefore, the application under Order 9 Rule 13 of the Code which was dismissed for default is a petition in the proceeding and cannot be treated as "suit". To restore the said petition, another petition under Order 9 Rule 9 of the Code is no doubt competent, but the dismissal order of the said petition cannot give any right to a party to prefer an appeal under Order 43 Rule 1(c) of the Code since it does not relate to the original suit, but it relates to the dismissal on a miscellaneous proceeding only. In interpreting the statute, effect must be given to the intention of the legislature and where the language is clear, effect must be given to it and the Court cannot substitute the language in different form what it is actually not, else it will amount to amending the law not permissible for the Court.

Now turning precisely to the main question that has been posed herein, I may sum up my conclusions as follows:

(1) When an application under Order 9 Rule 9 CPC is dismissed for default and/or on merits, an application lias under Order 9 Rule 9 read with Section 141 of the CPC for restoration of the former application, or

(2) The order of dismissal of the former application under Order 9 Rule 9 CPC is also appealable under Clause (c) of Rule 1 of Order 43 of the Code of Civil Procedure.

Both the remedies are concurrent and neither excludes the other. But the scope of each proceeding is however, different. and

(c) When an appeal is decided by the order of the Appellate Court in one way or other, the second application simultaneously filed under Order 9 Rule 9 for restoration of the first application becomes infructuous, But no appeal lies from an order rejecting an application under Order 9 Rule 9 preferred for restoration of earlier application filed under Order 9 Rule 13 of the Code which was dismissed for default. The reason being that the dismissal order passed under Order 9 Rule 9 of CPC praying for restoration of the earlier petition preferred for setting aside the decree passed in the suit is well covered under the explanation of the provisions of Section 141 of Code of Civil Procedure.

That being the position, I am of the opinion that the appeal preferred against the order of dismissal of a petition under Order 9 Rule 9 CPC either for default or on merits, which was filed for restoration of the earlier petition preferred under Order 9 Rule 13 of Code of Civil Procedure, an appeal is incompetent. The above view gets support from a full Bench decision of Madhya Pradesh High Court in a case reported in Kasturchand Chhotmal Vs. Kapurchand Kewalchand,

In the result, I hold that the learned Appellate Court below was correct is holding the appeal of the Petitioners was incompetent. Therefore, I see no ground for interference as regards the said findings of the court below. I am, therefore, constrained to hold that this petition bus no merit and is liable to be dismissed. Accordingly, the petition standi dismissed. The Rule is discharged. Parties to bear their own cost in this Court.