Haridas Das vs Smt. Santa Rani Das and others

D.N. Baruah, J.—This Civil Revision is directed against the judgment and order dated 19.4.1991 passed by the learned District Judge, Karimganj in Misc. Appeal No. 4/90 dismissing the appeal and affirming the order dated 12.4.1989 passed by the Munsiff No. 2, Karimganj, in Misc. Case No. 147/88 declining to restore the Title Suit No. 201 of 1985,

The petitioner filed a Title Suit in the Court of Munsiff No. 1, Karimganj, against Kalipada Das (since deceased). The Predecessors-in-interest are the Opposite Parties. The said Title Suit was dismissed for default on 11.12.1985. On 20.12.1985 the petitioner filed a petition under Order 9, Rule 9 read with section 151 of the CPC for restoration of the suit. This petition was registered as Misc. Case No. 88/85. This petition was also dismissed for default on 27.7.1987. Against the order of dismissal, the petitioner instead of filing an appeal, filed yet another petition in the Court of the Munsiff No. 2, Karimganj under Order 9, Rule 9 of the CPC and this petition was registered and numbered as Miscellaneous Case No. 81/87. This Miscellaneous case also dismissed for default on 17,11.1988. Against this order of dismissal, the petitioner filed another Miscellaneous Case No. 147/88 in the Court of Munsiff No. 2, for setting aside the order of dismissal dated 17,11,1988. by order dated 12.4. 1989, the learned Munsiff No. 2 dismissed the said Miscellaneous case also. Against that order of dismissal, a Miscellaneous Appeal was filed before the learned District Judge, Karimganj. This appeal was numbered and registered as Miscellaneous Appeal No. 4/90.

The learned District Judge, after considering the submissions made by the petitioner and on perusal of the records, dismissed the appeal holding that the appeal had no merit and thereby affirmed the order passed by the learned Munsiff No. 2, Karimganj.

The petitioner has come before this Court invoking the power u/s 115 of the CPC against the judgment dated 19.4.1991 passed by the District Judge. Karimganj,

I have heard the Learned Counsel for both the parties. The Learned Counsel for the petitioner urged that the learned District Judge committed illegality and with material irregularity in exercise of his jurisdiction by dismissing the appeal. He also urged that there was sufficient cause which prevented the petitioner in appearing on the date of hearing of the suit and subsequent Miscellaneous cases.

Before entering into the merit of the case, it is to be seen whether the appeal lies under Rule 43 (1) (c) of the CPC against the dismissal of petition filed under Order 9, Rule 9, to restore another petition under Order 9, Rule 9 of CPC for restoration of a suit which was dismissed for default.

Now the main question is when an application under Order 9, Rule 9 of the CPC is dismissed for default another application can be filed under the said provision and whether the provision of Order 9, Rule 9 is applicable in the subsequent petition to restore the petition under Order 9, Rule 9 of the Civil Procedure Code, dismissed for default. On the dismissal of the suit as per Rule 9, Order 9, the plaintiff can file application for restoration of the suit. If the said application is also dismissed for default, the plaintiff may file another petition for restoration of the said application under the provisions of Order 9, Rule 9 of the Code of Civil Procedure, as the said application also comes within the purview of Rule 9, Order 9 in view of section 141 of Code of Civil Procedure. Now it is to be seen that whether an appeal will lie under Order 43, Rule 1(c) of the CPC when the second petition for restoration of the earlier petition filed under Order 9, Rule 9 to restore a suit which was dismissed either by default of on merit. The second petition which was filed for restoration of an earlier petition was not to set aside the dismissal of a suit, it was only for an order to set aside the dismissal of an application.

Therefore, when an application under Order 9, Rule 9 of CPC is itself dismissed for default, it is apparent that an application lies under Order 9, Rule 9 read with Section 141 of the CPC for restoration of the said application. This is clear from the provision laid down u/s 141 of the Civil Procedure Code. In order to succeed this second petition, the petitioner has to satisfy the court that he was prevented by sufficient cause from appearing on the date, when the application was called on for hearing.

The order of dismissal for default of the application is appealable under Clause (c) of Rule 1 of Order 43 of the Civil Procedure Code. Both the remedies by way of application under Order 9, Rule 9, and the appeal under Order 43, Rule 1 (c) are concurrent. They can be resorted simultaneously. Neither excludes the other. The scope of each of the above proceedings are different. When an appeal is decided, one way or the other, the order of dismissal for default appealed from gets merged in the order of the appellate court, and there (sic) the applications filed under Order 9, Rule 9 becomes infructutous. But no appeal lies from an order rejecting the application under Order 9, Rule 9 filed for restoration of the earlier application under Order 9, Rule 9, which was dismissed for default.

It is now settled that as per provision of section 141 of the Civil Procedure Code, an application under the provision of Order 9, Rule 9 for restoration of an earlier application filed for restoration of a suit is maintainable. But, as stated above, any order passed in the second petition is not appealable under the provision of Order 43, Rule 1 (c), in asmuch as, the second petition is not for restoration of a suit, but for restoration of an application filed under Order 9, Rule 9 of the Civil Procedure Code.

In the instant case, when the first application filed under Order 9, Rule 9 was dismissed for default, the petitioner had two avenues available, one of prefer an appeal under order 43, Rule 1 (c) and another an application under Order 9, Rule 9 for restoration of the earlier application. The petitioner chose the second remedy and filed an application for restoration of the earlier application invoking the power under Order 9, Rule 9 of the Civil Procedure Code, which was also dismissed. Thereafter, another application was filed for restoration of the said application, which was dismissed on contest. After the said order of dismissal of the third petition, the petitioner preferred an appeal.

In my view, the appeal itself was not maintainable as per provision of Order 9, Rule 9 read with section 141 of the Civil Procedure Code. That being the position, I am constrained to hold that the appeal itself was not maintainable. Therefore, without going into the merit of the case, I dismiss the petition, inasmuch as there is nothing to show that learned District Judge committed any illegality and with material irregularity In exercise of his jurisdiction.

Therefore, the petition deserves dismissal, which I accordingly do

In view of the facts and circumstances of the case, I make not order as to costs.