Hira Lal Jwala Sahai vs Sitla Kahna and Another

Chopra, J.—A money suit brought by the petnr. was dismissed for default on 21-7-2003. Next day an appln. for its restoration was presented which was also dismissed for non-prosecution on 1-11 2003. Another appln. for restoration of the previous appln. was made on 6-11-2003 but unfortunately the petnr. did not again put in his appearance on 28-10-2004 when this also was dismissed for default. A third appln. for the restoration of the second was put in the same day i.e., 29-10-2004 on the ground that the petnr. was present in the precincts of the Ct. but the case was called when he had gone out to attend to the call of nature. This last appln. was dismissed on merits by the trial Judge on 28-5-2006 an appeal against the order was filed in the Ct. of the Dist. J. who for various reasons declined to interfere. This petn. is directed against the order of the Dist. J.

It is not disputed before mo that on the dismissal for default of an appln. made under Order 9, Rule 9, Code of Civil Procedure, for restoring a suit dismissed for default an appln. to restore such appln. would also lie under Order 9, Rule 9 read with Section 141, CPC or u/s 151, Code of Civil Procedure, question that is seriously contested is whether and order rejecting an appln. for restoration of of an appln. to revive a suit dismissed for default is appealable. The learned Counsel for the resp urges that since no appeal lay to the Dist. J. this petn. is not competent. The Dist. J. was of the opinion that an appeal under the law was not permissible & yet he considered the case on merits & found that since sufficient cause for non-appearance had not been made out the appln. dismissed for default could not be restored.

Mr. Amar Nath, the learned Counsel for the petnr. contends that when an appln. for restoration of an appln. can be presented under Order 9, Rule 9 read with Section 141, Code of Civil Procedure, an order dismissing such appln. would be appealable under Order 43, Rule 1 Sub-clause (c), CPC the rule provides that an appeal shall lie from an order under Rule 9 of Order 9 rejecting an appln. to set aside the dismissal of a suit. He has cited AIR 1937 344 (Oudh) as an authority in support of his argument. The view taken by the Division Bench in this case, no doubt, supports his contention. But if I may be allowed to say with the greatest respect the reasoning adopted does not appear to me to be easily acceptable. All that was said to come to the conclusion was that if the aid of Section 141, CPC can be invoked to bring within the scope of Order 9, Rule 9, an appln. to restore to hearing a previous appln. for restoration which has been dismissed for default, it seems that that same section can be invoked to make appealable under Order 43(1)(c) the order which is passed upon such appln. The learned Judges do not appear to have appreciated the distinction between questions which are purely matters of procedure & those which relate to substantive rights. The right of appeal, however, is not merely a matter of procedure but one of substance, & I do not think it can arise by implication or by analogy without an express enactment creating that right. Section 141 only lays down that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable in all other proceedings in the Ct. This only prescribes the procedure that would be adopted by the civil Cts. in dealing with matters other than suits. In my opinion this by itself would not give a right of appeal to a party aggrieved by any order in the proceedings. Right of appeal against order is specifically given by Section 104, CPC Under this section an order will be appealable if an appeal is expressly allowed under the rules & it further enjoins that no other order would be appealable. The orders made appealable under the rules are enlisted in Order 43, Rule 1, CPC Sub-section (c) of this rule gives a right of a appeal from an order refusing to set aside the dismissal of a suit. It cannot be read so as to include an order dismissing an appln. for restoration of a suit dismissed for default. In Chandar Sahai Vs. Durga Prasad and Another, Sulaiman J. (as he then was) while refuting the argument that the right of appeal could be claimed by virtue of Section 141 of the CPC observed as follows:

An appeal lies from an order refusing to Bet aside an ex-parte decree, bat under the CPC no appeal is provided for from an order dismissing an appln. which is for restoration of an appln. for setting aside an ex-parte decree. Nor can a right of appeal be claimed by virtue of Section 141, Code of Civil Procedure, when Order 43 of the Code makes no provision for such an appeal.

A similar question was before a Division Bench of the Madras H.C. in Sadaya Padayachi and Another Vs. Chinnaswami Naidu, wherein it was held that no appeal lay from an order refusing to get aside an order of dismissal of an appln. for restoration of a suit dismissed for default. A different view taken by a Single Bench of Judicial Commissioner in Pandurang v. Krishan AIR 1923 Nag. 295 : 19 N.L.R. 79, was dissented from & overruled by a Division Bench of the same Ct. in Brij Mohan v. Raghoba AIR 1932 Nag. 101 : 28 N.L.R. 83 , & it was held that Section 141 cannot be interpreted as giving a substantive right to make the order appealable. The reasoning & the decision in AIR 1937 344 (Oudh) was not looked upon with approval by Rajadhyaksha J. in Kalookhan Fazledin Vs. Surji Vallabhdas, & it was found that:

No appeal lies against the dismissal of an appln. for restoring to file an appln. which was dismissed for default & which was itself filed for restoring to file a suit which was also dismissed for default.

Lok Nath v. Mt. Sattan Bai AIR 1923 Lah. 302 : 73 I.C. 821 and Hara Kumar Mitter Vs. Murari Mohan Bose and Others, are other authorities on the point in which a similar view was taken. The consensus of opinion appears to be against the view adopted in AIR 1937 344 (Oudh) I would, therefore, hold that the appeal before the Dist. J. was not competent.

On merits also I do not see any force in this petn. which, otherwise, I might have allowed to be considered as a revision against the order of the trial Ct. The petnr. appears to be in the habit of being negligent in the prosecution of his case, The suit was dismissed because he came late. The appln. for revival of the suit was dismissed because there was a misunderstanding regarding the date fixed. The next appln. was dismissed for default because the appet. had gone out to attend the call of nature. I have no hesitation to agree with the Diet. J. that sufficient cause for non-appearance of the petnr. had not been made out.

The petn. is dismissed with costs. Counsel fee would be Rs. 20.