Pooranchand vs Kamalchand

Tare, J.—This case involves an important question as to what the period of limitation is for an application restoration of the restoration application, which itself is dismissed in default.

The facts necessary for the dicision of the question are as follows:-

The petitioner''s suit was dismissed in default on 22-4-1959. On the same day he filed an application for restoration of the suit to file. That was registered as Miscellaneous Judicial Case No. 3 of 1959. That restoration application itself came to be dismissed in default on 3-9-1959. Thereafter, an application for restoration of the restoration application was filed on 30-11-1959. That was registered as Miscellaneous Judicial Case No. 31 of 1960.

The learned Judge of the trial Court was of opinion that there was sufficient cause for the plaintiff''s absence on 3-9-1959. The said finding being one of fact, this Court would not re-examine it in the absence of any illegality. Moreover, the learned counsel for the respondent did not make an attempt to challenge the same. The petitioner''s application for restoration of the restoration application filed on 30-11-1959 was dismissed solely on the ground of limitation. The trial Judge relied on a Division Bench case of the Allahabad High Court, namely, Pitambarlal Vs. Dodi Singh. ILR 46 All 319.

The learned Judges of the Allahabad High Court constituting the Division Bench in the said case were not specifically required to decide the question of limitation, as it is involved in the present case. The learned Judges, however, observed that an application for restoration of the restoration application could itself be treated as an application for restoration of the suit. In their opinion such an application would be a second application for restoration of the suit. It was from that point of view that the Division Bench assumed that Article 163 of Schedule 1 of the Limitation Act will be applicable to such a case.

The learned counsel for the petitioner, however, urged that it has been the view for this Court that an application for restoration of the restoration application would be tenable by invoking the inherent powers of the Court u/s 151 of the Civil Procedure Code. That was the opinion expressed by a Division Bench of the Nagpur Judicial Commissioner''s Court consisting of Jackson J. C. and Niyogi A.J.C. in Brijmohan and others vs. Raghoba 28 NLR 83. Following that view, Bobde J. in Premshankar vs. Rampyarelal and others ILR 1944 Nag. 558 held that such an application would be tenable by invoking inherent powers of the Court. However, the question of limitation was not directly involved in the said cases.

In another case decided by Bobde J. in Goverdhan vs. Hemrajsingh and others ILR 1944 Nag. 408 the question was as to under what provision of the CPC an application for restoration of the suit dismissed in default lie. The said suit had been stayed by an order passed u/s 10 of the Civil Procedure Code. Bobde J. opined that Order 9 was inapplicable and that the Court could restore the suit in exercise of its inherent powers. That case also did not directly involve the question of limitation.

The learned counsel for the petitioner, inviting attention to the observations of Lodge J. in Gopal Laskar Vs. Harihar Mukherjee and Others, urged that the learned Judge had applied Article 181 of Schedule 1 of the Limitation Act to a case of restitution which was being done in exercise of inherent powers. Even so that case would not solve the question involved in the present case.

The learned counsel for the petitioner further urged that Article 163 of Schedule 1 of the Limitation Act will not be applicable to an application for restoration of the restoration application, as such an application is not contemplated by the wording of the said Article. Therefore, it was suggested that the said Article will be confined to the applications for restoration of stilts only. It was further urged that as no specific article was applicable to such an application, the matter would be governed by Article 181 of Schedule 1 of the Limitation Act, which is the residuary Article applicable to all other applications for which no specific period of limitation is provided for.

The learned counsel for the respondent on the other hand, urged that even if it were to be assumed that an application for restoration application could be maintainable u/s 151 of the Civil Procedure Code, the matter cannot be left to the whim of an individual litigant by allowing him three years time to apply for restoration of the restoration application dismissed in default. The learned counsel suggested that the rule should be one of due diligence and any inordinate delay ought to be looked upon with disfavour, as the Court would only be exercising its inherent powers and in such matters the Court ought to exercise its discretion judicially by insisting on the rule of due diligence.

However, this does not mean a concession on the part of the learned counsel for the respondent, who urged that the view of Allahabad High Court in Pitambar Lal vs. Dodi, Singh (supra), was the only correct view to be accepted.

As this is an important question, which may affect a number of cases on the point and as there is no authoritative decision of this Court on the point, nor was any decision of any other High Court directly on the point brought to my notice, I think that, this important question ought to be decided by a Division Bench. Therefore, I direct that the papers of this case be laid before my Lord the Chief Justice to consider the desirability of constituting a Division Bench to consider the question which has already been mentioned in the beginning.

ORDER

Dixit C. J.-1. This matter comes up be fore us on a reference by our learned brother Tare J. for decision on the question as to the period of limitation for an application for restoration of an application under O. 9 R. 9 C. P. C. which itself has been dismissed in default.

The petitioner Pooranchand''s suit was dismissed for default in appearance under O. 9. R. 8 C. P. C. He then filed an application under Rule 9 for restoration. This application for restoration was itself dismissed for default of appearance on 3rd September 1959. Thereupon on 30th November 1959 the petitioner made an application for setting aside the dismissal of his application for restoration. This application was rejected by the trial Court on the ground of limitation relying on Pitamberlal vs. Dodi Singh I. L. R. 46 All 319. In the Allahabad case it was held that an application for setting aside the dismisal in default of an application for restoration under O. 9 R. 9 could itself be treated as an application for restoration of the suit and would be governed by Article 163 of the Limitation Act.

From what the learned Judge has said in the order of reference, it appears that before him it was not disputed that an application for setting aside the dismissal in default of an application for restoration under O. 9 R. 9 was competent u/s 151 C. P. C. The controversy centred round the question as to whether an application for invoking the inherent powers of the Court u/s 151 was governed by Article 163 of by Article 181 of the Limitation Act. The learned Single Judge thought it necessary to make this reference, as in his opinion, the question was of frequent occurrence and was not covered by any decision of this Court of any other High Court.

Before answering the question as regards limitation posed by the learned Single Judge, it is necessary to determine the provision under which as application for setting aside the dismissal for default of an application for restoration under O. 9. R. 9 C. P. C. is maintainable. In Brijmohan vs. Raghoba 28 N. L. R. 83, it has been held by a Division Bench of the Nagpur Judicial Commissioner''s Court that no appeal lies from an order rejecting an application to set aside the dismissal for default of an application for restoration of a suit dismissed in default, and that the dismissal of such an application can be set aside u/s 151. The learned Judges based this conclusion on the reasoning that Section 104(1) (i) and O. 43 R. 1 C. P. C. did not provide for an appeal against an order of dismissal for default of an application for restoration of a suit under O. 9. R. 9; that the right of appeal being a substantive right could not be inferred by the application of Section 141 which only made the procedure in the Code applicable, in so far as it could be, in all proceedings in any court of civil jurisdiction and did not give any substantive right; and that, therefore, an order of dismissal for default of an application for restoration of a suit under O. 9 R. 9 was not applicable under O. 43 R. 1(c). On the same reasoning the learned Judges treating the remedy under O. 9 R. 9 as a substantive one held that it was not available by resorting to Section 141 CPC., for setting aside the dismissal in default of an application for restoration of a suit under O. 9 R. 9. This decision was followed by a Single Judge of the Nagpur High Court in Prem Shankar vs. Rampyarelal ILR 1944 Nag. 558.

We entirely agree with the view expressed in Brij Mohan vs. Raghuba. (supra) O. 9 in terms applies only to suits. The remedy under O. 9, R. 9 C. P. C. is not a matter, of procedure (See Sitaram vs. Buburao 1953 N. L. J. 144. The rule gives a substantive right of applying for restoration of a suit dismissed for default and this right cannot be conferred by Section 141 when it is made applicable to proceedings initiated on an application for setting aside the dismissal in default of an application for restoration of a suit under O. 9 R. 9 C. P. C. Section 141 deals only with procedure and not with any substantive right. It does no more than provide the procedure to be adopted by Courts of Civil jurisdiction is dealing with matters a before them. It does not provide that the Code is to be applied in its entirety to such proceedings so as to confer the right of appeal or any other substantive right in those proceedings. O. 9 R. 9 cannot, therefore, be invoked for setting aside the dismissal in default of an application for restoration of a suit under that Rule. On the same principle an order dismissing in default an application for restoration of a suit under: O. 9 R. 9 is not open to appeal under O. 43 R. 1 (c). The dismissal of such an application for default is in the exercise of the inherent powers of the Court. That being so, the dismissal can be set aside by the exercise of the same inherent powers. It seems to us unnecessary to examine some decisions in which it has been held that an appeal lies under O. 43 R. 1 (c) from an order rejecting for default an application under Rule 9, [see Doma Choudhary and Others Vs. Ram Naresh Lal and Others, and cases noted in Chitale''s Civil Procedure Code, Volume II, under note (2) to O. 9 (General)]. These decisions and others making O.9 R. 9 applicable for setting aside an order rejecting, for default an application for restoration of a suit under O. 9 R. 9 C. P. C. overlook the position that when an appeal is preferred against an order rejecting for default an application under Rule 9 for the restoration of a suit, the appeal is not against the order to set aside the dismissal of a suit within the meaning of O. 43 R. 1 (c), that Section 141 deals with procedure alone and not with any substantive rights, and that the remedy under O. 9, R. 9 C. P. C. is not a matter of procedure but is a substantive right.

Shri Verma, learned counsel appearing for the opponent, said that in Brijmohan vs Raghubha (supra), a doubt was expressed as to whether an application for setting aside the dismissal for default of an application to restore a suit under O. 9 R. 9, C P.C. was maintainable u/s 151 C.P.C. We do not find any such doubt expressed, in the opinion delivered by the learned Judges in Briijmohan''s case (supra). The doubt that was expressed by Niyogi A. J. C., was on the question whether an application to set aside the dismissal of an application for restoration of a suit dismissed for default could be regarded as an ''origional matter'' to which Section 141 C. P. C. could be applied. But the learned Judges were emphatic on the point that even if Section 141 were to be made applicable to cases of applications to set aside the dismissal of an application for restoration of a suit dismissed in default, that would not give the substantive right of making an application for restoration under O 9, R. 9, and that in the absence of any express provision in the Code the right to make such applications is implied in Section 151.

Now, if as we think, the dismissal in default of an application for the restoration of a suit under O. 9, R. 9 C. P. C. can be set aside by resort to Section 151 C. P. C., then there is no question of any limitation for an application made to invoke the inherent powers of the Court. Section 151 does not deal with any applications nor does it lay down procedure for any application It is a provision recognising the inherent power of the Court to act ex debito justitiae. An application invoking this power is not one which a party is required to make under any provisions of the Code for setting in motion any machinery of the Court. Therefore it is not governed by Article 181 or any other Article of the Limitation Act. As has been held by the Supreme Court in Sha Mulchand and Co. Ltd. (In Liquidation) Vs. Jawahar Mills Ltd., Article 181 governs only the applications under the CPC and has to be read as if the words ''under the Code'' were added in the first column of the Article. It follows therefore that the application contemplated by Article 181 is one which party has to make for the machinery of the Court to be set in motion under the provisions of the Code and the application has to be made within three years from the date when the right to apply accrues.

Learned counsel for the opponent said that an application invoking the inherent powers u/s 151 would be subject to the limitation prescribed by Article 163 of the Limitation Act. We do not agree. As an application made to invoke the inherent powers of the Court u/s 151 is not an application under the Code which a party is required to make, Article 163 has no applicability. That apart, reading Articles 163 and 164 together it is clear that Article 163 prescribes limitation for an application to set aside the dismissal for default of a suit and not for an application to set aside the dismissal for default of an application for restoration of a suit under O. 9, R, 9 CPC. The view that an application invoking the inherent powers of the Court u/s 151 CPC is not governed by Article 181 or any other Article of the Limitation Act is fortified by the decisions in Goverdhan vs. Hemrajsingh ILR 1944 Nag 408; Annada Prasad Mitra Vs. Sushil Kumar Mandal, and Bhuyan Shyam Sunder Mohapatra and Another Vs. Ch. Nilakantha Das and Others, . Though there is no limitation for invoking the inherent powers of the court u/s 151, the party invoking that jurisdistion must be diligent and not guilty of latches. 9. For all these reasons, our answer to the question referred to by the learned Single Judge is that the dismissal for default of an application for restoration of a suit under O. R. 9 CPC can be set aside in exercise of the inherent powers of the Court u/s 151 CPC and that the exercise of inherent powers is not fettered by any rule of limitation.