Ram Reddy and Another vs Yenka Reddy

Bilgrami, J.—This petition in revision is directed against order of the Subordinate Judge of Gulbarga dated 21-6-1955 restoring the suit of the Plaintiff- Respondent which was dismissed for default on (sic)-3-1952. The application for restoration in this se was not filed till 29-4-1952, i.e. 29 days beyond time fixed for a restoration petition. The Court below was of opinion that sufficient reasons existed for condoning the lay and restored the suit; hence this revision.

It is argued on behalf of the revision Petitioner by the learned Counsel, Shri Aliuddin Ansari, that Section 5, Limitation Act is not applicable to restoration applications under Order 9, Rule 8 of the present Code and the order under revision is therefore invalid and must be set aside. The facts of this case are as follows: the case had come up in appeal before the High Court, and was remanded from here to the trial Court on 30-11-1951. On that day, notices which were sent to the parties by the Court of first instance were returned unserved.

The Court directed that further summons be issued and posted the case to 31-12-1951. On this date also summonses were not served. The case was accordingly adjourned to 1-2-1952 and then to 1-3-1952. On that date although the summons was not served on- the Plaintiff, the Court dismissed the suit for default holding that the parties are negligent, they should have appeared in Court of their own accord and got the inquiry completed.

Shri Aliuddin Ansari, the the learned advocate of the revision Petitioner urges, that the petition was time-barred and the Court below has erred in condoning the delay. Section 5, Limitation Act, he submits, is not applicable to restoration applications. He relies on the Pull Bench case of this Court in Bala Venkatappayya v. Rawla Beradu 1348 Nazair-e-Osmania 58(A), and Ajodhya Mahton and Another Vs. Musammat Phul Kuer, and Shaik Yaruddin v. B. Das, 1946 Pat. 165 (AIR v. 33) (C).

Shri Abdulla Timmapuri in reply argues that there can be no dismissal for default under Order 9, Rule 3 when the Plaintiff is not aware of the date and when either no date is fixed or if it is fixed it was not notified to him. Order 9, Rule 3, he contends, contemplates a default when the Plaintiff is aware of the date. He relies on Mt. Zainab Bibi v. Beharilal (AIR 1935 Pesh. 180 v. 22) (D) and Rahimuddin Shaik v. Shaik v. sarifunnisa (AIR 1954 Gau 92 (E).

The case in 1348 Nazair-e-Osmania 58(A) is an authority for the proposition that in seeking, remedy what has to be seen is the form of the order passed and not what order ought to have been passed. We do not dispute this point. In the present case, the Plaintiff has applied for restoration which was a correct remedy considering the nature of the order. This ruling therefore does not help the contention of the learned advocate.

We do not dispute the proposition laid down in Ajodhya Mahton and Another Vs. Musammat Phul Kuer, , that Section 151, CPC has no application where there is specific provision. An order of dismissal of a suit for default of appearance is made under Rule 3, 8 and 12 of Order 9 Code of Civil Procedure.

Rule 3 provides that if neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. Rule 4 of the said order empowers the Plaintiff in such case to apply to have the dismissal set aside. Rule 8 provides that where the Defendant appears, but the Plaintiff does not appear, the Court shall make an order that the suit be dismissed, and Rule 9 empowers the Plaintiff in such a case to apply to; have the order of dismissal set aside.

Rule 12 provides that where a Plaintiff or Defendant who has been ordered to appear in person or show sufficient cause to the satisfaction of the Court, fails so to appear, he shall be subject to all the provisions of the previous rules applicable to Plaintiffs and Defendants respectively. Rules 8 and 12 are not applicable to the present case as both parties were absent. The rule which appears to be applicable in this case is Rule 3 which is to the following effect:

Where neither party appears when the suit is celled on for hearing, the Court may make an order that the suit be dismissed.

This rule contemplates a default by the Plaintiff when the suit is called on for hearing. The suit could only be called on for hearing under this rule when parties have notice of the hearing. In the present case admittedly parties were not served, as such it cannot be said that the Plaintiff had notice of the hearing. The dismissal therefore cannot be deemed to be under Order 9, Rule 3. In the result, Order 9, Rule 9 would also not become applicable.

Article 163, Limitation Act which prescribes limitation for an application to set aside the order of dismissal also contemplates default of the Plaintiff''s appearance and where no notice was served, it cannot be said that there was any default of the Plaintiff to appear within the said Article. An application to set aside the order of dismissal in such cases would be u/s 151, Code of Civil Procedure, and would be governed by Article 181, Limitation Act.

Similar view has been taken in the cases in (AIR 1935 Pesh. 186 v. 22)(D) and (AIR 1954 Gau 92 v. 41) (E). In the former case Zainab Bibi v. Beharilal (D) the file of the case was sent to another, Court and the Plaintiff was not notified. The Court dismissed the suit for default. The Plaintiff filed a restoration petition. It was held that Order 9, Rule 3 was not applicable and that Section 151, CPC applied.

It was further held that Article 163, Limitation Act was not applicable but Article 181 of the Act was applicable. In the latter case Rahimuddin Shaik v. Sarifanesa(E) the date of hearing was not fixed. It was held that against an order of dismissal of this kind, if an application for restoration was filed Article 181, Limitation Act would apply and not Article 163.

In this view of the matter, we must agree with the conclusion arrived at by the Court below though we are not in agreement with the reasoning on which the order is based. In the result, this revision petition is dismissed with costs.