Showkat Ahmad Bhat vs Centre of Electronics and others

1, This revision is directed against the order dated 2372003 passed by Munsiff / SubRegistrar, Srinagar dismissing the application for condonation

of delay in filing restoration application.

2, The brief facts of the case are that the petitioner herein had filed a suit for declaration and injunction in the trial court. Along side the suit, he had

also filed an application for grant of interim relief. The application for interim relief was disposed of by the trial court vide order dated 2432001

after hearing the parties. Aggrieved by the said order, the petitioner herein filed civil miscellaneous appeal in the court of Pr. District Judge.

Srinagar, which was dismissed vide order dated 7112002. When file was received back by the trial court from the first appellate court on

20112002, it was required to summon the parties before proceeding further in the matter as the first appellate court had not fixed any date for

appearance of parties before the trial court. The trial court instead of putting the parties to notice recorded the following order:

Received today 20 Nov. 2002. Be consigned to records after its due completion as nobody appears to prosecute the same.

3, Petitioner thereafter moved an application for restoration of the suit on 30.4.2003. Since the application for restoration was time barred, he also

filed application for condonation of delay which was dismissed vide the impugned order, resulting in the dismissal of restoration application as being

time barred.

Heard learned counsel for the parties and perused the record.

4, Learned counsel for the respondents submitted that the revision petition is not maintainable for the reason that impugned order is appealable in

terms of order XLIII CPC. Learned counsel for the petitioner vehemently argued that the impugned order is not appealable but is revisablc. It is

relevant to reproduce Order 9 Rule 3 and 4 of the Code of Civil Procedure (for short hereinafter CPC).

Where neither party appears, suit to be dismissed. Where neither party appears when the suit is called on for hearing, the Court, may make an

order that the suit be dismissed.

Plain tiff may bring fresh suit or Court may restore suit to file. Where a suit is dismissed under rule 2 or rule 3, the plaintiff may, subject to the law

of limitation, bring a fresh suit: or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for

such failure as is referred to in rule, or for his nonappearance, as the case may be, the Court shall make an order setting aside the dismissal and

shall appoint a day for proceeding with the suit.

5, Order 9 rule 3 of the CPC provides that where neither party appears when the suit is called, the suit may be dismissed. Order 9 rule 4 of CPC,

however, provides how to restore the suit which is dismissed in terms of rule 3 order 9 CPC.

6, It is also important to reproduce rule 8 and 9 of order 9 CPC:

Procedure where defendant only appears. Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing,

the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof in which case the Court shall pass

the decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so for as it relates

to the remainder.

Decree against plaintiff by defendant bars fresh suit. Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from

bringing afresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that

there was sufficient cause for his nonappearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal

upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

7, Rule 9 of Order 9 CPC mandates that where a suit is wholly or partly dismissed under rule 8 of Order 9 CPC, the plaintiff is precluded from

filing a fresh suit in respect of same of action, but he may apply for an order to set the dismissal aside and if he satisfies the court that there was

sufficient cause for his nonappearance, when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such

terms as to costs or otherwise as it thinks fit.

8, Here in the case at hand, it is borne out from the record that when the file was returned back from the first appellate court, it was mandatory for

the trial court to summon the parties before proceeding further as the appellate court had not fixed any date in the case for appearance of parties.

The trial court after receiving the file, on 20112002 recorded the order referred to above. Applying the test in this case, it is crystal clear that order

of dismissal dated 20112002 came to be passed in absence of parties and thus it squarely falls within the ambit of Order 9 Rule 3 CPC.

9, Order XLII1 CPC provides against which order appeal will lie. It is profitable to reproduce subrule (c) of Rule 1 Order XLHI CPC:

an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit.

10, Sub rule (c) rule 1 order 43 CPC provides that when an application is rejected in terms or order 9 rule 9 CPC, the order of rejection of

application is appealable. Order 43 CPC nowhere mandates that an appeal will lie from an order which is passed in terms of order 9 rule 4 CPC

whereby the application is granted or rejected.

11, In the given circumstances, the impugned order dismissing the condonation application is not an appealable as per the mandate of order XLIII

CPC but is revisable.

12, The trial court dismissed the application for condonation on merits in absence of the parties which is uncalled for. Thus the order impugned is

illegal, erroneous and has caused miscarriage of justice.

13, It is useful to notice here that the trial court vide order dated 20112002 has not dismissed the suit in default but has casually and mechanically

consigned it to records, it appears that while passing order the trial court has lost sight of the said fact.

14, For the foregoing reasons, this revision is allowed and the impugned order is set aside. The application for condonation of delay along with the

restoration application shall come up for consideration before the 3rd Additional Munsiff. Srinagar for disposal in accordance with law. Parties to

appear before the trial COM n on 1542006.