Siban Mahto vs Ramdhani Singh and Another

N.L. Untwalia, J.—The plaintiff-petitioner filed Title Suit No. 846 of 1966 in the court below. It was dismissed for default on 8-1-1968 in absence of both parties. The dismissal, therefore, was under Order 9, Rule 3 of the CPC (hereinafter to be referred to as ''the Code''). Although the order expressly said that the dismissal was under Order 17, Rule 2 of the Code, Order 17, Rule 2 of the Code itself specifically refers to dealing with such matter in accordance with Order 9 of the Code. Thereafter, on 23-1-1968, the plaintiff filed an application for restoration of the suit. The application must be in accordance with Rule 4 of Order 9 of the Code. This application has been dismissed by the court below on two grounds; (i) that it is barred by limitation and (ii) that it is not maintainable as the petitioner had other remedies available under the Code of Civil Procedure. The learned Additional Munsif has not entered into merits of the petitioner''s case as to whether he has made out sufficient cause for restoration of his miscellaneous case filed under Rule 4 of Order 9 of the Code. The plaintiff has come up in revision.

On both the points the learned Additional Munsif had committed errors of law and thereby had refused to exercise jurisdiction vested in him. Article 122 of the Limitation Act, 1963 runs as follows :--

Description of application Period of limitation Time from which period begins to run

To restore a suitor appeal orapplication for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs.

Thirty days The date of dismissal

The application filed on 23-1-1968 under Order 9, Rule 4 of the Code, undoubtedly, was governed by this Article and it was filed within 30 days because this was an application to restore the suit dismissed for default. But the application filed u/s 151 of the Code for restoration of that application is not covered by Article 122 nor is it covered by any other Article except the residuary Article 137 for which a period of three years is provided. The application, therefore, filed on 15-6-1968 for restoration of the miscellaneous case which was dismissed for default on 11-5-1968 was not barred by limitation and this is an error of jurisdiction (Vide Dwarka Prasad and Another Vs. Union of India(UOI), .

The second view of the learned Additional Munsif is also erroneous in view of my decision in Chandrika Singh Vs. Parsidh Narayan Singh and Others, . Mr. S. C. Mishra, learned counsel for the Opposite Party has submitted that the said decision requires reconsideration. Firstly, I may state here that I have referred two cases for decision by the Division Bench on the question as to whether the Full Bench decision of this Court in Doma Choudhary and Others Vs. Ram Naresh Lal and Others, is still a good law in view of the two decisions of the Supreme Court in Mahanth Ram Das Vs. Ganga Das, and in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, . But that apart, I pointed out in Chandrika Singh''s case that there is no provision in the Code for dealing with an application under Order 9, Rule 4 of the Code either dismissed on merit or for default and in neither view of the matter, an appeal lies under Order 43. Rule 1 of the Code. That being so, the ratio of the Full Bench decision does not apply to such a case. Merely because there is no bar to the institution of a fresh suit in regard to a suit dismissed for default under Rule 3 of Order 9 of the Code, it cannot be said that there is any specific provision in the Code which gives any remedy to the person whose application under Order 9, Rule 4 of the Code has been dismissed for default. In that view of the matter, I had said that a restoration application invoking inherent jurisdiction of the Court is maintainable. I think, no infirmity could be pointed out to me on any ground of substance to shake my view expressed in Chandrika Singh Vs. Parsidh Narayan Singh and Others, . Since the court below has not gone into the question as to whether sufficient cause has been made out by the petitioner for restoration of his miscellaneous case filed under Order 9, Rule 4 of the Code, the case has to go back to that court.

The civil revision application is, accordingly, allowed, the order of the court below dated 7-3-1970 is set aside and it is directed to dispose of the application filed by the petitioner u/s 151 of the Code on 15-6-1968 in accordance with law on merits. There will be no order as to costs.