Subodhchandra Champaklal Mehta vs Keshavlal Jeshingbhai Patel

S.B. Majmudar, J.—This petition u/s 115 of the Code of the Civil Procedure has a chequered history and consequently all the relevant facts leading to this petition deserve to be noted in details at the outset. The petitioner is the original plaintiff and opponent is the original defendant in Special Civil Suit No. 194 of 1971 filed by the petitioner in the Court of learned Civil Judge Senior Division, Baroda. The suit was filed on 4-10-1971. In the said suit, the plaintiff prayed for a decree of Rs. 12,614/- with interest and cost against the opponent -defendant on the ground that this amount was due and payable to the plaintiff on account of the goods sold by him to the defendant on credit after deducting the payment received by him pursuant to the said dealings. This suit was resisted by the defendant by filing a written-statement Exh. 19 on 18-6-1973. The learned Trial Judge framed issues in the light of the pleadings. Thereafter, further progress of the suit got thwarted because of within subsequent events which will have to be noticed now. The suit was posted for hearing before the learned Trial Judge on 28-8-1975. On that day, the petitioner-plaintiff did not remain present. Therefore, the suit was dismissed for default. That resulted in Misc. Civil Application No. 425 of 1975 filed by the petitioner-plaintiff for restoration of the suit dismissed for default. That may be styled as Restoration Application No. 1. This application was processed and was being considered on merits by the learned Trial Judge. However, even that application got dismissed for default on 29-1-1979 on account of the absence of the plaintiff. Thus, ended the proceedings in the first Restoration Application. Then followed next Restoration Application being Misc. Civil Application No. 31 of 1979 by the petitioner. That may be styled as Restoration Application No. 2. It was for setting aside the dismissal for default order passed in the previous Misc. Civil Application-Restoration Application No. 1. Thus, in short, Restoration Application No. 2 sought the intervention of the Court for restoration of Restoration Application No. 1. Restoration Application No. 2 also met with the same fate and got dismissed for default on account of the absence of the petitioner on 9-2-1981. Not deterred by the said sequences, of bad fate, the petitioner-plaintiff moved third Restoration Application being Misc. Civil Application No. 39 of 1981. It is this Restoration Application No. 3 for Restoration of earlier Restoration Application No. 2 which came to be dismissed by the learned Trial Judge on hearing the parties on 12-11-1982. The learned Trial Judge did not decide the Restoration Application No. 3 on merits, but took the view that such successive restoration applications are not maintainable for restoration of prior restoration applications and consequently the third restoration application was dismissed as not maintainable. This order of the learned Trial Judge has been brought in challenge in the present proceedings u/s 115 of the Civil Procedure Code.

Mr. Amin, the Learned Counsel for the petitioner-plaintiff placing strong reliance on the explanation to Section 141 of the CPC as introduced by the Legislature by Amending Act of 1976, submitted that restoration applications themselves attract the procedure of the suit and will have to be treated for the purpose as suits. Section 141 alongwith explanation read as under:

Section 141:

The procedure provided in this Code in regard to suits shall be followed, as tar as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

Explanation:

In this section, the expression ''proceedings'' includes proceedings under Order IX but does not include any proceeding under Article 226 of the Constitution of India.

In view of this explanation, it is obvious that any proceedings under Order IX will be treated as a suit for the purpose of the procedure to be applied to such an application. It must be kept in view that so far as the first restoration application being Misc. Civil Application No. 425 of 1975 was concerned, it clearly fell within the provisions of Order IX Rule 9 of CPC as by that application, the petitioner-plaintiff wanted the Court to set aside the dismissal of the suit on the sufficient ground stated by him in the application. Moment the first restoration application fell within Order IX Rule 9 of the Civil Procedure Code, it attracted the procedure of a suit by virtue of explanation to Section 141 of the Civil Procedure Code. Moment that happened, when that application got dismissed for default on 29-1-1979, it in its turn, got attracted the provisions of Order IX Rule 9 by virtue of the fact that first restoration application had already attracted the procedure of suit. Thus, the second restoration application being Misc. Civil Application No. 39 of 1975 moved by the petitioner-plaintiff for restoration of the earlier restoration application being Misc. Civil Application No. 425 of 1975 got covered by Order IX Rule 9. Moment that happened, the procedure of suit became applicable even to second restoration application by combined reading of Order IX Rule 9 and explanation to Section 141 of the Civil Procedure Code. When that second restoration application got dismissed on 9-2-1981 for default, treating the second restoration application as a suit for the procedure of Order IX, the third restoration application being Misc. Civil Application No. 39 of 1981 i.e. the pressent restoration application from which the proceedings arise before me also attracted the provisions of Order IX Rule 9 read with explanation to Section 141 of the Civil Procedure Code. Consequently, it could not be said that the third restoration application was not maintainable at all. May be on merits, the learned Trial Judge could have come to his own conclusion whether there was sufficient cause for the petitioner-plaintiff to get earlier dismissal for default of restoration application No. 2 set aside by moving the third restoration application. The learned Trial Judge has not addressed himself on this aspect. He has dismissed the third restoration application on the short ground that it is not maintainable at law. In view of the scheme of Order IX Rule 9 read with explanation to Section 141 of the Civil Procedure Code, the said reasoning of the learned Trial Judge cannot be sustained. It proceeds on a misconception of the relevant procedural provision. Hence, the learned Trial Judge failed to exercise the jurisdiction vested in him by law.

Mr. Amin, the Learned Counsel for the petitioner-plaintiff invited my attention to a decision reported in 21 GLR 764 in the case of Keshavlul A. Patel and Anr. v. Karsandas Ambalal Marfatia wherein N.H. Bhatt, J. has taken the view that after the insertion of Section 141 of Civil Procedure Code, provision of Order IX Rule 9 will be attracted even to application under Order IX Rule 9, restoration application for restoration of the earlier application can lie. The learned Trial Judge misread the ratio of the said judgment and took the view that ratio of the said judgment can be said to mean that if one restoration application was dismissed for default, it could have been restored by a second restoration application, but not further and that there cannot be any third or successive restoration applications seeking to restore the earlier restoration applications. In my view, the said reading by the learned Trial Judge of the ratio of the judgment of this Court in Keshavla''s case is not a correct reading of the ratio and amounts to misreading of the said ratio.

Mr. J.R. Nanavati appearing for the respondent vehemently submitted that even if the learned Trial Judge might have committed an error in reading the ratio of the decision of this Court and even if third restoration application was maintainable in law, looking to the history of litigation and way in which the plaintiff has behaved all these years when twice his restoration applications were dismissed for default and earlier his suit was dismissed for default, it appears that he is not serious about the proceedings in the suit and he seems to have filed a chance litigation with a view to knock out some money from the opponent and, therefore, I should not interfere in the revisional jurisdiction with the impugned order. It cannot be said that the grievance made by Mr. Nanavati is totally unjustified looking to the way the litigation has proceeded in the trial Court in a ding dong fashion from stage to stage. But may be the plaintiff still may have some good grounds to point out to the learned Trial Judge why on earlier occasions, not once not twice but thrice, he could not remain present on the relevant occasion which resulted in dismissal orders not only of his suit, but also of his earlier two restoration applications. That will require evidence to be led and looked into by the learned Trial Judge. It will be too premature at this stage to say that the plaintiff never cared to proceed with the suit especially when it is a special suit for recovery of a large amount. It is not, therefore, proper nor possible for me to make any observations on this aspect. If the plaintiff is ultimately found to be remiss, negligent and careless and not serious about the proceedings, the learned Trial Judge who decides the restoration application may dismiss the application on merits. On the other hand, if it is found that the plaintiff was prevented by sufficient cause, then naturally, proper orders on merit can be passed in favour of the plaintiff. But it will be too premature to say one way or the other, at this stage. The only ground on which 1 interfere in the present proceedings is that the learned Trial Judge was not right when he held that the third restoration application was not maintainable and, therefore, he failed to exercise his jurisdiction vested in him by law. I cannot say that by not interfering with his order, substantial justice will be done as it will result in shutting out the plaintiff''s grievance which has to be considered on merits especially when original suit is for a large amount and, therefore, it will not be proper for me to dismiss his revision application though I am convinced that the third restoration application is maintainable in law. However, to eliminate the apprehension of the defendant that the plaintiff is not at all serious about the proceedings and he will still harass the defendant and in order to Judge the bona fides of the plaintiff-petitioner, proper order as to deposit of costs to be paid to the defendant-opponent as a condition precedent to the restoration of Misc. Civil Application No. 39 of 1981 on the file of the learned Trial Judge will have to be passed. The order passed by the learned 2nd Joint Civil Judge, Sr. Dn. Baroda in Misc. Civil Application No. 39 of 1981 at Ex. 26 dated 12th November, 1982 is hereby quashed and set aside. The said Misc. Civil Application No. 39 of 1981 namely the third restoration application is restored to the file of the learned Trial Judge with a direction to proceed with the same on merits in accordance with law. The learned Trial Judge will enable both the parties to offer whatever evidence they choose to adduce in support of their respective cases. However, as the condition precedent to the restoration of application being Misc. Civil Application No. 39 of 1981 on the file of the learned Trial Judge, it is directed that the petitioner-plaintiff will pay Rs. 500/- as costs to the defendant-opponent and on payment of such costs, the learned Trial Judge shall proceed on merits with Misc. Civil Application No. 39 of 1981 as restored by this order and in accordance with law. If that cost is not paid by the petitioner-plaintiff to the opponent-defendant, the Misc. Civil Application No. 39 of 1981 shall remain dismissed. The learned Trial Judge, after receipt of writ of this Court, will intimate to the parties about the next date of hearing fixed in Misc. Civil Application No. 39 of 1981 and will give sufficient time to the petitioner-plaintiff to deposit Rs. 500/- for payment to the opponent and thereafter proceed in accordance with law and in light of the observations made in this order.

Rule issued in this petition is accordingly made absolute with no order as to costs in the facts and circumstances of the case.