Swamambal vs K. Thambal and 2 others

This Revision Petition is at the instance of the Plaintiff in O.S.No.317 of 1983 on the file of the District Munsif, Melur. She filed the suit for injunction restraining the defendants from interfering with her possession in any manner. The suit was decreed ex prate on 12.9.1983. The defendants filed I.A.No.767 of 1984 for setting aside the ex parte decree. That application was dismissed for default as the defendants were absent on 19.3.1985. The defendants fled I.A.No.253 of 1985 for restoration of I.A.No.767 of 1984 after canceling the order dated 19.3.1985. That application was opposed by the plaintiff and the trial court dismissed the same on merits. The defendants filed C.M.A.No.72 of 1985 on the file of the Sub Court, Madurai against the order of the trial court. The Subordinate Judge allowed the appeal and restored I.A.No.767 of 1984 to file. It is against the said order of the Subordinate Judge; this revision petition has been filed by the plaintiff.

The first objection raised by the Plaintiff is that the appeal before the Subordinate Judge at the instance of the defendants was not maintainable. The contention is that under Order 43 , R. 1(c) of the Code of Civil Procedure, an appeal is maintainable only against an order rejecting an application to set aside dismissal of a suit. It is the contention of the petitioner that the order of the trial court is one rejecting an application to set aside the order of dismissal of an application. That will not amount to an application to set aside the dismissal of a suit. In support of the contention, the petitioner refers to the following authorities: (1) Sadava Padayachi v. Chinnaswami Naidu (69 M.J.J.99 = 41 L.W.811); (2) Gaja Vs. Mohd. Farukh and Others, (3) Nathu Prasad Vs. Singhai Kapurchand, and (4) Anil Chandra Roy and Ors. v. Uma Kanta Roy and others ( AIR 1985 NOC 1 (Ganapahti). The second objection raised by the petitioner''s counsel is that the Subordinate Judge is in error in allowing the appeal on merits without considering the entire evidence on record.

Per contra, it is contended by learned counsel for the respondents that the appeal before the Subordinate Judge was maintainable under O.43 R.1(c) of the Code of Civil Procedure. It is the contention of the respondents that by virtue of S.141of the Code of Civil Procedure, the provisions of O.9, R.9are applicable to orders made under O.9, R.13and consequently, the procedure which is applicable in regard to suits could also be applicable to applications. It is also contended that the judgment of the Division Bench of this Court was long prior to the introduction of an Explanation to S.141of the CPC and after the Amendment Act of 1976 introducing the Explanation, the judgment will not hold good. Learned counsel for the respondents invites cay attention to the following authorities; (1) Bhola Nath De v. Naishimha Prasad and others (1923) 76 Indian Cases 533) ; (2) Hazi Rustam Ali Vs. Emamnuddin Khan and Others, (3) Dulal Chandra Ojha Vs. Banamali Guchait and Others, and V.P. Nagarajan Vs. Prabhavathi, . On the merits, it is the contention of the learned counsel for the respondents that the lower appellate court was right in allowing the appeal and giving another opportunity to the defendants to contest the suit.

On the question of maintainability of the appeal before the learned Subordinate Judge, it has to be borne in mind that an appeal is not a natural or inherent right to a litigant: nor is it a procedural right. It has been held by the Supreme Court in Smt. Ganga Bai Vs. Vijay Kumar and Others, that an appeal for its maintainability must have the authority of law and it is a creature of statute. The Supreme Court points out the distinction between inherent right in a person to file a suit of civil nature and a right to file an appeal. The Supreme Court held that the latter should be conferred by a statute and it is not a natural or inherent right. A right of appeal is held to be a substantive right and not procedural in Garikapatti Veeraya Vs. N. Subbiah Choudhury, .

Bearing in mind those principles, a look at the provisions of the CPC would show that an appeal is provided only in certain cases under O.43, R.1. The relevant clause is found in O. 43 R.1(c) of the Code of Civil Procedure. It reads thus:

An order under R.9 or O. 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit.

The language in the Clause is very clear that it is confined to applications for orders to set aside the dismissal of a suit. A suit is certainly different from an application. In the code of Civil Procedure, a suit cannot mean and include an application.

The question is whether by virtue of the provisions of S.141of the Code of Civil Procedure, a right of appeal is conferred on a party against an order rejecting an application to restore another application to file. S.141of the CPC is in the following terms:

Miscellaneous proceedings:-The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.

The Explanation was introduced by amendment Act 104 of 1976. As per the Explanation, a procedure prescribed in the Code with regard to suits are made applicable to proceedings under O. 9 of the Code. That would only mean that the provisions for restoration of a suit by setting aside an ex parte decree or setting aside an order of dismissal for default are applicable to orders passed ex parte in applications under O. 9 or orders dismissing for default applications under O. 9 of the Code of Civil Procedure. That will not by itself lead to the conclusion that the provision relating to appeal under O. 43of the CPC would also apply to any order rejecting an application under O.9. The Section refers only to the procedure. The section does not refer to any substantive right. As pointed out already, appeal is a substantive right and it has to be conferred by a statute. When the CPC Confers a right of appeal only with reference to orders rejecting applications for restoration of suits. It cannot be construed as a right of appeal against orders rejecting applications for restoration of applications. In other words, O. 9 Rr.9and 13 of the CPC provide for applications to restore suits and applications to restore applications in the Code of Civil Procedure. But, a right of appeal is conferred only with reference to orders on applications to restore suits and not orders on applications to restore applications. Even there; appeal is provided only against an order rejecting the application and not an order granting the same.

This is the proposition that has been laid down by the Division Bench of this court in Sadaya Padayachi v. Chinnaswami Naidu (41 L.W.811 = 69 M.L.J.99). It was held in that case that where an ex parte decree had been passed against a party who applied under O. 9 R.13of the CPC to have it set aside, and that application was dismissed for default and an application to set aside that order and restore the application was made and it was dismissed on merits, an appeal preferred against the latter order was not maintainable. At that time, the Explanation to S.141of the CPC was not there. But, the absence of the Explanation does not make any difference in the position of law. The Division Bench has after extracting S. 141 of the CPC stated the law thus:

And it has been invoked as sufficient warrant for the view held in two Madras cases, Venkatanarasimha Rao v. Suryanarayana (AIR 1926 Mad.325) and Salar Beg Saheb v. Karumanchi Kotayya (AIR 1926 Mad.654) that the petitions of O.0, R.9, Civil Procedure Code, will apply to applications made under the same rule as well as to applications to set aside a dismissal of a suit. That however is not to say that the same Section will avail to confer a right of appeal. It deals only with procedure, whereas a right of appeal is a substantive right. Under S.104of the Code such a right is enjoyed only in respect of orders specified in that Section or in O.43, R. 1. There is ample authority for this position, see Chandar Sahai v. Durga Prasad, (1924) I.L.R.46 A11.538), Sharif Husain v. Haidar Hussain (AIR 1922 A11.377) and Hara Kumar Miner v. Murari Mohan Bose (1922) 69 I.C. 1003) The case in Jagdish Narain Prasnad Singh v. Harbans Narain Singh (1917) 2 P.L.J. 720) is we, think a design in the same sense though the head-note is clearly wrong and the judgment is not very clearly expressed. The analogous question whether an appeal will lie against an application to set aside a dismissal not of a suit but of another application under the Code has been decided in Jung Bahadur v. Mahadeo Prasad (1903) I.L.R.31 Cal.207), which related to the old Code and dealt with an application under what is now O.21, R.90.

The Allahabad High Court has followed the above judgment of this Court in Gaja Vs. Mohd. Farukh and Others, . A similar view is taken in Nathu Prasad Vs. Singhai Kapurchand, and Anil Chandra Roy and Ors. v. Uma Kanta Roy and others ( AIR 1985 NOC.1(Gau). It is not necessary for me to refer in detail to those cases as the decision of the Division Bench of this Court referred to above is sufficient as it has laid down the law clearly.

The judgments referred to by learned counsel for the respondents in Hazi Rustam Ali Vs. Emamnuddin Khan and Others, and Dulal Chandra Ojha Vs. Banamali Guchait and Others, do not have any bearing on this case. In both the cases, the question whether an appeal would lie against an order dismissing an application to restore an application did not arise for consideration. In the former case, a suit was decreed ex parte and an application for restoration of the same was filed under O.9 R.13 . That was dismissed and an application under S.151of the CPC was filed for restoration of the said application. The said application was dismissed by the trial court. When the order of dismissal was challenged in the High Court, it was held that the remedy of the party concerned was to file an application for restoration of the application under O. 9, R.9of the CPC and S.151of the CPC was not available to the said party. Consequently the revision filed before the High Court was dismissed. In the latter case, a case was dismissed for default and an appeal was filed against the same. The appeal was dismissed as not maintainable. On merits also, it was dismissed. The High Court of Calcutta pointed out that an appeal would lie under O. 43, R.1of the CPC as the application before the Court below was one under O. 9, R.9of the C.P.C. The High Court had no occasion to consider the question which has arisen before me. The judgment in Bholanath De''s Case (76 I.C.533) has no bearing on this case.

The last of the judgments referred to by learned counsel for the respondents is mine in V.P. Nagarajan Vs. Prabhavathi, In that case, an appeal was filed against an order rejecting an application to restore an application which was dismissed for default. Learned counsel for the respondents appearing therein raised an objection that the appeal was not maintainable, but, at the same time, he argued on merits also contending that there was no merit in the appeal. While holding that there was no explanation for the default and dismissing the same on merits, I held that the appeal was maintainable in view of the amendment of the Code in 1976 introducing an explanation to S.141of the Code of Civil Procedure. The relevant observations made by me are as follows:-

An objection is taken by learned counsel for the respondent as to the maintainability of the appeal. Learned counsel placed reliance on a decision of a Division Bench of this Court in Sadaya Padayachi and another v. Chinnasami Naidu (41 L.W.811). Learned counsel for the petitioner invites my attention to the amendment to S.141C.P. Code, brought in by Act 104 of 1976 whereby an explanation was added to the section by which the proceedings under O.9. R.9,C.P.C. were included in the expression ''proceedings'' found in the section. In view of the said amendment, the decision in Sadaya Padayachi and another v. Chinnaswami Naidu (41 L.W.811 = 69 M.L.J.99), will not help the respondent. Hence, the appeal is maintainable.

I had distinguished the judgment of the Division Bench in Sadaya Padayachi v. Chinnaswami Naidu (69 M.L.J.99 = 41 L.W.811) on the ground that the Code had been amended sub sequent thereto. On a proper consideration of the matter I am of the view that I was in error in holding that the amendment had altered the position. The reasons given by me earlier in this judgment would show that the amendment to S.141of the CPC had not conferred any right of appeal on the party who suffers a dismissal of an application for restoration of an application. The Explanation will only make the procedure applicable to suits also applicable to proceedings under O.9of the Code of Civil Procedure. Hence, the opinion expressed by me in Nagarajan V.P. v. Prabavathi (1989- 1 -L.W.543) is erroneous.

Even on the merits of the case, I agree with learned counsel for the petitioner that the learned Subordinate Judge has not considered the relevant evidence on record. The trial court has pointed out the attempts made by the first respondent, the mother of the second respondent that she went to Madurai to bring her lawyer only at 2 p.m. on the date on which the application was posted for hearing. It was also admitted by her that after seeing the advocate in the hospital at Madurai, she did not go back to Court in Melur. The case set out in the affidavit filed in support of the application was that the petitioner-defendants went to Madurai to bring the Advocate for hearing, but, on account of accident, he was in the hospital and by the time the defendants went to the District Munsif s court, Madurai, the case had already been called and the application was dismissed for default. The evidence given by the defendants in the witness box runs directly counter to the case set out in the affidavit. This aspect of the matter has not been considered by the learned Subordinate Judge while allowing the appeal. Hence, the discussion of the evidence of the learned Subordinate Judge in the order is vitiated. Consequently, the order allowing the appeal is erroneous on merits also. In the result, the civil revision petition is allowed. The order made by the Subordinate Judge in C.M.A.72 of 1985 is set aside and the order of the District Munsif, Melur dismissing I.A.No.253 of 1985 is restored. There will be no order as to costs.