Thangavelpillai vs Periyasamy Udayar

S. Palanivelu, J.—This Civil Revision Petition is directed against the order dated 3.8.2007 made in I.A.No.1561 of 2005 in O.S.No.647 of

1995 on the file of the learned District Munsif, Perambalur. The petitioner is the defendant in O.S.No.647 of 1995. The respondent is the plaintiff

on the file of the learned District Munsif, Perambalur. The case was posted on 17.10.1995 for filing written statement. Since the written statement

was not filed on the said date, he was called and an ex parte order was passed. The case was posted for the appearance of the plaintiff and for

recording his ex parte evidence on 17.11.1995, 20.11.1995 and 11.12.1995, however he did not make his presence before the Court. Finally on

21.12.1995, when the case was posted for his appearance, he did not appear before the Court, resulting in the dismissal of the suit for non-

prosecution.

Thereafter, he filed an application in I.A.No.21 of 1996 under Order 9 Rule 9 of CPC to restore the case to file. The lower Court allowed the

application without issuing notice to the defendant/the petitioner herein and thereafter on 7.2.1996, he was examined by the Court and ex parte

decree was passed against the petitioner. The respondent levied the Execution Proceedings in E.P.No.38 of 2005 on the file of the above said

Court for attachment and sale of the properties belonging to the petitioner.

The petitioner had no knowledge about the above said dismissal of the suit. Only after receipt of the summons in the Execution Proceedings, he

filed an application to set aside the ex parte decree passed against him along with the application to condone the delay of 3177 days in filing the

said application.

Heard Mr. P. Valliappaan, the learned counsel for the petitioner.

The quintessence of the contention of the learned counsel for the petitioner is that even though the petition was filed for condoning the delay of

3177 days, it has been filed only with abundant caution and in fact there was no such delay at all. He explained the delay by stating that the failure

on the part of the Court to issue notice to the petitioner is very much prejudicial to his right and he had knowledge only after receiving the notice in

the Execution proceedings. Under Order 9 Rule 9 of CPC, unless notice of the application has to be served on the opposite party, no order could

be passed. But ignoring the said provision, the lower Court has passed the order against the petitioner, which is unsustainable as per his contention.

He garners support from an earlier decision of this Court in the The Manager Personal Banking Division State Bank of India, Madras, Branch

Manager State Bank of India, Saidapet Branch, Madras and Regional Manager State Bank of India Regional Office, Madras Vs. P.S.

Maragatham, wherein this Court, while discussing about Order 9 Rule 9 of CPC has observed that it is incumbent upon the Court to issue a notice,

when the application for restoration of Suit under Order 9 Rule 9 of CPC is filed. It is also observed that notice to the respondent in the said

application is mandatory.

In another ruling of this court in Hindustan Petroleum Corporation Limited Vs. Karthikeyan Agencies, this court held that apart from Rule 32 of

the Civil Rules of Practice even under Order 9 rule 9(2) of C.P.C, notice of the application should be served on the opposite party.

The lower Court while justifying the non-issuance of notice to the respondent, appears to have treated the application filed by the respondent as

one under Order 9 Rule 4 of C.P.C and observed that even though there was no notice in the petition filed under order 9 Rule 9 to the respondent,

it was not wrong or illegal in allowing the application. In the view of this Court, the above said observation is not correct. The order 9 Rule 4 of

C.P.C reads as follows:

Plaintiff 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 order, and if he satisfies the Court that there was sufficient cause for (such failure as is referred to in Rule 2) or for his non-

appearance, 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.

Even though the above said provision is silent about the issuance of notice to the respondent, still the duty is cast upon the Court to give notice to

the other side under Rule 32 of the Civil Rules of Practice.

This court had taken identical view in this regard in K. Narayanaswamy Vs. Sundari, , wherein it is held as follows:

Though on a strict interpretation of Order 9 Rule 4, Civil Procedure Code, it may be that no notice as such is contemplated by that provision, yet

the Civil Rules of Practice provide for giving of such a notice even in interlocutory applications to the other side and no distinction is made whether

the other party had appeared earlier or not.

It has been made clear that even though Order 9 Rule 4 of CPC has not provided for the issuance of notice to the other side, the Court is

burdened with the duty of ordering notice to the respondent. Ignoring the said principle is a glaring violation of well settled principles. The

submission put forth on behalf of the petitioner could not be negated without examination of relevant provisions. I find considerable force in the

arguments of learned counsel for the petitioner. The order impugned does not indicate adherence to law.

Since this Court has found that it is very much necessary to issue notice in the application filed u/s Order 9 Rule 9 of CPC, because the

petitioner did not get any notice from the Court, the order of rejection passed by the Court is illegal. In such view of the matter, the delay has to be

necessarily condoned and it is hereby condoned. In fine, the Civil Revision Petition is allowed. The learned District Munsif, Perambalur is directed

to restore I.A.No.21 of 1996 to its file, give necessary notice to the petitioner herein and dispose of the same expeditiously on merits. No costs.

The connected Miscellaneous Petition is closed.