Yogesh Chander vs Vaneeta

Sanjay Karol, J.—In the year 2002, plaintiffs, Yogesh Chander, Taresh Chander and Bhuvnesh Chander filed a suit for declaration and injunction against defendants, Vaneeta, Sunita and Mukesh. For the reason that plaintiffs failed to pursue the matter, despite several opportunities so afforded, on 7.7.2011 trial Court dismissed the suit in default for want of prosecution.

Yogesh Chander, plaintiff No. 1, filed an application seeking recall of this order, inter alia pleading that counsel for the plaintiffs remained busy in the District Courts at Solan and applicant being bed ridden, having suffered a paralytic attack could not attend Court proceedings. Significantly, no application was filed on behalf of plaintiffs, Taresh Chander and Bhuvnesh Chander nor their affidavit annexed in support of averments so made in the application. Defendants vehemently opposed the same inter alia pleading falsehood. Vide impugned order dated 16.5.2014, such application alongwith prayer for condonation of delay stands dismissed by the trial Court.

Plaintiff, Yogesh Chander has filed the instant petition under Article 227 of the Constitution of India, maintainability of which is questioned by learned counsel for the respondent.

The moot question which arises for consideration is as to whether in view of specific remedy of appeal, so provided under the provisions of Order 43 of the CPC, present petition is maintainable or not.

Justifying maintainability of the petition, Mr. O.C. Sharma, learned counsel for the petitioner invites attention to the decision rendered by Hon''ble the Supreme Court of India in Firdous Omer (D) by LRs. and Others Vs. Bankim Chandra Daw (D) by LRs. and Others, and decision rendered by this Court in Piaro Devi Vs. Anant Ram and Another, .

Trial Court dismissed the suit in default for non prosecution. This could have been only under the provisions of Order 9 Rule 8 CPC. Order dated 7.7.2011 specifically records that despite repeated calls and appearance of the defendants, plaintiffs chose neither to appear nor pursue the matter. In the instant case, defendants had vehemently resisted the suit, controverting the averments made in the plaint, by filing joint written statement. When plaintiffs filed an application seeking recall of the order in question, defendants filed reply controverting factual position.

Such application could have been filed only under the provisions of Rule 9 and not Rule 4 of Order 9 CPC. Trial court erred in considering the application under wrong provision of law. Significantly, trial Court dismissed the suit for non prosecution by the plaintiffs and not on any one of the grounds, so specified under Rules 2 and 3 of Order 9 CPC.

The appellant has a specific remedy of filing an appeal under Order 43 of the CPC, relevant provision of which reads as under:-

"(c) 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;"

Under these circumstances, present petition filed under Article 227 of the Constitution of India is misconceived and thus not maintainable in law.

Reliance upon decisions referred to (supra) are also misconceived. In Piaro Devi (supra), in almost identical circumstances, where petitioner filed a petition under Article 227 of the Constitution of India, assailing the Order passed by trial Court under Order 9 Rule 8 CPC, Court held the petition to be not maintainable. Also in Firdous Omer (supra), it is only held that order dismissing the suit for non appearance is not a decree, so specified under the provisions of sub-section 2 of Section 2 of CPC and as such is not appealable as a decree. The ratio laid down therein does not advance the case of the petitioner, in any manner.

As such, for all the aforesaid reasons, present petition stands disposed of, so also pending application(s), if any.