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2001 DIGILAW 189 (JK)

Qazi Gh. Nabi v. Qazi Ab. Hamid

2001-09-07

B.L.BHAT

body2001
1. Through the medium of petition in hand, the petitioner namely Qazi Ghulam Nabi has sought indulgence of this court for the restoration of Civil Revision No: 136/2000, dismissed by this court on 25-04-2001 for non-appearance of the petitioner. It is inter alia maintained that the petitioner filed a revision petition against the order dated: 18-11-2000 passed by Addl. District Judge, Srinagar. That on 25-01-2001 this court came to issue notice in the said revision petition which was accepted by Mr. M.A. Dar, advocate on behalf of respondents and the case came to be adjourned for service of notice on the remaining respondents. That after 25-01-2001 the petition was listed in the court on 11 -02-2001 when the lawyers were on strike as a result of which the petitioner bonafidely believed that since the lawyers are on strike, the court would adjourn the case but on the said dated Mr.A.K.. Malik, learned counsel appeared for the respondents and this court heard the matter on part and directed the matter to come up next week. That the matter was listed before the Court on 25-04-2001 when again the lawyers were on strike. That since the petitioner has not caused his appearance on 11-04-2001 before the court as the bonafidely believed that the court may have adjourned the case of its own. Therefore on 25-04-2001 also he did not cause his appearance. On this date Mr. Malik, learned counsel for the respondents appeared and the case was dismissed for want of prosecution. That in the revision petition an important question of law was raised which need authoritative pronouncement, therefore the same could not have been dismissed in default. 2. Mr. A.K. Malik appearing on behalf of the respondents has not filed the objections, however has verbally stated that the petition in hand is not sustainable in law because the provisions of CPC cannot be made applicable to this petition. 3. I have considered the submission of the learned counsel for the respondents and also heard Mr. M.A. Qayoom, learned counsel for the petitioner. 4. The submission of Mr. Malik that the provisions of CPC cannot be made applicable to the petition in hand which ostensibly is filed under Order 9 Rule 9 CPC. 3. I have considered the submission of the learned counsel for the respondents and also heard Mr. M.A. Qayoom, learned counsel for the petitioner. 4. The submission of Mr. Malik that the provisions of CPC cannot be made applicable to the petition in hand which ostensibly is filed under Order 9 Rule 9 CPC. In this behalf he has invited the attention of the Court to Section 19 of the Arbitration and Conciliation Act, 1996 which deals for determination of rules of procedure in the conduct of the arbitration proceedings, therefore, cannot be made applicable to the case in hand. This being so, the submission is not tenable. 5. Section 141 of the CPC provides that the procedure provides in this Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in a Court of Civil Jurisdiction. The explanation to this section provides that the expression "proceedings" in this section includes proceedings under Order 9 but does not include under Article 226 of the Constitution of India. In the case of Munshi Ram Vs. Banwari Lal "AIR 1962 SC 903 the lord ships of the Supreme Court have held that under section 141 of the Arbitration Act and also under section 141 of the CPC it was competent to the court before which award was made by the Arbitration Tribunal has filed for passing a decree in terms of thereof to permit parties to compromise under Order 23 Rule 23 CPC. In view of the authoritative judgment of the apex court, the Code of Civil Procedure is applicable to the proceedings in Court under the Arbitration Act and also to the petitions for restoration of such proceedings under Order 9 Rule 9 CPC. This takes us to determine as to whether on 25-04-2001 when the Civil Revision in question came to be dismissed whether the petitioner had a sufficient cause for his non-appearance. The petition is supported with the affidavit. It is not resisted by the otherside, therefore the averments of the petition are to be believed to be true. This takes us to determine as to whether on 25-04-2001 when the Civil Revision in question came to be dismissed whether the petitioner had a sufficient cause for his non-appearance. The petition is supported with the affidavit. It is not resisted by the otherside, therefore the averments of the petition are to be believed to be true. From the persual of the petition it is therefore, proved that the petitioner had engaged a Counsel in the case and it is because of the in action of his counsel who was on strike alongwith other members of the bar, the case came to be dismissed in default the non-appearance of the petitioner. The petitioner had engaged counsel in the case, had given him the brief of the case as a result of which he was confident that his counsel would appear in the case. Therefore a case is made out for restoration of the Civil Revision No. 136/2000 after setting aside the impugned order recorded on 25-04-2001 at least on some terms, because the non-appearance of the petitioner is attributed entirely to his counsel. As indicated above, that the Civil Revision came to be dismissed on 25-04-2001 and the perusal of the petition reveals that it has been filed before this court on 14-05-2001, that is to say, within the period of limitation. Therefore, the petition is allowed and the order impugned recorded on 25-04-2001 with respect to Civil Revision No. 136/2000 is set aside subject to payment of cost of Rs. 500/- payable within four weeks from today, and the petitioner is permitted to recover half of the costs from his counsel. In case learned counsel for the petitioner has any explanation to offer, in this regard, he may submit the same within four weeks. On deposition of costs, the Civil Revision be restored to its original number and be listed for orders.