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2004 DIGILAW 178 (KAR)

SMT. ZAREEN TAJ v. KHURMATHUNNISA

2004-03-04

N.S.VEERABHADRAIAH

body2004
( 1 ) THIS is the plaintiffs revision being aggrieved of the order dated 20. 3. 2003 passed in O. S. No. 87/1994 by the II Addl. Civil Judge (Jr. Dn.), Hassan, refusing to restore the suit though ordered for restoration in Misc. No. 1/2000. ( 2 ) THE brief facts of the case as follows: the plaintiff Smt. Zareena Taj filed a suit against the defendants for possession before the learned Prl. Civil (Jr. Dn. ,), Hassan. The suit came to be numbered as O. S. No. 87/94 and made over to the II Addl. Civil Judge (Jr. Dn.), Hassan, the said suit came to be dismissed for non-prosecution on 20. 9. 1999. The plaintiff filed a Misc. Petition under order 9 Rule 9 CPC for restoration of the suit by setting aside the order of dismissal dated 20. 9. 1999. the said Misc. Petition came to be numbered as Misc. No. 1/2000 by the Prl. Civil Judge (Jr. Dn. ,) Hassan. The notice sent to the respondents came to be refused. Thereafter, the court recorded the evidence of P. W. 1 and marked Ext. P. 1. the learned Prl. Civil Judge (Jr. Dn. ,), Hassan, appreciating the evidence allowed Misc. No. 1/2000 by setting aside the order of dismissal of O. S. No. 87/94 dated 20. 9. 1999 and restored the suit. After allowing Misc. No. 1/2000, it was made over to the II Addl. Civil Judge (Jr. Dn. ,) Hassan. When the matter came up before the II Addl. Civil Judge (Jr. Dn. ,) Hasssan, he refused to restore the suit and passed the following order: misc. No. 1/2000 is not filed before this court and even though the suit is dismissed by this court, no such Misc. Petition is filed before this court. hence, restoration of suit is not restored. ( 3 ) IT is this order which is questioned in the present revision. Learned counsel for the petitioner contended, it is no doubt true that the suit came to be dismissed for non- prosecution on 20. 9. 1999 and immediately a Misc. Petition under order 9 Rule 9 CPC was filed in the office of the learned Prl. Civil Judge (Jr. Dn. ,) Hassan which came to be numbered as Misc, No. 1/2000 and the same was disposed of the learned the Misc. Petition. 9. 1999 and immediately a Misc. Petition under order 9 Rule 9 CPC was filed in the office of the learned Prl. Civil Judge (Jr. Dn. ,) Hassan which came to be numbered as Misc, No. 1/2000 and the same was disposed of the learned the Misc. Petition. Therefore, there is no error apparent on the face of the record, the learned II Addl. Civil Judge (Jr. Dn. ,) Hassan, instead of proceeding with the suit passed the impugned order erroneously forgetting the administrative powers of the learned Prl. Civil Judge (Jr. Dn. ,), Hassan. He also contended that there are 3 courts of Civil Judges (Jr. Dn. ,) at Hassan (Jr. Dvn ). , Hassan viz. , (1) Prl. Civil Judge (Jr. Dn. ,), (2) I Addl. Civil Judge (Jr. Dn.), and (3) II Addl. Civil Judge (Jr. Dn.), and it is the Prl. Civil Judge (Jr. Dn. ,), Hassan, who has control over the administration. Therefore, the is no error on the face of the record and that the learned Ii Addl. Civil Judge (Jr. Dn.), Hassan, ought not to have dismissed the suit. Accordingly, prayed to allow the revision. ( 4 ) THE respondents though served remained unrepresented. In the light of the submissions, the point for consideration that arises is: whether the petition for restoration under Order 9 Rule 9 CPC has to be filed before the same court which dismissed O. S. No. 87/94 and there by the impugned order suffers from infirmities? it is not in dispute that O. S. No. 87/94 filed before the learned Prl. Civil Judge (Jr. Dn. ,), Hassan, was made over to the court of the learned II Addl. Civil Judge (Jr. Dn.) Hassan. The suit came to be dismissed for non- prosecution on 20. 9. 1999. It is also not in dispute that Misc. Petition under Order 9 Rule CPC was filed by the petitioner before the learned Prl. Civil Judge (Jr. Dn. ,), Hassan. But without making over the said petition to the court of the learned II Addl. Civil Judge (Jr. Dn.), Hassan, the learned Prl. Civil Judge (Jr. Dn. ,) has himself disposed of Misc. No. 1/2000. Petition under Order 9 Rule CPC was filed by the petitioner before the learned Prl. Civil Judge (Jr. Dn. ,), Hassan. But without making over the said petition to the court of the learned II Addl. Civil Judge (Jr. Dn.), Hassan, the learned Prl. Civil Judge (Jr. Dn. ,) has himself disposed of Misc. No. 1/2000. Chapter II of Karnataka Civil Courts Act, 1964 deals with the Establishment and Constitution of Civil Courts Sections 7, 8 and 9 of the Karnataka Civil Courts Act, 1964 reads thus: ( 5 ) ESTABLISHMENT of Courts of Civil Judges (Junior Division) (1) There shall be in each district such number of courts of civil Judges (Junior Divisions) as may be fixed by the State Government, in consultation with the High court. (2) Each Court of a Civil Judge (Junior Division) shall be presided over by a Civil Judge (Junior Division ). 8. Number of Civil Judges (Senior Division) and Civil Judges (Junior division) to the Court of a civil judge (Senior Division ) or Civil Judge (Junior Division), - The State Government may, in consultation with the High Court, fix and from time to time vary, by notification, the number of Civil Judges (Senior Division) to be appointed for the court of a civil Judge (senior division) and the number of civil judges (Junior Division) to be appointed for a court of Civil judge (Junior Division ). ( 6 ) DISTRIBUTION of work when more than one judge is appointed to a court (1) when more than one civil judge (Senior Division) is appointed to the court of a civil Judge (Senior Division) or more than one Civil judge (Junior Division) is appointed to a court of Civil Judge (Junior Division), one of the Civil Judges (Senior Division) or one of the civil Judges (Junior Division), shall be appointed as the principal civil judge (Senior Division) or the principal Civil Judge (Junior Division) and the other Additional Civil judges (senior Division) and the other Additional Civil Judges (Senior Division) or Additional Civil Judges (Junior Division), as the case may be. (2) Each of the judges appointed to the court of a Civil judge (Senior Division) or a court of Civil Judge (Junior Division) may exercise all or any of the powers conferred on such court by this act or any other law for the time being in force. (2) Each of the judges appointed to the court of a Civil judge (Senior Division) or a court of Civil Judge (Junior Division) may exercise all or any of the powers conferred on such court by this act or any other law for the time being in force. (3) Subject to the general or special orders of the district Judge, the Principal Civil Judge (Senior Division) or the principal Civil Judge (Junior Division) may, from time to time make such arrangements as he thinks fit, for the distribution of the business of the court among the various Civil Judges (Senior Division) or Civil Judges (Junior Division) thereof. Section 7 deals with the Establishment of Courts of Civil Judges (Junior division) by the State Government in consultation with the High Court where in each court shall be presided over by a civil judge (Junior Division ). Particularly Section 9 (3) provides for administrative arrangement and distribution of work to be done by the Prl. Civil judge (Jr. Dn. ,), that too, for purposes of smooth administration of work. In the present case, there are 3 courts viz. , (1) Prl. Civil judge (Jr. Dn. ,), Hassan (2) I Addl. Civil Judge (Jr. Dn.), Hassan and (3) II Addl. Civil Judge (Jr. Dn.), Hassan. That for purposes of administrative arrangement and distribution of work, it is the Prl. Civil judge (Jr. Dv. ,), Hassan , who is empowered. Like wise O. S. No. 87/94 was made over to the court of II Addl. Civil judge (Jr. Dn.), Hassan. It is no doubt true that after the dismissal of the suit, Misc. petition under Order 9 Rule 9 CPC came to be presented in the office of the learned Prl. Civil Judge (Jr. Dn. ,), Hassan and the same was retained on the file of the learned Prl. Civil Judge (Jr. Dn. ,), Hassan and numbered as Misc. No. 1/2000. the jurisdiction of all the Civil Judges (Jr. Dn. ,) is one and the same. Even otherwise, if the work not allotted to a court were to be disposed of by another court of Civil judge (Jr. Dn. ,) having jurisdiction, it is only a mere irregularity not affecting the jurisdiction. In the present case, the Misc. Petition came to be disposed of by the learned Prl. Civil Judge (Jr. Dn. ,), Hassan. Even otherwise, if the work not allotted to a court were to be disposed of by another court of Civil judge (Jr. Dn. ,) having jurisdiction, it is only a mere irregularity not affecting the jurisdiction. In the present case, the Misc. Petition came to be disposed of by the learned Prl. Civil Judge (Jr. Dn. ,), Hassan. Therefore it does not affect the jurisdiction of the court of the II Addl. Civil judge (Jr. Dn. ,) Hassan. Therefore, the observation of the Ii Addl. Civil Judge (Jr. Dn. ,), Hassan, that the petitioner has not filed any Misc. petition before the very same court and therefore, he is not restoring the suit is erroneous and not sustainable. That apart, order 9 Rule CPC reads thus: ( 7 ) DECREE against plaintiff by default bars fresh suit, - (1) where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded form bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non appearance where the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. The overall reading of order 9 CPC makes clear that for restoration of the suit, he has to make an application under Order 9 Rule 9 CPC before the court which has jurisdiction and this proviso has to be read along with section 9 (3) of the Karnataka Civil Courts Act, 1964 which empowers the learned Civil judge (Jr. Dn. ,), Hassan, administrating the work of distribution of the business of the court among various Civil Judges (Jr. Dn. , ). For the foregoing reasons, the impugned order of the II addl. Civil Judge (Jr. Dn.), Hassan is liable to be set aside. Accordingly, the revision is allowed directing the learned Civil Judge (Jr. Dn.), whether it is the Prl. Civil Judge (Jr. Dn. ,), Hassan, the I Addl. Civil Judge (Jr. Dn. ,) Hassan or the II Addl. Civil (Jr. Dn. Civil Judge (Jr. Dn.), Hassan is liable to be set aside. Accordingly, the revision is allowed directing the learned Civil Judge (Jr. Dn.), whether it is the Prl. Civil Judge (Jr. Dn. ,), Hassan, the I Addl. Civil Judge (Jr. Dn. ,) Hassan or the II Addl. Civil (Jr. Dn. ,) Hassan to restore O. S. No. 87/94 and dispose of the suit in accordance with law. The petitioner is directed to appear before the trail court on 5. 4. 2004. the trial court shall issue notice to the respondents an dispose of the matter in accordance with law. --- *** --- .