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2005 DIGILAW 321 (JK)

Kulwant Kour v. Radhey Shyam (Dr. )

2005-11-23

PERMOD KOHLI

body2005
1. This appeal is directed against the order dated 29.12.2001 passed by the learned Additional District Judge (Matrimonial Cases), Jammu, whereby the trial Court has declined the restoration of the application for setting aside the ex-parte decree preferred by the present appellant and earlier consigned to record for non-prosecution. 2. The present appeal has been preferred under Order-XLIII, Rule-1 (c) of the CPC. Mr. L.K. Sharma, learned Advocate appearing for respondent raised preliminary objection regarding the maintainability of the appeal. With a view to canvas his submission, he has relied upon AIR 1963 Jammu and Kashmir 12, Kaviraj Mohan Singh versus Shiv Ji Bhagati, wherein the Honble Division Bench of this Court has held: - "Order 43 Rule 1 (c) of the Code of Civil Procedure runs as under: "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." 3. A careful analysis of this provision clearly indicates that an appeal would lie only against an order under Order 9 Rule 9 C.P.C. rejecting an application for an order to set aside the dismissal of a suit. Clause (c) therefore, clearly postulates that there must be an order dismissing a suit for default and application to set aside that order. In the instant case, the matter does not seem to be covered by Order 43 Rule 1 (c) C.P.C. in terms. Even if the application is restored the suit stands dismissed because then the other application which was dismissed for default has to be considered. 4. We do not think that the legislature intended to make an order of the type we have in this case also appealable because this order itself seems to have been passed under Section 151 C.P.C. The Civil Procedure Code contains a provision for filing an application to set aside an order dismissing a suit for default. But there is no provision at all under which an application can be given to restore such an application if it is itself dismissed for default. But there is no provision at all under which an application can be given to restore such an application if it is itself dismissed for default. This can only be done by the courts under the inherent powers contained in Section 151 C.P.C. if, therefore, a Court can entertain an application for restoration of an application dismissed for default under inherent powers, there is no reason to suppose that it cannot restore that application also if it is dismissed for default. The power which gives the court a discretion to entertain an application must necessarily give the residuary powers to pass other orders ex debito justitiae. Thus we are un-able to construe an order dismissing an application which has itself been dismissed for default as an order dismissing the suit itself so as to be appealable under Order 43 Rule 1 (c) C.P.C." 5. The aforesaid dictum of the Honble Division Bench judgment is binding upon this Court. Thus, in view of the aforesaid judgment the application for restoration of the application dismissed for default of appearance is maintainable under section 151 of the CPC. Therefore, any order passed is revisable under section 151 of the CPC. In view of the above, this appeal is treated as revision because this Court has got revisional jurisdiction also. 6. Other objection raised by Mr. L.K. Sharma, learned Advocate for respondent is that the appeal having been treated as revision, the order impugned herein should not be interfered with. 7. I have considered the order impugned. Briefly stated facts as emerge from record are that a matrimonial dispute was pending in the Court below where the present petitioner is respondent. Petitioner appeared and contested the petition and then disappeared from the proceedings. An ex-parte decree came to be passed in her absence on 06-07-1999, a copy of the judgment has been placed on record. The petitioner made an application for setting aside the ex-parte decree. This application came to be dismissed for default of appearance on 21-06-2000. The petitioner herein filed an application for restoration of the application for setting aside the ex-parte decree on 3rd July 2000. This application was resisted by the respondent. The petitioner made an application for setting aside the ex-parte decree. This application came to be dismissed for default of appearance on 21-06-2000. The petitioner herein filed an application for restoration of the application for setting aside the ex-parte decree on 3rd July 2000. This application was resisted by the respondent. The trial Court allowed the parties to lead the evidence and finally the impugned order was passed dismissing the application of the petitioner for restoration of the application for setting aside the order dated 21-6-2000 passed in the earlier application which was dismissed for default of appearance. 8. From the impugned order, it appears that main ground urged by the petitioner before the trial Court was that she is a Government employee serving as a Warden in ANMT School, Gandhi Nagar, Jammu, where she is the Incharge of Girls Hostel and her duties are almost around the clock and she was unable to contact her counsel to prosecute her case effectively. The petitioner appeared in the witness box and also produced another witness namely Zohra Bano, who was Assistant Warden in the same Institution. Petitioner in her statement stated that due to nature of the duties assigned to her, she could not contact her counsel and earlier also some explanation was sought from her by the Department where he is serving. It is specifically stated that she being the Incharge of the Girls Hostel, she was unable to contact her counsel for effective prosecution of the application preferred by her. The witness produced by the applicant also made a statement on similar lines. The respondent also appeared as a witness in the restoration proceedings. The respondent also appeared as a witness in the restoration proceedings. The respondent has made a statement regarding the past conduct of the petitioner and it is stated that the petitioner is in habit of making applications one after the other. He also stated that earlier also application came to be dismissed due to the negligence of the petitioner. It is further stated that petitioner wants to engage the respondent in litigation, so that he does not settle in life. It is also mentioned that the petitioner is attending her duties regularly. 9. He also stated that earlier also application came to be dismissed due to the negligence of the petitioner. It is further stated that petitioner wants to engage the respondent in litigation, so that he does not settle in life. It is also mentioned that the petitioner is attending her duties regularly. 9. The matrimonial Court rejected the application on the ground that the only motive for making this application appears to be of prolonging the litigation, so that real dispute between the parties is not settled. It is appropriate to quote the relevant observation of the Court below which appears to have persuaded the trial Court to pass the impugned order: - "From the statement of the non-applicant, it is amply clear that the applicant is in habit of appearing and then dis-appearing from the proceedings as is evident from the record also which was called from records for perusal. This court is satisfied that the only motive of the applicant appears to be of prolonging the litigation, so that the real dispute between the parties is not settled she has succeeded to some extend on that score as the parties are litigating for a couple of years. 10. It is settled law that in revisional jurisdiction, the Court is not required to re-appreciate the evidence and return its own findings. However, it is also equally a settled proposition of law that the Court while exercising revisional jurisdiction is required to see that any order subject-mater of challenge before it does not cause failure of justice. The Court while exercising revisional jurisdiction is also empowered to interfere, if the Court below has exercised its jurisdiction illegally or with material irregularity. 11. From the observation made by the trial Court, it appears that the Court has passed the impugned order dismissing the application of the petitioner for restoration only on the ground that the petitioner has the motive to prolong the litigation. What is the basis of such an observation is not forthcoming from the record as also from evidence recorded by it. The Court has drawn inferences which are not borne out from the record. 12. Apart from that, the petitioner has appeared in the witness box and disclosed compelling circumstances which prevented her from appearing, on the date of dismissal of application. Even the witness produced by the petitioner has also supported her version. The Court has drawn inferences which are not borne out from the record. 12. Apart from that, the petitioner has appeared in the witness box and disclosed compelling circumstances which prevented her from appearing, on the date of dismissal of application. Even the witness produced by the petitioner has also supported her version. The respondent before the trial Court made a statement only to hammer on the past conduct of the petitioner. There was absolutely no evidence to rebut the explanation tendered by the petitioner. 13. Under such circumstances, the finding recorded by the Court below that the petitioner has the motive to prolong the litigation is nothing, but perverse finding. In these circumstances, if order impugned is not interfered with there will be definitely failure of justice. It is a matrimonial dispute and the parties should be given appropriate opportunity to put forward their case as it is a question of their lives and relationship. In view of the above circumstances, I allow this revision petition and set aside the impugned order with the direction to the trial Court to restore application for setting aside the ex-parte decree dismissed for default of appearance on 21.06.2000. 14. Any observation made herein above shall not be construed as an expression of opinion on the merits of application for setting aside the exparte decree. 15. Parties are directed to appear before the Court below on 26-12-2005. Let the record of the trial Court be returned back forthwith. Disposed of, accordingly.