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2006 DIGILAW 1045 (KAR)

SAVITHRI v. ESHWARA

2006-12-17

V.JAGANNATHAN

body2006
V. JAGANNATHAN, J. ( 1 ) HEARD the learned Counsel for the parties. ( 2 ) THE appellant is aggrieved by the dismissal of the petition filed under Order 9 R 9 of the Civil Procedure Code filed by him requesting the trial Court to set aside the order of dismissal passed in O. S. No. 2957 of 1984 and to restore the suit to its original position. ( 3 ) THE learned counsel Sri B. C. Seetharama Rao for the appellant submitted that the Trial Court dismissed the petition mainly on the ground that the petition ought to have been filed Under Order 22 R 9 of the Civil procedure Code seeking settling aside the abatement order passed and since the appellant filed the petition Under Order 9 Rule 9 of the Civil procedure Code, the Trial Court observed that the petition is misconceived and the second reason given by the Trial Court is that as the suit was dismissed as having become abated, the course open to the appellant was to file a petition Under Order 22 Rule 9 of the Civil Procedure Code and not under Order 9 Rule 9 of the Civil Procedure Code. It is on these reasoning, the Trial Court dismissed the petition. ( 4 ) THE learned Counsel for the appellant submitted that a perusal of the order sheet would go to establish that the case was posted on 2. 4. 97 for carrying out the amendment. As the amendment had not been carried out, the Trial Court dismissed the suit. It was also pointed out that there is also an endorsement in the order sheet that the decree drawn is not signed. Referring to the sa;id order of the Trial Court on 2. 4. 97 it was submitted that the case having been posted for carrying out the amendment, the Trial Court could not have dismissed the suit and more so it could not have observed that the suit stood abated. Further it was submitted that the filing of the petition under Order 9, Rule 9 of the Civil procedure Code though technically is not correct and the proper provision of law which ought to have been mentioned by the appellant is Order 22 rule 9 of the Civil Procedure Code yet the Trial Court could not have given undue importance to the mistake committed in mentioning the wrong provision of law. ( 5 ) THE learned Senior Counsel Sri S. P. Shankar for the respondents at the outset submitted that the appeal is not maintainable under Order 9 ,rule 9 of the Civil Procedure Code because the suit stood abated. The appellant ought to have proceeded under Order 22, Rule 9 of the Civil procedure Code and when there is a specific provision provided under the civil Procedure Code, it is not permissible to take recourse to any other provision of law and when the law requires a particular thing to be done in a particular manner, no deviation from that procedure can be permitted. In this connection, the learned Senior Counsel referred to the decision of the Apex Court reported in AIR 1999 SC 1281 (Babu Verghese and Others vs. Bar Council of Kerla and Others) and drew my attention to page No. 3 of the said decision. ( 6 ) THE other ground urged by the learned Senior Counsel is that the trial Court has dismissed the suit as having become abated not because the amendment was not carried out by the appellant, but because no application has been filed at the first instance by the appellant to bring the legal representatives on record and therefore the order of the Trial court does not call for any interference. ( 7 ) THE other submission made by the learned Senior Counsel is that two courses are open to the appellant ; one is that he can file a fresh application before the Trial Court under Order 22, Rule 9 of the Civil procedure Code seeking to set aside the order of abatement passed and the second choice left to the appellant is to file a fresh suit itself since no partition has been effected. ( 8 ) HAVING heard the submission made as above, the point for consideration is ; Whether the impugned order requires to be interfered with by this Court or not ? ( 9 ) IT is not in dispute that the suit was filed by the appellant seeking partition of a suit property. The Trial Court by its order dated 2. 4. 1997 had dismissed the suit and the observations made in this regard are as under: "amendment is not carried out. Suit is dismissed as LRs. of defendant are not brought on record and hence it abates". The Trial Court by its order dated 2. 4. 1997 had dismissed the suit and the observations made in this regard are as under: "amendment is not carried out. Suit is dismissed as LRs. of defendant are not brought on record and hence it abates". ( 10 ) THEREFORE, it is clear that the Trial Court has dismissed the suit and it also observes that the suit stood abated. Order 22, Rules 9 (1) provides that 'where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action'. But however, sub-section (2)provides that, if sufficient cause is shown, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. ( 11 ) THE appellant in view of the order passed by the Trial Court on 2. 4. 1997 ought to have proceeded under Order 22, Rule 9 of the Civil procedure Code seeking to set aside the abatement or dismissal of the suit. But however, the appellant filed the petition by mentioning the provision under Order9, Rule 9 of the Civil Procedure Code. Thus, there was a mistake committed while mentioning the provision of the Civil procedure Code. Nevertheless, the prayer made in the said petition is to set aside the order of abatement and to recall the dismissal order and to restore the suit on file. Therefore, the spirit of the petition is that the appellant's prayer before the Trial Court was to set aside the order of abatement and to recall the order of dismissal passed. Therefore, merely because a wrong provision of the Civil Procedure Code has been mentioned, the Trial Court could not have lost sight of the ultimate prayer that is made by the appellant in the petition filed by him. ( 12 ) THAT apart, it is a settled law that when the substantial question of justice is pitted against technicalities or procedures the Courts have always inclined to lean in favour of doing substantial justice to the case. ( 12 ) THAT apart, it is a settled law that when the substantial question of justice is pitted against technicalities or procedures the Courts have always inclined to lean in favour of doing substantial justice to the case. In other words, the procedure which is considered as the hand maid of justice should not be permitted to subvert or obstruct the course of law to render justice, and therefore, in my considered opinion, the Trial Court was in error in not noticing the above position of law and it has given undue importance to the technicalities in as mush as mere wrong mentioning of the provision of the Civil Procedure Code has been highlighted by the Trial Court, ignoring the fact that the appellant did in fact seek a prayer to set aside the abatement or dismissal of the suit. ( 13 ) AS far as the decision cited by the learned Senior Counsel is concerned, it is a settled law that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner and not at all. The said principle: of law laid down by the Apex Court was in the context of certain action to foe taken by the Bar Council of India, which are referred to at page 3 of the judgment and as the Bar Council of India did not adopt the modes mentioned therein, the Apex Court therefore made the above observation in the said case. ( 14 ) WHEREAS, in the case on hand, it is not the question of the appellant herein requiring to act in any particular manner prescribed under any statute, but what was required on the part of the appellant was to move the Trial Court by filing art application praying the Court to set aside the abatement or dismissal of the suit and this act was done by the appellant as could be seen from the prayer sought in the petition. The only flaw is wrong mentioning of the particular order of the Civil Procedure Code. Therefore, in my considered opinion, the decision referred above does not apply to the case on hand. ( 15 ) AS far as the choices open to the appellant are concerned, no doubt the learned Senior Counsel is right in submitting that the appellant has got two options before him. Therefore, in my considered opinion, the decision referred above does not apply to the case on hand. ( 15 ) AS far as the choices open to the appellant are concerned, no doubt the learned Senior Counsel is right in submitting that the appellant has got two options before him. Nevertheless Order 22, Rule 9 of the Civil procedure Code itself gives the appellant a right to move the Trial Court seeking to set aside the abatement or dismissal of the suit, I am of the view that having regard to the nature of the suit filed by the appellant, it is just and necessary to permit the appellant to continue the suit filed by him and in this regard the Trial Court will have to be directed to restore the suit to its original file to meet the ends of justice. ( 16 ) IN the result, the appeal is allowed. The impugned order of the trial Court is set aside and the Trial Court is further directed to restore the suit O. S. No. 2957 of 1984 to its original position and after giving both the sides and opportunity to lead their evidence. The Trial Court shall dispose of the matter in accordance with law preferably within a period of six months from the date of this order. Under the above circumstances, no costs. Since the learned Counsel for the parties also submits that the date be fixed for appearance of the parties, I direct the parties to appear before the Trial Court on 5. 12. 2006.