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2006 DIGILAW 872 (GAU)

Nazrul Islam Borbhuiya v. Yakub Ciddikie

2006-09-15

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. This Civil Revision under Article 227 of the Constitution of India is directed against the judgment and order dated 14.10.2004 passed by the learned Additional District Judge, Shillong in FAO (Misc Civil Appeal) No. 9 of 2003 upholding the order dated 28.11.2003 passed by the learned Munsiff, Shillong, in Title suit No. 14 of 1989 nonsuiting the Petitioner by refusing to condone the delay in filing the application restoration of the said suit. 2. Upon hearing Mr. K.S. Kynjing, the learned senior counsel for the Petitioner and Mr. H.S. Thangkhiew, the learned Counsel for the Respondent and, after perusing the impugned judgment and order and other materials on record, I am of the view that the trial court ought to have restored the suit after condoning the delay. The genesis of the case is the order dated 20.12.2001 passed by the learned Munsiff, Shillong, wherein the dismissed the suit of the Petitioner in the following manner: 20.12.2001. Seen the hazira only filed for the Plaintiff. The Defendant is present. The Plaintiff is physically absence and no step is taken till date. Hence the suit is hereby dismissed on ground of default of the Plaintiff. Consequent upon dismissal, this suit stand disposed off. The aforesaid order goes to show that the suit was dismissed in default of the prosecution on the ground that no step was taken by him till date. I have carefully gone through all the orders passed by the learned Munsiff, Shillong on and from 14.5.99 when the case record was received by him after remand from this Court. What step the Petitioner was required to take on that fateful day is not exactly discernible from the aforesaid order dated 20.12.2001. On 17.10.2000, the learned Munsiff had already closed the filing of the show cause by the Plaintiff against the petition dated 4.7.99 filed by the Respondent (the Defendant No. 1) for rejecting the written statement filed by the Defendant No. 2. As per the record, as on 17.10.2000, it is thus clear that the Petitioner was prohibited from filing his show-cause statement against the petition dated 4.6.99 and therefore he was not really required to take any other step. As per the record, as on 17.10.2000, it is thus clear that the Petitioner was prohibited from filing his show-cause statement against the petition dated 4.6.99 and therefore he was not really required to take any other step. On the other hand, the case was adjourned by the learned Munsiff from time to time from 17.10.2000 onwards not for the purpose of hearing but for production of the record relating to TCA No. 9(H) 89 requisitioned by him from the court of the learned District and Sessions Judge, Shillong. This is borne out by the orders dated 17.12.2000 and dated 20.12.2000. In other words, the undisputable fact is that the date on which the suit was dismissed was not a date fixed for hearing of the suit but for production of the record. The question to be considered then is whether the suit was dismissed in default of the Petitioner under the provisions of Order IX Rule 8 of the Code of Civil Procedure? 3. Under Order IX Rule 8, it is provided that where the Defendant appears and the Plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the Defendant admits the claim, or part thereof, in which case the court shall pass a decree against the Defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. This provision abundantly shows that a suit cannot be dismissed under his provision due to the absence of the Plaintiff unless the date is fixed for hearing of the suit. Order IX Rule 9 prescribes that where a suit is wholly or partly dismissed under Rule 8, the Plaintiff shall be precluded from 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 when the suit was called on for hearing, the court shall make an order setting aside the dismissing upon such terms as to costs or otherwise as it thinks fit, and shall appoint a date for proceeding with the suit. Therefore, the remedy for the Plaintiff whose suit has been dismissed in default under Order IX Rule 8 is provided under Order IX Rule 9. The period of limitation for an application for restoration of a suit which has been dismissed in default under Order IX Rule 8 is prescribed in Article 122 of the Limitation Act, 1963. A cursory look at Article 122 of the Limitation Act will show that the period of limitation of 30 days would run from the date of dismissal of the suit and not from the date of knowledge of the dismissal of the suit. If the suit of the Plaintiff was dismissed in default in terms of the provisions of Order IX Rule 8, it is obvious that the period of limitation would expire on 15.10.2001 and the Petitioner, having failed to file his application for restoration within 30 days from 15.9.2001, would be precluded from filing such application unless he can explain the delay by showing sufficient cause as provided in Section 5 of the Limitation Act. 4. In the instant case, the trial court held that the Petitioner failed to show sufficient cause for the delay and, as such, his application for condonation of delay could not be allowed. This view was upheld by the learned Additional District Judge when the order was carried to appeal before him by the Petitioner. As stated by me earlier, if the application for restoration was made under Order IX Rule9 of the code beyond the period of limitation prescribed by Article 122 of the Limitation Act, the refusal to condone the delay under Section 5 of the Limitation Act by the trial court in exercise of its discretionary jurisdiction would not ordinarily be interfered with in a Revision petition unless there is an improper exercise of jurisdiction. Whether or not there is sufficient cause for condonation of delay, is a matter which is solely within the discretion of the trial court to decide, which can be interfered with by this Court only if the trial court has acted with material irregularity or has exceeded or has failed to exercise its jurisdiction. If the application of the Petitioner for restoration really falls within the purview of Order IX Rule 9 of the code, I do not find any ground for interference in the order refusing to condone the delay as upheld by the impugned order. If the application of the Petitioner for restoration really falls within the purview of Order IX Rule 9 of the code, I do not find any ground for interference in the order refusing to condone the delay as upheld by the impugned order. Whether the application for restoration of the suit is one filed under Order IX Rule 9 of the Code is a question which requires deeper examination by this Court. 5. As found by me earlier, the suit was dismissed by the trial court on the date fixed for production of TCA No. 9/1989 and not for the date of hearing of the suit. In Rahimuddin Sheikh and Ors. v. Sarifan Nesa and Ors. AIR 1954 Ass 92 and Vishwanath Naganath Andage v. Mhadeo Sultanappa Waghmode AIR 1964 Bom 40 ., it has been held that even when a suit was dismissed for non-appearance, Order IX Rule 9 would have no application if the date of hearing had not been fixed or if the same had not been notified to the Plaintiff and that an application for restoration of such a suit would fall under Section 151 of the code and the period of limitation would be 3 (three) years under Article 137 of the Limitation Act, 1963 and not 30 (thirty) days under Article 122 of the Limitation Act, 1963. The instant case is obviously not one in which the suit was dismissed for the non-appearance of the Petitioner on a date fixed for hearing of the suit but for production of the record relating to TCA No. 9/1989. That being the factual position borne out by the facts on record, the period of limitation for the application for restoration of the suit filed by the Petitioner would be 3 (three) years from the date of dismissal of the suit. Under the circumstances application for restoration of the suit filed by the Petitioner was clearly within the period of limitation prescribed by Article 137 of the Limitation Act, 1963. It is true that the Petitioner himself was equally responsible for this misadventure in the sense that he ought to have filed his application for restoration under Section 151 of the Code and not under Order IX Rule 9 of the Code. 6. It is true that the Petitioner himself was equally responsible for this misadventure in the sense that he ought to have filed his application for restoration under Section 151 of the Code and not under Order IX Rule 9 of the Code. 6. Be that as it may, there can be no doubt that if the source of jurisdiction/power is traceable, the fact that a party invokes a wrong provision of law or jurisdiction cannot be a ground for non-suiting him, or the same cannot prevent a competent court of jurisdiction from exercising such jurisdiction/power to grant appropriate relief. In the view that I have taken, both the lower courts have apparently failed to exercise their jurisdiction in not restoring the suit to file for hearing on merits and in non-suiting the Petitioner on the ground that the Petitioner could not give satisfactory explanation of the delay in filing the application for restoration of the suit. Moreover, the dismissal of the suit of the Petitioner on 20.12.2001 cannot be sustained in law inasmuch as the reason for the dismissal of the suit stated by him in the order is apparently non-existent. The Petitioner was not on that day required to take any step. As noted earlier, that day was fixed for production of record relating to TCA No. 9/1989 which was in the custody of the court of the District and Sessions Judge, Shillong, and the same could not have been produced by the Petitioner. Under the circumstances, the order dismissing the suit is arbitrary, without jurisdiction and also betrays non-application of mind on the part of the learned Munsiff. The supervisory jurisdiction of this Court under Article 227 of the Constitution is exercised for keeping the subordinate courts within bounds of their jurisdiction, when it is found that a subordinate court has acted (I) without jurisdiction, or (ii) has failed to exercise a jurisdiction which is available, or (III) where there is jurisdiction but has acted in a manner not permitted by law and failure of justice or grave injustice has been occasioned thereby. In the instant case, due to the improper exercise of jurisdiction by both the lower courts, grave miscarriage of justice has been occasioned inasmuch as the Petitioner, who cannot be accused of deliberate negligence or inaction in prosecuting his case, has been non suited. In the instant case, due to the improper exercise of jurisdiction by both the lower courts, grave miscarriage of justice has been occasioned inasmuch as the Petitioner, who cannot be accused of deliberate negligence or inaction in prosecuting his case, has been non suited. In that view of the matter, a case is made out by the Petitioner for the interference of this Court under Article 227 of the Constitution of India. 7. Resultantly, this Revision petition is allowed. The impugned judgment and order dated 14.10.2004 passed by the learned Additional District Judge, Shillong in MAF No. 9 of 2003 and the orders dated 20.12.2001 and 28.11.2003 passed by the learned Munsiff, Shillong in TS No. 14(H) of 1989, are set aside. TS No. 14(H) of 1989 is hereby restored to the file of the learned Munsiff, Shillong who shall now proceed with the suit and dispose of the same in accordance with law from the stage in which the suit was dismissed, preferably, within 6(six) months from the date of receipt of the judgment and order. However, on the facts and circumstances of the case, the parties are directed to bear their own costs. Send down the LC record immediately. Petition allowed