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2011 DIGILAW 469 (JK)

Bashir Ahmad Shooru v. Jawahar Lal Koul

2011-09-02

Mansoor Ahmad Mir

body2011
1. This revision is directed against the order dated 8.2.2011 passed by Principal District Judge, Srinagar in a motion made by respondent herein for revival of the proceedings in the suit, titled as Prem Nath Jalali v. Ghulam Mohammad & others (for short, impugned order), on the grounds taken in the memo of revision petition. 2. It appears that the said suit came to be consigned to records vide order dated 2.1.1992 on the ground of non-appearance of plaintiff. It is mentioned in the said order that all the Hindus have migrated from the Valley and that is why there was no representation on behalf of plaintiff and suit was consigned to records with liberty to the plaintiff to seek its revival whenever he approaches the court. Accordingly, the legal representatives of plaintiff, respondents herein laid a motion before the trial court for revival of proceedings which came to be allowed vide the impugned order. 3. Mr. Reshi, learned counsel for petitioners herein has argued that the order impugned is bad in law for the reason that the order of trial court consigning the suit to records is an order of dismissal in default and came to be passed strictly in terms of Order 17 Rule 2 of Code of Civil Procedure (for short, CPC). As the plaintiff did not move the restoration application within time, the trial court was not within its power to revive the proceedings. 4. It appears that it is not a case of dismissal in default and cannot be said to be an order in terms of Order 9 Rule 7 of CPC, but it is a simple order in terms of section 151 of CPC. The court after taking judicial note of the fact that all the Hindus have migrated thought it proper to consign the file to records with the observation that the suit can be revived when the plaintiff approaches the court and the said order was passed in presence of defendants-petitioners herein. They have not questioned the said order till the impugned order came to be passed. Thus, now they are estopped from taking a plea that the order consigning the suit to records is simplicitor an order of dismissal in default. If they were not contented with the order consigning the suit to records, they could have challenged the same at the relevant point of time. Thus, now they are estopped from taking a plea that the order consigning the suit to records is simplicitor an order of dismissal in default. If they were not contented with the order consigning the suit to records, they could have challenged the same at the relevant point of time. They accepted the order and enjoyed the benefits of said order, now cannot say that this is an order of dismissal in default and not an order consigning the suit to records. 5. The words "consigned to the records for default" came up for consideration before a Division Bench of this Court in Punjab Singh & others v. Teju & others, SLJ 1981 J&K 278 and their Lordships held that the order of consigning the case to records is not an order in terms of Order 17 Rule 2. It is apt to reproduce para-7 herein: "7. Now none of these Rulings are quite pertinent to the question before us. We have looked into such of these rulings as have been correctly cited by the court below and are not wholly irrelevant. Nila v. Punu and another, 1936 PLR 803 lays down that an order under Order 17 Rule 3 is resjudicata. Gobind Lal v. Baldev Singh, 12 PLR 1915, lays down that pleas not raised in an earlier suit between the same parties with regard to the same subject matter cannot be raised in a subsequent suit because of Sec. 11 of the Code of Civil Procedure. Vankatachalam v. Mahalakshman II R Madras 272, lays down that a decree passed on material existing on the record notwithstanding the default made by the plaintiff in producing evidence on his behalf will act as resjudicata. The remaining Rulings have no bearing on the matter before us. With the propositions adumbrated in these rulings there need be no quarrel but the proposition before us is quite different. It is whether the judgment between the parties dated 31st Baisakh 1978 can be interpreted to be an order on merits under Order 17 Rule 3. The remaining Rulings have no bearing on the matter before us. With the propositions adumbrated in these rulings there need be no quarrel but the proposition before us is quite different. It is whether the judgment between the parties dated 31st Baisakh 1978 can be interpreted to be an order on merits under Order 17 Rule 3. It is obvious that to attract the full force of Sec. 11 of the Code of Civil Procedure in the principle of "resjudicata" the issues in the earlier case should have been heard and finally decided by such Court." If this was not done there can be no "resjudicata" and there can be no order under order 17 Rule 3. The principle of resjudicata cannot be invoked without producing the matter decided. Now the court which disposed of the earlier suit did not only pretend to decide it but said in so many words that the file be consigned to the Record Room for default. There is here no question of an order under Order 17 Rule 3." 6. This Court in Mst. Hajira v. Mst. Hanifa, C. Revision Petition No. 50/1997 has held that the order came to be passed under section 151 CPC and suit was simply consigned to records, it was alive and can be called from records for further proceedings. It is apt to reproduce relevant portion of para-6 of the judgment herein: "6. From the perusal of the order referred to above, it seems that the suit has been only consigned to records and has not been dismissed. Had the order been that the suit is dismissed in default and ordered to be consigned to records, then it would be deemed that the suit was dismissed. Thus vide order dated 26.12.1995, the suit has only been consigned to records and not dismissed. The file is still alive and can be called from the records for further proceedings, in case the plaintiff or the court so desires." 7. This Court also in a case reported in 1979-1991 PLR J&K Rulings 418 has held that the order consigning the case to records (dakal daftar) is not an order of dismissal which would put an end to pendency of the suit. After such an order proceedings may be continued by filing an application by a party and question of limitation does not arise at all. 8. After such an order proceedings may be continued by filing an application by a party and question of limitation does not arise at all. 8. The order passed by the trial court (supra) has given liberty to the plaintiff to make an application and proceedings can be revived. Thus the limitation cannot come in their way. Even otherwise no period of limitation applies in an order under section 151 CPC. My this view is also fortified by a judgment of the Patna High Court in Somar Bhuiya v. Kapil Kumar, AIR 1974 Patna 289. 9. Mr. Reshi has argued that the proceedings cannot be revived in an order of dismissal. In support of his argument he made reliance upon a number of judgments reported in AIR 2003 SC 3527 , AIR 2002 SC 2436 , 2004 (1) SLJ 303, 2010 (3) JKJ [HC] 898, AIR 1981 SC 707 , AIR 1973 SC 2391 , AIR 1954 SC 340 , AIR 1964 SC 993 , AIR 2003 SC 1590 , AIR 1977 SC 282 , AIR 1995 SC 1010 , 2001 SLJ 211 and AIR 2004 SC 2093 . The said judgments are not applicable to the present case in view of the facts as discussed hereinabove. 10. In view of the above, the trial court has rightly passed the impugned order in the interest of justice and revived the proceedings. The impugned order is speaking one and needs no interference. This civil revision is, accordingly, dismissed.