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2012 DIGILAW 1248 (PNJ)

Parkash Kaur v. Jaswant Singh

2012-09-19

A.N.Jindal

body2012
JUDGMENT Mr. A.N. Jindal, J.: - This petition has arisen out of the order dated 30.01.2009 (Annexure P-16) passed by the District Judge, Fatehgarh Sahib, accepting the appeal preferred by the appellants-respondents (hereinafter referred as ‘the respondents) against the order dated 23.12.2005 passed by the Additional Civil Judge (Senior Division), Amloh, declining the application of the respondents for restoration of the application under order 9 Rule 13 CPC. 2. The factual background of the case is that Parkash Kaur-petitioner (hereinafter referred as ‘the petitioner’) had filed a Civil Suit No.123 dated 20.03.1997 for possession by way of specific performance of the agreement to sell and permanent injunction against Ranjit Singh-predecessor- in-interest of the respondents, which was decreed exparte on 06.12.1997. Thereafter, the petitioner had filed an execution petition, whereupon defendant No.1-Ranjit Singh filed an application for setting aside the aforesaid exparte judgment and decree, which was contested by the petitioner and she filed reply to the same on 08.04.2000. Issues were also framed on the same day. On 19.10.2001, counsel for defendant No.1-Ranjit Singh pleaded no instructions on his behalf. As such, the application for setting aside the exparte decree was dismissed. Defendant No.1-Ranjit Singh died on 20.11.2001. Thereafter, legal heirs of Ranjit Singh (respondents herein) filed an application for restoration of the application under Order 9 Rule 13 CPC. They also filed objections in the execution petition on 28.08.2002. In the execution proceedings, the Court had also ordered for execution of the sale deed through Local Commissioner. The application for restoration of the application under Order 9 Rule 13 CPC was also dismissed vide order dated 23.12.2005 (Annexure P-18). Appeal against the said order was allowed by the District Judge, Fatehgarh Sahib, on 30.01.2009, which has been challenged by way of present revision petition. 3. Learned counsel for the petitioner has raised a prime issue that when the suit or an application for restoration of application under Order 9 Rule 13 CPC is dismissed for non appearance of the party pursuing, then such order was not amenable to appeal and the said order is not covered under Order 43 Rule 1 (c) and 1 (d) of CPC. In this regard, he has placed reliance on a Full Bench judgment of the Hon’ble Madhya Pradesh High Court in a case Nathu Prasad Vs. Singhai Kapur Chand, AIR 1976 Madhya Pradesh 136 (FB). In this regard, he has placed reliance on a Full Bench judgment of the Hon’ble Madhya Pradesh High Court in a case Nathu Prasad Vs. Singhai Kapur Chand, AIR 1976 Madhya Pradesh 136 (FB). Consequently, he urged that the order dated 19.10.2001 passed by the Additional Civil Judge (Senior Division), Amloh, dismissing the application for setting aside the exparte decree, in default, was not appealable. As such, the order dated 30.01.2009 passed by the District Judge, Fatehgarh Sahib, is not sustainable in the eyes of law. 4. To the contrary, learned counsel for the respondents has urged that the order, against which the appeal was filed before the District Judge, Fatehgarh Sahib, was appealable and the order passed by the Appellate Court is quite valid and the revision is bound to fail. 5. Heard. As regards the maintainability of the appeal against the order passed on the application for restoration, the Hon’ble Madhya Pradesh High Court in Nathu Prasad’s case (supra), has observed as under:- “25. Let it be mentioned for removal of doubt, and for making the picture complete that when an application (‘A’) under Order 9 Rule 9 CPC for restoration of the suit is rejected and an application (‘B’) is made for restoration of the application (‘A’) although such application (‘B’) also falls within the purview of Order 9 Rule 9 read with Section 141 CPC, yet the order rejecting the application (‘B’) does not fall within Order 43 Rule 1 (c) inasmuch as the application (‘B’) is not “for an order to set aside the dismissal of a suit”; it is for an order to set aside dismissal of the application (‘A’). 26. We may now sum up the conclusions we have reached on the above discussion:- (i) When application (‘A’) under Order 9 Rule 9 CPC is itself dismissed for default of the plaintiff/petitioner’s appearance, an application (‘B’) lies under Order 9 Rule 9 read with Section 141 of the same Code, for restoration of the application (‘A’). In order to succeed in this proceeding (‘B’), the petitioner has to satisfy the Court that he was prevented by sufficient cause from appearing on the date when the application (‘A’) was called on for hearing. (ii) The order of dismissal for default of the application (‘A’) is appealable under Clause (c) of Rule 1 Order 43 CPC. In order to succeed in this proceeding (‘B’), the petitioner has to satisfy the Court that he was prevented by sufficient cause from appearing on the date when the application (‘A’) was called on for hearing. (ii) The order of dismissal for default of the application (‘A’) is appealable under Clause (c) of Rule 1 Order 43 CPC. (iii) Both the above remedies, i.e. application under Order 9 Rule 9 and appeal under Order 43 Rule 1 (c) are concurrent. They can be resorted to simultaneously. Neither excludes the other. The scope of each of the above proceedings is, however, different. (iv) When an appeal (second remedy) is decided, one way or the other, the order of dismissal for default appealed from gets merged in the order of the appellate Court, so that thereafter, the application (‘B’) under Order 9 Rule 9 becomes infructuous. When it comes to the notice of the appellate Court that an application has also been made under Order 9 Rule 9 for restoration, the appellate Court may do well to postpone the hearing of the appeal until the decision of the application under Order 9 Rule 9 CPC. (v) No appeal lies from an order rejecting an application (‘B’) for restoration of application (‘A’), which latter application was for restoration of the suit. (vi) As observed by their Lordships of the Supreme Court in Mahadeolal Kanodia V. Administrator General of West Bengal, AIR 1960 SC 936 and Jaisri v. Rajdewan, AIR 1962 SC 83 , if a Division Bench does not agree with another Division Bench in a decision rendered earlier, the Second Division Bench must either follow the earlier decision or place the matter before the Chief Justice for being referred to a larger Bench. But, the second Division Bench cannot take up itself the task of holding that the decision of the first Division Bench was wrong.” 6. In Nathu Prasad’s case (supra), the Hon’ble Madhya Pradesh High Court has observed that when an application for restoration of the suit/application was dismissed, then no appeal was maintainable before the District Judge, but only a revision was maintainable. 7. As regards the limitation to file an application for restoration, in view of explanation to Section 141 CPC added by way of amendment, is 30 days as the said application also amounts to an application under Order 9 CPC. 7. As regards the limitation to file an application for restoration, in view of explanation to Section 141 CPC added by way of amendment, is 30 days as the said application also amounts to an application under Order 9 CPC. Similar observations were made in Nathu Prasad’s case (supra) and the said view was affirmed by a Division Bench of this Court in Bhajan Singh Vs. Ganeshi Devi, Vol. LXXX 1978 PLR 415 . Before amendment to Section 141 CPC, there were conflicting views and one view held such application for restoration to be maintainable under Section 151 CPC and thus, time limit to file the same was held to be three years under Article 137 of the Limitation Act. But, after amendment, the addition of explanation to Section 141 CPC makes it clear that application for restoration would be under Order 9 CPC and not under Section 151 CPC. Thus, limitation to file application for restoration is 30 days from the date of dismissal (Article 122 of the Limitation Act.). Further, it would be absurd situation that the limitation is 30 days for filing application under Order 9 Rule 9 CPC, but when the same is itself dismissed in default, the application for its restoration under Order 9 Rule 9 CPC, the time limit is three years. Thus, clearly the second application is under Order 9 Rule 9 CPC in view of the explanation to Section 141 CPC and its limitation is 30 days under Article 122 of the Limitation Act. Further, in view of the judgment of the Hon’ble Supreme Court in Vidya Charan Shukla Vs. Khub Chand Baghel, AIR 1964 SC 1099 , the provisions of Limitation Act and Civil Procedure Code are to be read together since both the statutes deal with procedural law. It is well established that the Limitation Act and the Code of Civil Procedure Code are to be read together because both are statutes relating to procedure and they are in pari material and therefore, to be taken and construed together as one system as explanatory to each other. The same view has been taken by the Hon’ble Jammu and Kashmir High Court in case J&K SIDC Ltd. Vs. Bank of Maharashtra, AIR 2004 J&K 20 and the Hon’ble Calcutta High Court in case Hazi Rustam Ali Vs. Emannudin Khan, AIR 1981 Calcutta 81. 8. The same view has been taken by the Hon’ble Jammu and Kashmir High Court in case J&K SIDC Ltd. Vs. Bank of Maharashtra, AIR 2004 J&K 20 and the Hon’ble Calcutta High Court in case Hazi Rustam Ali Vs. Emannudin Khan, AIR 1981 Calcutta 81. 8. Thus, while examining the case from any angle, the impugned order being perverse is not sustainable in the eyes of law. 9. As such, this petition is accepted; the impugned order is set aside and the order dated 23.12.2005 passed by the Additional Civil Judge (Senior Division), Amloh, is affirmed. ---------0.B.S.0------------