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2014 DIGILAW 2236 (BOM)

Rajendra v. Nitin Babarao Kadam

2014-11-05

S.B.SHUKRE

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JUDGMENT S.B. Shukre, J. 1. Heard. Admit. 2. Heard finally by consent. 3. This revision application is filed against order dated 08/8/2013 passed by Civil Judge, Senior Division, Amravati in Regular Misc. Judicial Case No. 74 of 2010. 4. I have heard Shri Deshpande, learned Counsel for the applicant and Shri Saboo, learned Counsel for respondent No. 1. None appears for non applicants No. 2 and 3 although duly served. 5. According to learned Counsel for the applicant, no sufficient cause for condoning the delay occurred in moving an application under Order IX rule 9 of the Code of Civil Procedure regarding restoration of the suit that was dismissed on 11/02/2009 was established by respondent No. 1 and, therefore, the delay ought not to have been condoned. He also submits that basically, the respondents have two remedies provided under Rule 4 Order IX C.P.C. and when respondent No. 1 had opted for the first remedy provided therein, i.e. of filing of fresh suit for the same cause of action, this suit came to be dismissed as being barred by limitation; the second remedy provided in Rule 4 cannot be availed of by respondent No. 1 as theory of election applies. He, therefore, submits that the trial Court has committed serious illegality in allowing the application for condonation of delay. 6. According to learned Counsel for respondent No. 1, there has been sufficient cause shown by respondent No. 1 in as much as in view of the observations of the Division Bench of Jharkhand High Court in the case of Smt. Karmi Devi Vs. Satendra Kumar Singh & another made in order dated 14/9/2009 (M. A. No. 381 of 2007), the remedies provided under Rule 4 are not mutually exclusive and both can simultaneously be taken resort to. 7. As regards the first contention that no sufficient cause has been shown by respondent No. 1, I find that the trial Court has taken into account the reasons given by respondent No. 1 for the delay occurred in filing of the application for restoration of the suit in their proper perspective. The main reason cited was that the Advocate, who had filed another suit after dismissal of Civil Suit No. 315 of 2004 on behalf of respondent No. 1, gave wrong advise of filing fresh suit in stead of filing restoration application under Order IX Rule 4. The main reason cited was that the Advocate, who had filed another suit after dismissal of Civil Suit No. 315 of 2004 on behalf of respondent No. 1, gave wrong advise of filing fresh suit in stead of filing restoration application under Order IX Rule 4. It appears that this reason weighed with the trial Court and I am of the view that it is not without any justification. After all the Advocate, who had filed a fresh suit, one Mr. Mahesh Deshmukh, had also admitted by stating on oath; he had filed an affidavit; that a wrong advise, albeit, inadvertently was given by him. He appears to have stated that although the restoration application was a better remedy, he, on account of his inexperience on civil side, got the impression that fresh suit would be a better option. This explanation given by respondent No. 1 as well as his erstwhile Advocate has been properly considered by the trial Court and accordingly the trial Court has found that there lay a sufficient cause in enabling the Court to condone the delay. I do not think that the reasoning of the trial Court in the aforestated facts and circumstances of the case can be faulted with as being perverse or illegal. The trial Court can also not be said to have acted with material irregularity in accepting the reason given for explanation for the delay as reasonable. Therefore, I find no substance in the attack of learned Counsel for the applicant against the impugned order on this count. 8. As regards the second submission that the remedies provided in Rule 4 Order IX C.P.C. do not go simultaneously in the sense that once the applicant chooses one remedy, he is estopped from simultaneously prosecuting another remedy, I must say that the Division Bench of Jharkhand High Court in the case of Smt. Karmi Devi (supra), after giving its thoughtful consideration to the provisions of Rule 4 Order IX C.P.C. as well as the view taken by Allahabad High Court in the case reported as AIR 1926 All 678, has found that when the suit is dismissed under the provisions of Rule 2 or Rule 3 Order IX, two remedies are provided for curing the adverse consequences and these two remedies can be prosecuted simultaneously and would not exclude either of them. The view so taken by the Jharkhand High Court, which is consistent with the view taken by Allahabad High Court, commends to me. There is nothing in the language of Rule 4, which precludes the Court from interpreting the provision in the manner as has been done by the Division Bench of Jharkhand High Court. I, therefore, find that the remedies provided under Rule 4 Order IX can be resorted to simultaneously and cannot be held to be excluding each other. 9. Theory of election, as submitted by the learned Counsel for the applicant, would apply only when the second remedy is provided in the eventuality of the first remedy not being opted for. In Rule 4, the language used is such that it makes intention of the legislature loud and clear. It is marked by the use of the word, "or" in between the two expressions providing two alternate remedies, namely to bring a fresh suit or to apply for an order to set the dismissal aside. The word "or" has been used in conjunctive sense to link alternatives which indicates that the intention of the legislature is to provide for simultaneous or alternate and not mutually exclusive remedies. Therefore, on this count also the impugned order cannot be found to be illegal. 10. Learned Counsel for the applicant has referred to me the case of Balwant Singh (dead) Vs. Jagdish Singh & others AIR 2010 SC 3043 in order to support his contention that in this case no sufficient cause has been shown. 11. I have already found that in the facts and circumstances of the case, the trial Court has found that sufficient cause has been shown by non applicant No. 1 and that the finding recorded by the trial Court in this regard cannot be said to be perverse, arbitrary or illegal. Therefore, with due respect, the case of Balwant Singh would not be applicable to the facts and circumstances of the instant case. 12. In the circumstances, this application deserves to be dismissed. However, all the objections of the applicant as regards absence of sufficient cause for restoration of the suit would have to be kept open for being decided on merits by the trial Court and also the tenability of the restoration of the application will have to be kept open for decision on merits. 13. Accordingly, the application stands dismissed. However, all the objections of the applicant as regards absence of sufficient cause for restoration of the suit would have to be kept open for being decided on merits by the trial Court and also the tenability of the restoration of the application will have to be kept open for decision on merits. 13. Accordingly, the application stands dismissed. All objections as regards tenability of restoration application and also absence of sufficient cause are kept open, which, if taken, shall be decided on their own merits by the trial Court. No order as to costs.