IMPORTANT POINT
An application for restoration of suit dismissed in terms of Rule 35 of Chapter X of Original Side Rules of Calcutta High Court was maintainable even on order of dismissal being drawn up, completed and filed.

Headnote:(i) Civil Procedure Code, 1908 — Order 23 Rules 3 and 4 — Suit for declaration that plaintiff was lawful tenant in suit property and injunction — Plaintiff died during pendency of suit and his legal representatives were brought on record as additional plaintiffs 1(a) to 1(e) — Suit came to be dismissed for non-prosecution in terms of Rule 35 of Chapter X of Original Side Rules (High Court of Calcutta) — Application for restoration of suit — Trial Judge dismissed application as not maintainable — Appeal — On 20-7-2002 when application for restoration was pending, petitioner No. 1(e) i.e. plaintiff 1(e), one of legal representatives of original plaintiff died — No steps were taken to bring on record legal representatives of said petitioner — Order rejecting application by High Court was made on 2-7-2003 and SLP was filed on 17-7-2003, both after death of LR — Relief of reopening suit could not be granted to applicants since its dismissal had become final against deceased petitioner 1(e) — Contention that other legal representatives substantially represented the estate of original plaintiff could not take the appellants far.
       Held : The contention that the other legal representatives substantially represented the estate of the original plaintiff cannot take the appellants far. The question is not whether the estate of the original plaintiff is substantially represented or not, the question is, what is the consequence of the death of one of the legal representatives of the original plaintiff pending the application for restoration of the suit that stood dismissed. The decree of dismissal as against that legal representative has become final. Therefore, the court cannot pass an inconsistent decree in the same suit by granting a decree to the other legal representatives. This is the position adopted by this Court in the decision relied on by the learned counsel for the respondents and followed subsequently by this Court in Ram Sarup Vs. Munshi & Ors. [(1963) 3 SCR 858]. Thus, the preliminary objection has to be upheld and it has to be held that the relief of re-opening the suit cannot be granted to the appellants since its dismissal has become final as against S.M. Naqi, one of the legal representatives of the original plaintiff.(Para 7)
       Coming back to the case on hand, since we find that in case we were to allow this appeal and restore the suit, that will result in an order inconsistent with the order dismissing the suit as against S.M. Naqi, one of the legal representatives of the deceased original plaintiff, which has become final, we are unable to grant the appellants any relief. Thus, we decline to interfere with the decision of the High Court. We may also notice that the appellants have not acted bona fide in impleading the deceased co-plaintiff as a respondent in the Petition for Special Leave to Appeal as if he were alive and then seeking to bring on record his legal representatives in this Court. Thus, though on law, we are inclined to disagree with the High Court that the suit could not be restored, we decline to interfere with its decision for the reason mentioned above.(Para 13 and 14)
       (ii) Original Side Rules (High Court of Calcutta) — Rule 35 of Chapter X — Dismissal of suit for non-prosecution — Application for restoration with application for condonation of delay in filing application — Trial Judge dismissed application non-maintainable without going into merits of application taking a view that on expiry of 30 days from date of dismissal of suit for default and on the order of dismissal being drawn up, completed and filed, Court became functus officio — Appeal — Position adopted by High Court was not sustainable.
       Held : We also feel that the view of the Calcutta High Court, no doubt, backed by the procedure followed in that court and the practice of that court that once the order of dismissal is drawn up, completed and filed, the court loses its power to restore the suit in an appropriate case, seems to deprive the court of a power which every court has, of restoring a suit so as to enable the parties to contest the same on merits. It is even possible to argue, that the power to dismiss a suit for default, carries with it the power to restore that suit. That apart, in view of the power available under Section 5 of the Limitation Act to extend the period of limitation for making an application for restoration of the suit, the rigid view adopted cannot be said to survive. May be, the view that the order was a judgment and it was appealable under clause 15 of the Letters Patent, also induced the theory of the trial judge becoming functus officio on the order of dismissal being drawn up, completed and filed. After all, law of procedure is the handmaid of justice and Rule 35 of Chapter X of the Original Side Rules itself must be taken to confer a power on the trial judge to restore a suit which he had dismissed for default if sufficient cause in that behalf is shown especially in the context of Section 5 of the Limitation Act, 1963. The fact that the records have been consigned to the record room cannot interfere with the power of the court to do justice in a cause. We are therefore inclined to hold that the position adopted by the Calcutta High Court that on the expiry of the 30 days from the date of dismissal of a suit for default and on the order of dismissal being drawn up, completed and filed, the court becomes functus officio is not sustainable. (Para 12)

JUDGMENT

P.K. Balasubramanyan, J. — Leave granted.

1. The original plaintiff, Sheikh Mohammad Omer, the predecessor-in-interest of the appellants herein, filed the suit C.S. No.145 of 1983 in the High Court of Calcutta praying for a declaration that he was a valid and lawful tenant in respect of the plaint schedule premises and indicated in the plan annexed to the plaint, for a perpetual injunction restraining the defendants, the owner and those who were claiming under or through him from the interfering with his possession of the premises and for other consequential reliefs. The case of the plaintiff was that he had taken the suit premises on lease for being enjoyed along with the adjacent premises belonging to him and that on the expiry of the term of the lease which was for 25 years, the plaintiff continued to be a tenant from month to month and the owner and those claiming under or through him, were not entitled to interfere with his right as a tenant. The defendants, the owner and those claiming under or through him, resisted the suit by denying the claim of the plaintiff that he was a tenant from month to month and setting up a plea that on the expiry of the term of the lease relied on by the plaintiff, the plaintiff had abandoned the premises, the owner had taken possession of it and there was no subsisting tenancy in his favour as claimed by the plaintiff.

2. Pending suit, the plaintiff died and his legal representatives were brought on record as additional plaintiffs 1(a) to 1(e). The owner, defendant No.1 also died and his legal representatives were also brought on record.

3. For about 15 long years, it seems that the suit was not even listed. On 21.7.1999, the suit appeared in the scrutiny list of the Master under the Rules of the Original Side of the Calcutta High Court. No one appeared on behalf of the additional plaintiffs. The Master adjourned the suit to another date in the same month. On 29.7.1999, the suit again appeared before the Master in the scrutiny list. Again, there was no representation on behalf of the plaintiffs. The Master therefore directed that the suit be posted before the trial judge in the special list in terms of Rule 35 of Chapter X of the Original Side Rules.

4. Thus, the suit appeared in the special list of the Judge trying the cause on 30.8.1999. In spite of repeated calls, none appeared on behalf of the plaintiffs. The suit was hence dismissed for non prosecution in terms of Rule 35 of Chapter X of the Original Side Rules. For convenience, the said Rule can be set down hereunder:

"35. Disposal of suits for want of prosecution. Suits and proceedings which have not appeared in the Prospective List or in the Warning List or Peremptory List within six months from the date of institution, may be placed before a Judge in Chambers, on notice to the parties or their Advocates acting on the Original Side, to be dismissed for default, unless good cause is shown to the contrary, or be otherwise dealt with as the Judge may think proper."

Thus, the suit stood dismissed for default on 30.8.1999.

5. It is said that on 7.9.1999, the order of dismissal was drawn up, completed and filed. On 7.12.1999, the plaintiffs filed an application for restoration of the suit, after condoning the delay, if any, in making the application. The said application did not indicate under what provision the same was being filed. It was pleaded that there was no latches on the part of the plaintiffs and the suit happened to be dismissed for default under unfortunate circumstances. The delay had occurred because the plaintiffs were not made aware of the dismissal. The said application was opposed by the respondents to that application. It was contended that the application was not maintainable. The application was belated and that the trial Judge had become functus officio since the order of dismissal had attained finality by the same being drawn up, completed and filed on 7.9.1999 and that even otherwise, there was no ground m

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2006 Supreme(SC) 678

IMPORTANT POINTAn application for restoration of suit dismissed in terms of Rule 35 of Chapter X of Original Side Rules of Calcutta High Court was maintainable even on order of dismissal being drawn up, completed and filed.

Cases Referred (2)

IMPORTANT POINT
An application for restoration of suit dismissed in terms of Rule 35 of Chapter X of Original Side Rules of Calcutta High Court was maintainable even on order of dismissal being drawn up, completed and filed.