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SUPREME COURT OF INDIA
A.K. Sikri, Ashok Bhushan, JJ.
Jaswant Singh & Ors. – Appellants
Versus
Parkash Kaur & Anr. – Respondents
Civil Appeal No. 9409 of 2017 (Arising out of SLP (C) No. 28713 of 2013).
Decided On : 21-07-2017
Key Points: - The judgment discusses whether an appeal lies under Order 43, Rule 1 (c)/(d) from orders in miscellaneous proceedings governed by Order 9, Rule 9/Rule 13, citing Full Bench and various High Court decisions (!) (!) (!) (!) . - It holds that rights of appeal can extend to orders rejecting an application for restoration under Order 9, Rule 13, when such rejection is within the scope of "rejecting an application" under Order 43, Rule 1 (d) CPC, per Full Bench reasoning (!) (!) (!) . - It analyzes the maintainability of an appeal where the appellants filed a restoration application after the death of the defendant and whether the restoration petition is itself within Order 9, Rule 9 and Section 141 CPC (!) (!) (!) . - It concludes that the appeal filed against the order dated 23.12.2005 was maintainable under Order 43, Rule 1 (c) CPC and that the High Court erred in holding otherwise, placing emphasis on Section 141 CPC making Order 9 applicable to miscellaneous proceedings and the applicability of Order 43 to such appeals (!) (!) . - The decision discusses limitation and condonation for restoration applications under Article 122 and 137 of the Limitation Act, in the context of restoration petitions filed by the legal heirs after death of Ranjit Singh (!) (!) . - The matter is remitted to proceed with the restoration application under Order 9, Rule 13 CPC, with directions to decide within three months (!) . - It references that Section 141 CPC makes CPC procedures for suits applicable to miscellaneous proceedings "as far as it can be made applicable" (!) (!) (!) . - It cites Ram Chandra Aggarwal and other cases establishing miscellaneous proceedings are governed by CPC procedures including right of appeal, though substantive right to appeal must be statutory (!) (!) . - The final outcome: appeal allowed; judgment of High Court set aside; restoration matter to be decided on merits by Trial Court as directed by Appellate Court (!) .
JUDGMENT
Ashok Bhushan, J.
Leave granted.
2. This is an appeal by legal heirs of one Ranjit Singh who was defendant in Suit No. 123 of 1997 filed by Parkash Kaur, Respondent No. 1 praying for specific performance of an agreement dated 25.01.1995. The suit proceeded ex parte against the defendant and by judgment and order dated 06.12.1997 was decreed ex parte directing for specific performance of agreement in favour of respondent-plaintiff. Respondent-plaintiff was also directed to get the suit land redeemed from Defendant No. 2 with whom the suit property was mortgaged. The defendant No.1, Ranjit Singh filed an application dated 20.07.1999 under Order 9, Rule 13 C.P.C. praying for setting aside the ex parte decree dated 06.12.1997.
3. Case of the defendant in the application was that he was never served in the above case and he had no knowledge regarding pendency at any stage. When the application filed by Ranjit Singh, defendant was called on 19.10.2001, the learned counsel appearing for applicant-defendant made a statement that he had no instructions from the applicant. Consequently, the application filed under Order 9, Rule 13 C.P.C. was dismissed in default. Ranjit Singh died on 20.11.2001. Legal heirs of the Ranjit Singh, who are appellants in the present appeal, filed an application dated 21.08.2002 praying that application under Order 9, Rule 13 C.P.C. be restored and applicants be allowed to pursue this application and be also allowed to file written statement and contest the suit. The said application dated 21.08.2002 was objected by the plaintiff.
4. The Trial Court vide its order dated 23.12.2005, dismissed the application filed by the appellants dated 21.08.2002. Aggrieved by the order dated 23.12.2005 of Trial Court, an appeal was filed by the appellants under Order 43, Rule 1 C.P.C. read with Section 104 C.P.C.
5. Learned District Judge after hearing both the parties allowed the appeal, setting aside the order of the Trial Court and further restoring the application dated 20.07.1999 filed by the Ranjit Singh, defendant. Aggrieved by the judgment of Appellate Court, plaintiff filed a Civil Revision under Article 227 of the Constitution of India before the High Court.
6. The High Court by impugned judgment dated 19.09.2012 allowed the Revision setting aside the order of the District Judge and restoring the order dated 23.12.2005 of the Trial Court. The plaintiff raised the issue of maintainability of appeal of the appellants before the District Judge filed against the order dated 23.12.2005. It was submitted by the Revisionist that when the suit or application for restoration of application under Order 9, Rule 13 C.P.C. is dismissed for nonappearance of the parties pursuing, then such order was not amenable to appeal and the said order is not covered under Order 43, Rule 1 (c) or 1(d) of C.P.C.
7. Reliance was placed by learned counsel for the appellant on the Full Bench Judgment of the Madhya Pradesh High Court in Nathu Prasad v. Singhai Kapurchand, AIR 1976 MP 136. The High Court thus proceeded to examine the question of maintainability of the appeal and held that appeal filed by the appellant before the District Judge against the order of Trial Court dated 23.12.2005 was not maintainable. High Court has also observed that restoration application filed by the appellant was also barred by time.
8. The appellants aggrieved by the judgment of the High Court have come up in this appeal.
9. We have heard learned senior counsel Shri Dhruv Mehta, for the appellants and learned counsel, Shri Rajiv Kapur for respondent as well.
10. Learned counsel for the appellants in support of the appeal contends that High Court committed an error in holding the appeal filed by the appellant as not maintainable. He submits that learned District Judge has passed a just and equitable order setting aside the order, dismissing the application under Order 9, Rule 13 C.P.C. in default and reviving the said application for fresh consideration by the Tri
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