1. Suit for specific performance decreed ex parte — Application under Order 9 Rule 13 dismissed in default — Restoration application rejected — Appeal against rejection held not maintainable by High Court. (Para 2 , 3 , 4 , 5 , 6 )
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2017 Supreme(SC) 1114
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
Advocates Appeared:
For the Appellants :- Dhruv Mehta, Sr. Adv., P.N. Puri, Rakesh Chopra, Abhishek Puri, Ms. Reeta Dewan Puri, Advs.
For the Respondents:- Ms. Suresh Kumari, Ms. Divya Mishra, S.L. Aneja, Sanjay Kapur, Rajiv Kapur, Ms. Shubhra Kapur, Advs.
For the Appellants :- Dhruv Mehta, Sr. Adv., P.N. Puri, Rakesh Chopra, Abhishek Puri, Ms. Reeta Dewan Puri, Advs.
For the Respondents:- Ms. Suresh Kumari, Ms. Divya Mishra, S.L. Aneja, Sanjay Kapur, Rajiv Kapur, Ms. Shubhra Kapur, Advs.
An appeal is maintainable under Order 43, Rule 1(c) of the CPC against an order rejecting an application to restore a previously dismissed Order 9, Rule 13 application, as Section 141 CPC extends suit procedures to miscellaneous proceedings and "rejecting" includes dismissal in default.
Headnote:(A) Code of Civil Procedure, 1908 - Order 9, Rule 9 and 13 - Section 104 - Order 43, Rule 1(c) and (d) - Order 9, Rule 13 application dismissed in default - Application for restoration of the said application subsequently rejected - Maintainability of appeal - The words "rejecting an application" used in Order 43, Rule 1(c) and (d) are comprehensive and include dismissal for default, not just rejection on merits (Paras 21, 22, 33) - Right of appeal is not limited to cases decided on merit.
(B) Code of Civil Procedure, 1908 - Section 141 - Miscellaneous proceedings - Procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction - Explanation to Section 141 expressly includes proceedings under Order 9 - Miscellaneous proceedings initiated by an application to recall an order dismissing a previous application under Order 9, Rule 13 are akin to applications under Order 9, Rule 9 and the right of appeal is available under Order 43, Rule 1(c) (Paras 26-29, 40, 41, 57).
Facts of the case:
An ex parte decree was passed in a suit for specific performance. The defendant filed an application under Order 9, Rule 13 of the Code of Civil Procedure to set aside the decree, which was subsequently dismissed in default. The legal heirs of the deceased defendant filed an application to restore the dismissed Order 9, Rule 13 application. The Trial Court dismissed this restoration application on merits and limitation. This order was set aside by the Appellate Court. However, the High Court, in revision, set aside the Appellate Court's order, holding that an appeal against the Trial Court's order dismissing a restoration application was not maintainable under Order 43, Rule 1 of the Code of Civil Procedure.
Findings of Court:
The appeal filed by the appellants before the District Judge against the Trial Court's order dated 23.12.2005 was maintainable. The High Court erred in holding that such an appeal was not maintainable, as the restoration application was a miscellaneous proceeding referable to Order 9, Rule 9, and its rejection is appealable under Order 43, Rule 1(c).
Issues: Whether an appeal under Order 43, Rule 1 of the Code of Civil Procedure is maintainable against an order rejecting an application for the restoration of an application under Order 9, Rule 13 that had been dismissed in default.
Ratio Decidendi: The phrase "rejecting an application" in Order 43, Rule 1(c) and (d) encompasses dismissal for default. Under Section 141 of the Code, the procedure for suits is applicable to miscellaneous proceedings. An application to restore an Order 9, Rule 13 application dismissed in default is treated as an application under Order 9, Rule 9. Therefore, the order rejecting such a restoration application is appealable under Order 43, Rule 1(c).
Result: Appeal allowed.
Judgement Key Points
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 (!) .
What is the scope of right of appeal from orders under Order 43, Rule 1 of the CPC in a miscellaneous proceeding under Order 9, Rule 13 CPC?
What is the maintainability of an appeal from an order rejecting restoration of an application under Order 9, Rule 13 CPC when the subsequent restoration application seeks recall of that order?
What are the conditions under which an appeal lies from an order dismissing an application for restoration of a dismissed application in default, in light of Section 141 CPC and Full Bench precedents?
Legal Category Hierarchy
Table of Contents
2. Appellant argued appeal maintainable under Order 43 Rule 1(c); respondent argued no appeal lies against order dismissing restoration of an Order 9 Rule 13 application. (Para 10 , 11 )
3. Words 'rejecting an application' in Order 43 Rule 1(c) include dismissal for default; restoration application is under Order 9 Rule 9 read with Section 141; appeal lies. (Para 21 , 22 , 31 , 33 , 34 , 41 , 42 , 57 )
4. An order rejecting an application for restoration of an application under Order 9 Rule 13 is appealable under Order 43 Rule 1(c) CPC. (Para 57 , 58 )
5. Appeal allowed; High Court judgment set aside; Appellate Court order revived; Trial Court to decide application under Order 9 Rule 13 within three months. (Para 63 , 64 )
6. Is an order dismissing an application for restoration of an application under Order 9 Rule 13 appealable under Order 43 Rule 1(c)?
Yes, such an order is appealable under Order 43 Rule 1(c) CPC as it is an order under Order 9 Rule 9 rejecting an application to set aside dismissal of a proceeding. (Para 41 , 42 , 57 , 58 )
7. Does the phrase 'rejecting an application' in Order 43 Rule 1 include dismissal for default?
Yes, the phrase 'rejecting an application' is comprehensive enough to include dismissal for default or rejection on any other ground; no need to add 'on merits'. (Para 21 , 22 , 33 )
8. Can Section 141 CPC be used to confer a right of appeal?
No, Section 141 only provides procedure; right of appeal must be specifically conferred by statute. However, when Order 9 applies, the appeal under Order 43 Rule 1 is available. (Para 38 , 39 , 40 )
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 T
