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PATNA HIGH COURT
V.Ramaswami and R.K.Choudhary JJ.
Manik Mandal
Versus
Bharosi Singh
Civil Revision No. 1223 of 1955 ;
Decided On : AUGUST 01, 1958
CIVIL PROCEDURE CODE - Section 105(1) - Order 9, Rule 9(2) - Order setting aside dismissal of suit without notice to defendant - Whether without jurisdiction - Whether can be challenged in appeal from final decree.
Fact of the Case:
Plaintiffs filed a suit for confirmation of possession, or, in the alternative, for recovery of possession after declaration of their title to the suit land. The suit was dismissed for default on the date fixed for hearing. On the same date, the plaintiffs filed an application for setting aside the order of dismissal, and the learned Munsif, without registering the application as a miscellaneous case, and without giving any notice to the defendant, recalled the order of dismissal then and there, and proceeded to hear the suit. The defendant preferred an appeal before the District Judge, who held that the trial had been without jurisdiction and set aside the judgment and the decree of the trial Court and remanded the suit to the trial Court with a direction for rehearing the application for setting aside the order of dismissal after registering the same as a miscellaneous case and giving notice thereof to the defendant.
Finding of the Court:
The order setting aside the dismissal of the suit without giving notice to the defendant was in contravention of the provision of law and the Court, in passing such an order, committed an error of law. However, the error in making such an order is an error of law which could be corrected by higher authorities in an appropriate proceeding taken against that order. But by no stretch of imagination it could be treated as a nullity as being without jurisdiction.
Issues: 1. Whether the order setting aside the dismissal of the suit without notice to the defendant was without jurisdiction? 2. Whether the error in making such an order can be challenged in appeal from the final decree?
Ratio Decidendi: 1. The order setting aside the dismissal of the suit without giving notice to the defendant was in contravention of the provision of law and the Court, in passing such an order, committed an error of law. However, the error in making such an order is an error of law which could be corrected by higher authorities in an appropriate proceeding taken against that order. But by no stretch of imagination it could be treated as a nullity as being without jurisdiction. 2. The error in making such an order is an error of law which could be corrected by higher authorities in an appropriate proceeding taken against that order. But by no stretch of imagination it could be treated as a nullity as being without jurisdiction.
Final Decision: The application succeeds and is allowed with costs. The judgment and the order of the lower appellate court setting aside the judgment and the decree of the trial court and remanding the case to the trial court for fresh decision are set aside and the case is sent back to the lower appellate court for a decision of the appeal on merits.
R.K.Choudhary, J.
1. This application is by the plaintiffs and is directed against an order of remand passed by the learned Additional Subordinate Judge of Monghyr on 6-10-1955, in Title Appeal No. 39 of 1955.
2. The events leading to the presentation of the application are these: The petitioners instituted a suit for confirmation of possession, and, in the alternative, for recovery of possession after declaration of their title to the suit land. They also prayed for an adjudication that the defendant was not an under-raiyat in respect of the suit land. It appears that on the date fixed for the hearing of the suit, the defendant was present with his lawyer in court, but the petitioners did not turn up and the suit was dismissed for default on 15-3-1955.
On the same date, the petitioners filed an application for setting aside the order of dismissal, and the learned Munsif, without registering the application as a miscellaneous case, and without giving any notice to the defendant, recalled the order of dismissal then and there, and proceeded to hear the suit. Two formal witnesses were examined and cross-examined on that date, though the defendant with his witnesses had left the court after the dismissal of the suit for default.
The hearing of the suit thereafter proceeded on several dates and both the parties examined their witnesses though the "defendant in an application made on the next day stated that he was proceeding with the suit without prejudice to his legal rights as regards the recalling of the order of dismissal. Ultimately, the suit was decreed by the learned Munsif, and the defendant preferred an appeal before the District Judge.
The appeal was heard by the second Additional Subordinate Judge of Monghyr, and it was contended before him that the order recalling the order of dismissal without giving notice to the defendant was without jurisdiction and that, therefore, the decree passed in the suit vitiated in law. The learned Additional Subordinate Judge accepted this contention and held that the trial had been without jurisdiction.
He, therefore, set aside the judgment and the decree of the trial Court and remanded the suit to the trial Court with a direction for rehearing the application for setting aside the order of dismissal after registering the same as a miscellaneous case and giving notice thereof to the defendant. Being thus, aggrieved, the plaintiffs have moved this Court in revision.
3. Mr. Kaushal Kishore Sinha, appearing for the petitioners, has contended that the order of remand is bad in law inasmuch as the order setting aside the dismissal of the suit could not ,be challeng- ed in an appeal from the final decree passed in the suit. In support of this contention he has relied on Sec.105 (1) of the Code of Civil Procedure which states that, save as otherwise expressly provided, no appeal lies from any order made by a Court in the exercise of its original or appellate jurisdiction but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
It has been contended that in order that any error, defect or irregularity in any order may be set forth as a ground of objection in the appeal from the final decree it must be such an error, defect or irregularity which affects the decision or the case on merits. It has been submitted that the order setting aside the order of dismissal has the effect of ensuring the hearing of the suit on merits and it does not affect the decision of the case on merits, and, as such, the order could not be challenged in the appeal.
On the other hand, Mr. J. C. Sinha appearing for the defendant-opposite party, has relied on Section 99 of the Code of Civil Procedure which says that no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of any misjoinder of parties and causes of action or any error,
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