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GAUHATI HIGH COURT
D.N.Baruah, J.
Haridas Das -Appellant
Versus
Santa Rani Das -Respondent
Civil Revision No. 210 of 1991
Decided On : 19-12-1991
CIVIL PROCEDURE CODE - ORDER 9 RULE 9 - RESTORATION OF SUIT - APPEALABILITY OF ORDER - ORDER DISMISSING APPLICATION FOR RESTORATION OF EARLIER APPLICATION UNDER ORDER 9 RULE 9 - NOT APPEALABLE.
Fact of the Case:
Petitioner filed a title suit which was dismissed for default. He filed a petition for restoration of the suit under Order 9 Rule 9, which was also dismissed for default. He then filed another petition for restoration of the earlier petition, which was also dismissed. He appealed against the order of dismissal of the third petition.
Finding of the Court:
The court held that the appeal was not maintainable as per the provisions of Order 9 Rule 9 read with section 141 of the Civil Procedure Code. The order dismissing the application for restoration of the earlier application under Order 9 Rule 9 is not appealable.
Issues: Whether an appeal lies under Order 43 Rule 1(c) of the Civil Procedure Code against the dismissal of a petition filed under Order 9, Rule 9, to restore another petition under Order 9, Rule 9 of Civil Procedure Code for restoration of a suit which was dismissed for default.
Ratio Decidendi: An application under Order 9 Rule 9 for restoration of an earlier application filed for restoration of a suit is maintainable as per section 141 of the Civil Procedure Code. However, any order passed in the second petition is not appealable under the provision of Order 43, Rule 1(c), inasmuch as, the second petition is not for restoration of a suit, but for restoration of an application filed under Order 9, Rule 9 of the Civil Procedure Code.
Final Decision: The petition was dismissed as the appeal was not maintainable.
Certainly. Here are the key points derived from the provided legal document:
An order dismissing an application for restoration of an earlier application under Order 9 Rule 9 of the Civil Procedure Code is not appealable [judgement_subject].
The petitioner filed multiple applications under Order 9 Rule 9 for restoration of a suit dismissed for default, and these applications were dismissed for default each time (!) .
The petitioner also filed an appeal against the order of dismissal of the third application for restoration, but the appellate court held that such an appeal was not maintainable (!) .
The court clarified that an application under Order 9 Rule 9 for restoration of an earlier application is maintainable under section 141 of the Civil Procedure Code, but any order passed in such a second application is not appealable under Order 43 Rule 1(c) because it pertains to the restoration of an application, not a suit [judgement_subject] (!) .
When an application under Order 9 Rule 9 is dismissed for default, the aggrieved party has two remedies: an appeal under Order 43 Rule 1(c) or a fresh application under Order 9 Rule 9 for restoration. These remedies are concurrent but distinct, and an appeal from an order dismissing such an application is not permissible (!) (!) .
The appellate court emphasized that the scope of remedies under Order 9 Rule 9 and Order 43 Rule 1(c) are different, and an order dismissing a second application for restoration is not appealable (!) .
Consequently, the court dismissed the appeal, holding that it was not maintainable, and found no illegality or irregularity in the exercise of jurisdiction by the lower courts (!) (!) .
The court did not decide on the merits of the case, as the primary issue was the maintainability of the appeal itself (!) .
Please let me know if you need further elaboration or assistance with this case.
2. The petitioner filed a title suit in the Court of Munsiff No. 1, Karimganj against Kalipada Das (since deceased), the predecessors-in-interest of the opposite party. The said title suit was dismissed for default on 1142.85. On 20 12.85 the petitioner filed a petition under Order 9 Rule 9 read" with section 151 of the Civil Procedure Code for restoration of the suit. This, petition was registered as Misc. Case No. 88 of 1985. This petition was also dismissed for default on 27.7.87. Against the order of dismissal, the petitioner instead of filing an appeal, filed yet another petition in the Court of the Munsiff No. 2, Karimganj under Order 9 Rule 9 of the Civil Procedure Code and this petition was registered and numbered as Miscellaneous Case No. 81 of 1987. This miscellaneous case was also dismissed for default on 17.11.88. Against this order of dismissal, the petitioner filed another Miscellaneous Case No. 147 of 1988 in the Court of Munsiff No. 2, for setting aside the order of dismissal dated 17.11.88. By order dated 12.4.89, the learned Munsiff No. 2 dismissed the said miscellaneous case also. Against that order (of dismissal, a miscellaneous appeal was filed before the learned District Judge, Karimganj. This appeal was registered and numbered as Miscellaneous Appeal No. 4 of 1990.
3. The learned District Judge after considering the submissions made by the petitioner and on perusal of the records, dismissed the appeal holding that the appeal had no merit and thereby affirmed the order passed by the learned Munsiff No. 2, Karimganj.
4. The petitioner has come before the Court invoking the power under section 115 of the Code of Civil Procedure against the judgment dated 19.4.91 passed by the District Judge, Karimganj.
5. I have heard the learned counsel for both the parties. The learned counsel for the petitioner urged that the learned District Judge committed illegality and with material irregularity in exercise of his jurisdiction by dismissing the appeal. He also urged that there was sufficient cause which prevented the petitioner in appearing on the date of hearing of the suit and subsequent miscellaneous cases.
6. Before entering into the merit of the case, it is to be seen whether the appeal lies under Rule 43 (1) (c) of the Civil Procedure Code against the dismissal of a petition filed under Order 9, Rule 9, to restore another petition under Order 9, Rule 9 of Civil Procedure Code for restoration of a suit which was dismissed for default.
7. Now the main question is when an application under Order 9, Rule 9 of the Civil Procedure Code is dismissed for default another application can be filed under the said provision and whether the provision of Order 9, Rule 9 is applicable in the subsequent petition to restore the petition under Order 9, Rule 9 of the Civil Procedure Code, dismissed for default. On the dismissal of the suit as per Order 9, Rule 9, the plaintiff can file application for restoration of the suit. If the said application is also dismissed for default, the plaintiff may file another petition for restoration of the said application under the provisions of Order 9 Rule 9 of the Code of Civil Procedure, as the said application also comes within the purview of Order 9, Rule 9 in view of section 141 of Code of Civil Procedure. Now it is to be seen that whether an appeal will lie under Order 43 Rule 1(c) of the Code of Civil Procedure when the second petition for restoration of the earljer petftion filed under Order 9, Rule 9 to restore a suit which was dismissed either by default or on merit. The second petition which was filed for restoration of an earlier petition was not to set a
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