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2011 Supreme(Ker) 997
KERALA HIGH COURT
K.T. Sankaran, J.
C. Varghese Mathai - Petitioner
Versus
Varghese C. Philippukutty - Respondents
OP(C).No. 440 of 2011
Decided On : 02-02-2011
For the Petitioner:G. Unnikrihhnan and S. Sreedevi, Advocate
Headnote:
Limitation Act - Art.122 - Code of Civil Procedure, 1908 - O.IX R. 9 & S.151 - Suit for partition - Whether for restoration of a suit which was dismissed erroneously on the basis of a compromise entered into between the parties before the Lok Adalath, Art.122 of the Limitation Act or Art.137 of the Limitation Act would apply; and (2) When R.9 of O.IX of the Code of Civil Procedure makes a specific provision for restoration of a suit, whether S.151 of the Code of Civil Procedure can be resorted to for that purpose - Held, It was found by this Court in W.P.(C) No. 15463 of 2009 that the proceedings of the Lok Adalath were illegal and improper. It was also held that there was no executable decree as there was no executable award passed by the Lok Adalath. The dismissal of the suit was also held to be improper. That means, the Trial Court was not justified in dismissing the suit. For restoration of such a suit, Rr.8 and 9 of O.IX of the Code of Civil Procedure would have no application. A mistake committed by the Court should be rectified by the Court. The Court was apprised of the mistake by filing an application for restoration of the suit. Rectification of a mistake could be made at any time. It was the duty of the Trial Court to rectify the mistake. The parties to the suit need only point out that such a mistake was committed by the Court. The Court was satisfied that the suit was liable to be restored. The source of power for the same is not certainly R.9 of O.IX, but it could only be S.151 of the Code of Civil Procedure - To attract Art.122, the application for restoration should be on account of the dismissal of the suit for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. In the present case, the dismissal of the suit was not on any of these grounds. Therefore, Art.122 does not apply. If so, the residuary Art.137 will apply and the period of limitation is three years - Order passed by the court below is legal and proper. No grounds are made out for interference. The Original Petition is, accordingly, dismissed
K.T. Sankaran, J.
The questions of law which arise for consideration in this Original Petition are: (1) Whether for restoration of a suit which was dismissed erroneously on the basis of a compromise entered into between the parties before the Lok Adalath, Article 122 of the Limitation Act or Article 137 of the Limitation Act would apply; and (2) When Rule 9 Order 9 of the Civil Procedure Code makes a specific provision for restoration of a suit, whether Section 151 of the Civil Procedure Code can be resorted to for that purpose.
2. The petitioner is the first defendant in O.S.No.42 of 2005, Sub Court, Thiruvalla, which was filed by the first respondent for partition. An appeal between the parties as A.S.No.36 of 2004 was also pending before the Sub Court, Thiruvalla. The aforesaid matters were referred to the Lok Adalath. In the Lok Adalath held on 29.3.2008 at Sub Court, Thiruvalla, the following arrangement was arrived at:
"Parties are present, agreed to settle the matters including matters and cases pending before the Munsiff's Court, Thiruvalla after measuring the properties on or before the next Lok Adalath. The connected cases are A.S.No.35/2004, A.S.36/2004."
On the basis of the alleged settlement, O.S.No.42 of 2005 was dismissed recording the settlement.
3. The plaintiff challenged the proceedings of the Lok Adalath and the dismissal of the suit, in W.P.(C) No.15463 of 2009. It was contended that no measurement as contemplated in the consensus among the parties was done and contrary to the consensus, O.S.No.42 of 2005 was dismissed. It was contended by the plaintiff that no award was passed by the Lok Adalath. W.P.(C) NO.15463 of 2009 was disposed of as per the judgment dated 26.3.2010. This Court set aside the proceedings of the Adalath. It was held that the plaintiff is at liberty to approach the Court for restoration of the suit by filing proper application. It was also held that if proper application is filed, the Court shall restore the suit and dispose of the same in accordance with law.
4. The plaintiff filed I.A.No.920 of 2010 to restore the suit. The application was filed on 26.7.2010, invoking Section 151 of the Civil Procedure Code. The petitioner/first defendant filed objections. He contended that the application for restoration of the suit is barred by limitation. No application was filed to condone the delay in filing the application for restoration of the suit. The plaintiff also did not explain the delay in the affidavit. It was also contended that the application under Section 151 of the Civil Procedure Code was not maintainable.
5. The court below allowed I.A.No.920 of 2010 by the order dated 20.9.2010, holding that Article 137 of the Limitation Act would apply and that the application was filed well within time. That order is under challenge in this Original Petition.
6. Learned counsel for the petitioner submitted that the application for restoration should have been filed under Rule 9 Order 9 of the Civil Procedure Code. The application for restoration is barred by limitation under Article 122 of the Limitation Act. It is contended that Article 137 of the Limitation Act has no application. The counsel for the petitioner also raised a contention that when an express provision is made in the Civil Procedure Code for restoration of the suit, the plaintiff was not entitled to invoke Section 151 of the Civil Procedure Code.
7. As held in Ram Chand and Sons Sugar Mills Private Ltd., M/s.Barabanki (U.P.) v. Kanhayalal Bhargava and others (AIR 1966 SC 1899) 1966 ICO 183;; Arjun Singh v. Mohindra Kumar and others (AIR 1964 SC 993) 1963 ICO 136, Padam Sen and another v. The State of Uttar Pradesh (AIR 1961 SC 218) 1960 ICO 90 and Krishnan Namboodiri v. Unnikrishnan Namboodiri (2005 (3) KLT 556) 2005 ICO 1738, the inherent power of the Court cannot override the express provisions of the law. If there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implicat
