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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K.NARENDRAN, K. BABU, JJ.
M. SHIVANANDA S/O.SHANTHARAMA - Appellant
Vs.
M. SUSHEELA, D/O. LATE P.RAMACHANDRA RAO - Respondent
FAO NO. 313 OF 2007
Decided On : 06-09-2021
Code of Civil Procedure 1908 - Order XLIII - Rule 1(c) , Order IX - Rule 9 ,9(1) 9(2) , 13 , 13(1)
, Order IX - Rule 8 , - Restoration - Interlocutory application - Plaintiff in O.S. on the file of the Subordinate Judge's Court, is the appellant in this appeal, which is one filed under Order XLIII Rule 1(c) of the Code of Civil Procedure, 1908, against the order of the said court. The appellant is the 3rd plaintiff. The said suit is one filed by the appellant along with two others seeking partition of the plaint schedule properties. suit was dismissed for default. appellant along with 2 others filed, an application under Order IX Rule 9 of the Code, seeking restoration of that suit. That application was one filed within the period of limitation. By the impugned order the court below dismissed that interlocutory application. Feeling aggrieved by that order, the appellant-3rd plaintiff is before this Court in this appeal - Whether any interference is warranted on impugned order of the Sub Court, whereby that application filed under Order IX Rule 9 of the Code of Civil Procedure, for restoration of that suit, which was dismissed for default.
Finding of the Court:
Order IX, Rule 9 of Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when suit was called on for hearing, court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per sub-rule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party - Court below rejected application on ground apart from interested version in affidavit sworn to in support of above interlocutory application, no reliable materials were placed to show absence of plaintiffs, when suit was listed for trial is on medical grounds. The court below noticed that reason advanced in affidavit filed in support of the above interlocutory application and that, stated in the affidavit filed in support of, an application filed along with a medical certificate to remove the suit from the list are self contradictory - If court below was not fully satisfied that there was sufficient cause for the absence of the plaintiffs, instead of dismissing the application for restoration, it could have imposed a reasonable cost on the plaintiffs and decided the lis on merits – Court finds no reason to sustain the impugned order of the Sub Court, and that order is set aside.
Result: Appeal Allowed
JUDGMENT :
Anil K. Narendran, J.
The 3rd plaintiff in O.S.No.28 of 1999 on the file of the Subordinate Judge's Court, Hosdurg, is the appellant in this appeal, which is one filed under Order XLIII Rule 1(c) of the Code of Civil Procedure, 1908, against the order of the said court dated 24.02.2007 in I.A.No.163 of 2005 in O.S.No.28 of 1999. The appellant is the 3rd plaintiff. The said suit is one filed by the appellant along with two others seeking partition of the plaint schedule properties. On 11.02.2005, the suit was dismissed for default. The appellant along with 2 others filed I.A.No.163 of 2005, an application under Order IX Rule 9 of the Code, seeking restoration of that suit. That application was one filed within the period of limitation. By the impugned order dated 24.04.2007, the court below dismissed that interlocutory application. Feeling aggrieved by that order, the appellant-3rd plaintiff is before this Court in this appeal.
2. On 24.10.2007, when this appeal came up for admission, this Court admitted the matter on file. Service of notice could not be completed in this appeal for a considerably long period, since notice issued to some of the respondents returned unserved. Even after taking repeated steps, service of notice could not be completed. Thereafter, by the order dated 02.08.2021 in I.A.No.1 of 2021, the appellant was permitted to take out notice by paper publication to respondents 18, 29, 30, 31, 33, 35, 39, 43, 47, 71 and 75 in Kerala Kaumudi Daily having circulation in Kasaragod District. Pursuant to that order, the appellant has effected service of notice to unserved respondents by paper publication and a copy of that publication has already been received in the concerned Section on 01.09.2021. By a separate order dated this date, Registry was directed to get explanation from the concerned officer, who has not chosen to incorporate that memo in the Judge's papers. Since paper publication has already been effected, service of notice on respondents 18, 29, 30, 31, 33, 35, 39, 43, 47, 71 and 75 is declared as complete.
3. Heard the learned counsel for the appellant-3rd plaintiff, the learned counsel for the 1st respondent, learned counsel for respondents 2, 7, 15 to 17, 19 to 27 and also the learned counsel for the 6th respondent.
4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order dated 24.02.2007 of the Sub Court, Hosdurg, in I.A.No.163 of 2005 in O.S.No.28 of 1999, whereby that application filed under Order IX Rule 9 of the Code of Civil Procedure, for restoration of that suit, which was dismissed for default, stands rejected, for the reasons stated therein.
5. Order IX, Rule 8 of the Code of Civil Procedure deals with procedure where defendant only appears. As per Order IX, Rule 8, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
6. Order IX, Rule 8 of the Code of Civil Procedure, 1908 deals with procedure where defendant only appears. As per Order IX, Rule 8, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
7. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall
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