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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J
R.S.Biju S/o R. Sidharthan (Died) Raj Nivas – Appellant
Versus
Kousalya Amma (Died) D/o Kalyani – Respondent
JUDGMENT :
The 2nd additional plaintiff in O.S.No.5 of 2010 on the files of the Sub Court, Cherthala, has filed this Regular First Appeal under Section 96 r/w Order XLI Rule 1 of the Code of Civil Procedure, 1908, challenging the judgment in the said case dated 12.01.2016, whereby the learned Sub Judge dismissed the Suit for non prosecution/default. Since the judgment under challenge is one passed under Order 9 Rule 8 of C.P.C, the question arises for consideration is whether a Regular First Appeal under Section 96 r/w Order 41 of the Code of Civil Procedure (`C.P.C’ for short hereafter) would lie against a verdict whereby the suit has been dismissed for default/non-prosecution?
2. Order 9 Rule 9(1) of the Code of Civil Procedure provides that where a suit is wholly or partly dismissed under Order 9 Rule 8, the 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 the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise
An order of dismissal for non-prosecution is not a decree and cannot be appealed under Section 96 of the Code of Civil Procedure.
A plaintiff's appearance through counsel negates claims of dismissal for non-appearance under procedural rules.
The main legal point established in the judgment is that an order of dismissal for default does not constitute a decree under the Code of Civil Procedure.
The main legal point established in the judgment is that the appellate court is obligated to hear the appellant or their counsel and go through the records before disposing of the appeal, as per the ....
A dismissal of a complaint for non-prosecution under Section 256(1) of the CrPC constitutes an acquittal, and the remedy lies in appealing under Section 378(4), rather than invoking Section 482.
A suit cannot be dismissed for non-prosecution unless it is listed for hearing; dismissal under such circumstances is improper.
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