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2011 Supreme(J&K) 647
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mansoor Ahmad Mir, J.
Bashir Ahmad Shooru & Ors. -Appellant
Versus
Jawahar Lal Koul -Resopndent
C. Rev. No. 30-2011
Decided On : 02-09-2011
J.H. Reshi, G.R. Tantray.
An order consigning the suit to records under Section 151 of CPC is not an order of dismissal in default and does not put an end to the pendency of the suit. The proceedings can be revived from such an order and the question of limitation does not arise.
Headnote:
Revival - Civil Procedure - Section 151 of CPC, Order 17 Rule 2 - SLJ 1981 J&K 278, C. Revision Petition No. 50/1997, 1979-1991 PLR J&K Rulings 418, AIR 1974 Patna 289 - The court discussed the interpretation of the order consigning the case to records and its implications under Section 151 of CPC and Order 17 Rule 2. It highlighted that the order of consigning the case to records is not an order in terms of Order 17 Rule 2 and held that such an order does not put an end to the pendency of the suit. The court also emphasized that the proceedings can be revived from such an order and that the question of limitation does not arise. The judgment of the Patna High Court was cited to support the view that no period of limitation applies in an order under Section 151 CPC.
Fact of the Case:
The suit was consigned to records due to the non-appearance of the plaintiff, who had migrated from the Valley. The legal representatives of the plaintiff later sought revival of the proceedings, which was allowed by the trial court. The petitioners argued that the order of consigning the suit to records was an order of dismissal in default and the trial court was not within its power to revive the proceedings.
Finding of the Court:
The court found that the order consigning the suit to records was not an order of dismissal in default, but a simple order under Section 151 of CPC. It held that the petitioners were estopped from claiming otherwise as they had accepted the order and enjoyed its benefits. The court also emphasized that the proceedings could be revived from such an order and that the question of limitation did not arise.
Issues: The main issue was whether the order consigning the suit to records was an order of dismissal in default and whether the trial court had the power to revive the proceedings.
Ratio Decidendi: The court held that the order consigning the suit to records was not an order of dismissal in default, but a simple order under Section 151 of CPC. It emphasized that such an order does not put an end to the pendency of the suit and that the proceedings could be revived from it.
Final Decision: The court upheld the impugned order, stating that it was rightly passed in the interest of justice and dismissed the civil revision.
2. It appears that the said suit came to be consigned to records vide order dated 2.1.1992 on the ground of non-appearance of plaintiff. It is mentioned in the said order that all the Hindus have migrated from the Valley and that is why there was no representation on behalf of plaintiff and suit was consigned to records with liberty to the plaintiff to seek its revival whenever he approaches the court. Accordingly, the legal representatives of plaintiff, respondents herein laid a motion before the trial court for revival of proceedings which came to be allowed vide the impugned order.
3. Mr. Reshi, learned counsel for petitioners herein has argued that the order impugned is bad in law for the reason that the order of trial court consigning the suit to records is an order of dismissal in default and came to be passed strictly in terms of Order 17 Rule 2 of Code of Civil Procedure (for short, CPC). As the plaintiff did not move the restoration application within time, the trial court was not within its power to revive the proceedings.
4. It appears that it is not a case of dismissal in default and cannot be said to be an order in terms of Order 9 Rule 7 of CPC, but it is a simple order in terms of section 151 of CPC. The court after taking judicial note of the fact that all the Hindus have migrated thought it proper to consign the file to records with the observation that the suit can be revived when the plaintiff approaches the court and the said order was passed in presence of defendants-petitioners herein. They have not questioned the said order till the impugned order came to be passed. Thus, now they are estopped from taking a plea that the order consigning the suit to records is simplicitor an order of dismissal in default. If they were not contented with the order consigning the suit to records, they could have challenged the same at the relevant point of time. They accepted the order and enjoyed the benefits of said order, now cannot say that this is an order of dismissal in default and not an order consigning the suit to records.
5. The words "consigned to the records for default" came up for consideration before a Division Bench of this Court in Punjab Singh & others v. Teju & others, SLJ 1981 J&K 278 and their Lordships held that the order of consigning the case to records is not an order in terms of Order 17 Rule 2. It is apt to reproduce para-7 herein:
"7. Now none of these Rulings are quite pertinent to the question before us. We have looked into such of these rulings as have been correctly cited by the court below and are not wholly irrelevant. Nila v. Punu and another, 1936 PLR 803 lays down that an order under Order 17 Rule 3 is resjudicata. Gobind Lal v. Baldev Singh, 12 PLR 1915, lays down that pleas not raised in an earlier suit between the same parties with regard to the same subject matter cannot be raised in a subsequent suit because of Sec. 11 of the Code of Civil Procedure. Vankatachalam v. Mahalakshman II R Madras 272, lays down that a decree passed on material existing on the record notwithstanding the default made by the plaintiff in producing evidence on his behalf will act as resjudicata. The remaining Rulings have no bearing on the matter before us. With the propositions adumbrated in these rulings there need be no quarrel but the proposition before us is quite different. It is whether the judgment between the parties dated 31st Baisakh 1978 can be interpreted to be an order on merits under Order 17 Rule 3. It is obvious that to attract the full force of Sec. 11 of the Code of Civil Procedure in the principle of "resjudicata" the issues in the earlier case should have been heard an
