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High Court of Judicature at Madras
P.D. DINAKARAN
The Manager Personal Banking Division State Bank of India Madras Main Branch Madras & others
Versus
P.S. Maragatham
C.R.P.No.2483 of 1996 and Tr.CMA No.8379 of 2002
Decided On :Decided on: 12-04-2002
Restoration of Suit - Order IX, Rule 9, CPC - [RESTORATION OF SUIT] - [CIVIL PROCEDURE CODE] - [Order IX, Rule 9]
Fact of the Case:
The plaintiff filed a suit which was dismissed for default. The plaintiff then filed an application for restoration of the suit, which was allowed. An ex parte decree was passed, and the defendants filed applications to set aside the decree and the order restoring the suit.
Finding of the Court:
The Court found that the order of restoration was illegal and contrary to Order IX, Rule 9(2), CPC. Consequently, the ex parte decree was set aside, and the suit was restored with a direction to try the suit and pass appropriate decree and judgment within three months.
Issues: The main issue was whether the notice of the application for restoration to the opposite party was mandatory under Order IX, Rule 9(2), CPC.
Ratio Decidendi: The Court held that the notice of an application for restoration to the opposite party is mandatory as per Order IX, Rule 9(2), CPC. Since no notice was served on the defendants before restoring the suit, the order of restoration was deemed illegal.
Final Decision: The revision and the appeal were allowed, and the suit was restored with a direction to try the suit and pass appropriate decree and judgment within three months.
1. The petitioners in the revision and the appellants in the appeal are the defendants in O.S.No.4423 of 1987 on the file of the learned IV Assistant City Civil Judge, Madras, laid by the respondent for passing a decree and judgment based on the three fixed deposits that were alleged to have been matured on 13.2.1987, 15.2.1987 and 8.2.1987.
2. For the purpose of convenience, parties are referred to as per their rank in the suit.
3. The suit filed by the plaintiff, viz. O.S.No.4423 of 1987 was dismissed for default on 13.7.1990. Hence, the plaintiff filed I.A.No.18390 of 1990 for restoration of the suit under Order IX, Rule 9, CPC. The learned IV Assistant City Civil Judge, Madras, allowed I.A.No. 18390 of 1990 and restored the suit on 27.2.1992. Thereafter, an ex parte decree was passed in the above suit on 29.1.1993, pursuant to which the plaintiff initiated execution proceedings in E.P.No.3469 of 1993. After service of notice in the execution proceedings, the defendants, on 25.1.1995, filed two applications, viz. I.A.No.1019 and 1020 of 1995 to set aside the ex parte decree dated 29.1.1993 made in O.S.No.4423 of 1987 and to set aside the order dated 27.2.1992 restoring the suit, respectively, contending that they had not been served with notice in I.A.No. 18390 of 1990, which is mandatory under Order IX, Rule 9, CPC.
4. The above applications were resisted by the plaintiff on the ground that when the defendants initiated execution proceedings in E.P.No.371 of 1991 for executing the cost awarded when the suit was dismissed for default on 13.7.1990, the said execution proceedings was closed by the Execution Court based on the representation made by the plaintiff that the the defendants had the knowledge about I.A.No. 18390 of 1990, filed by the plaintiff to restore the suit in I.A.No. 18390 of 1992.
5. Accepting the case of the plaintiff, the Court below, by order dated 19.9.1996, dismissed both I.A.Nos.1019 and 1020 of 1995 to set aside the ex parte decree dated 29.1.1993 made in O.S.No.4423 of 1987 and to set aside the order dated 27.2.1992 restoring the suit, respectively.
6. Aggrieved by the order dated 19.9.1996 made in I.A.No. 1019 of 1995, the defendants filed Tr.CMA No.8379 of 2002 and CRP No.2483 of 1996 against the order dated 19.9.1996 made in I.A.No.1020 of 1995. Hence, the above revision and appeal.
7. The learned counsel for both sides reiterated the submissions that were advanced before the Courts below.
8. After careful consideration of the submissions of both sides, I am obliged to decide whether the knowledge of the pendency of I.A.No. 18390 of 1990 filed by the plaintiff for restoration of the suit dismissed for default on 13.7.1990 is sufficient for the compliance of Order IX, Rule 9(2), CPC, with regard to notice of the application for restoration?
9. In this regard, I am obliged to refer Order IX, Rule 9, CPC, which reads as follows:
Decree against plaintiff by default bars fresh suit.
9.(1) Where a suit is wholly or partly dismissed under 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 as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party." (Italics supplied)
10. Order IX, Rule 9(2), CPC, referred to above, makes it clear that the notice of an application for restoration to the opposite party is mandatory. To verity the fact whether notice was given by the plaintiff to the defendants in I.A.No. 18390 of 1990 for restoring the suit which was dismissed for default on 13.7.1990, this Court directed the Registry to call for the entir
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