The main legal point established in the judgment is that the exercise of inherent powers under Section 151, CPC is not limited by any rule of limitation when it comes to setting aside the dismissal in default of an application for restoration of a suit under Order 9 Rule 9, CPC.

Prakash Shrivastava, J.

1. This appeal has been filed under Order 43 Rule 1, CPC challenging the order dated 3-9-03, passed by the Court of Additional Distt. Judge, Ujjain in Miscellaneous Civil Case No. 25/03 rejecting the appellant's application for restoration of MJC No. 43/02.

2. The brief facts are that the appellant had filed a suit for declaration and injunction against the non-appellant No. 1 that suit was dismissed due to the non-appearance of the Counsel for the appellant on 8-4-02. The appellant filed MJC No. 43/02 under Order 9 Rule 9, CPC for setting aside the order of dismissal of suit in default but that MJC also came to be dismissed in default on 6-8-02. Consequently, the appellant filed MCC No. 25/03 making a prayer that the order dated 6-8-02 may be recalled and the MJC No. 43/02 filed by him may be restored to its original position and decided on its own merit.

3. The Trial Court by the order dated 3-9-03 has dismissed the MCC No. 25/03 filed by the appellant on the ground that no sufficient ground was shown by the appellant for his non-appearance on 6-8-02. The Trial Court did not accept the appellant explanation in respect of the fault of the Counsel on the ground that the Advocate was not examined in the MCC. The Trial Court also took the view that as per Article 122 of the Limitation Act, the MCC should have been filed within 30 days from the date of dismissal of MJC No. 43/02, but since the MCC was filed beyond the period of 30 days and no application for condonation of delay was filed, therefore, the delay could not be condoned and MCC was liable to be dismissed. Accordingly, the Trial Court on the aforesaid reasoning dismissed the appellant's application for restoration.

4. It needs to examine if the Trial Court is right in taking the view, the provisions of Article 122 of Limitation Act, is attracted to an application which is filed for restoration of the application under Order 9 Rule 9.

5. A perusal of Article 122 indicates that this article is attracted in respect of the applications made for restoration of a suit, appeal, application for review or revision dismissed for default of appearance. In the presence case, the appellant had applied for restoration of his application under Order 9 Rule 9 read with Section 151, CPC. Such an application is not covered under Article 122 of the Limitation Act.

6. The same issue in similar circumstances had come up before the Division Bench of this Court in the matter of Pooranchand v. Komalchand reported in /MP/0027/1962 : AIR 1962 MP 64, where the suit of the plaintiff was dismissed in default under Order 9 Rule 8 and the application for restoration was also dismissed in default and the plaintiff had moved an application under Section 151 of the CPC for restoration of his application for restoration of the suit. The Division Bench of this Court had considered the question of applicability of Article 163 of the old Limitation Act (Article 122 of the new Limitation Act).

7. The Division Bench of this High Court in the matter of Pooranchand (supra), held that:

(5) We entirely agree with the view expressed in 28 Nag LR 83 : AIR 1932 Nag 101 (supra), Order 9 in terms applies only to suits. The remedy under Order 9 Rule 9, CPC is not a matter of procedure See: Sitaram v. Bapurao 1953 Nag LJ 144 : AIR 1953 Nag 153. The rule gives a substantive right of applying for restoration of a suit dismissed for default and this right cannot be conferred by Section 141 when it is made applicable to proceedings initiated on an application for setting aside the dismissal in default of an application for restoration of a suit under Order 9 Rule 9, CPC. Section 141 deals only with procedure and not with any substantive right. It does no more than provide the procedure to be adopted by Courts of civil jurisdiction in dealing with matters before them. It does not provide that the Code is to be applied in its entirety to such proceedings so as to confer the right of appeal or any other s