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T.S. Doabia, J.
Mahila Jagannathi Wd/O Sitaram
vs
Naga S/O Dhudilal And Ors.
Decided On : 23 July, 1997
Restoration - Civil Procedure Code - The court held that when a suit is dismissed under Order 9, Rule 8, the remedies available are restoration or review. The court emphasized that the serious consequences of dismissal in default should not bar restoration, and negligence of counsel should not hinder the process.
Fact of the Case:
A civil suit was dismissed due to lack of evidence, and an application for restoration was filed under Section 151 of the Civil Procedure Code. The trial court dismissed the application citing the provisions of Order 17, Rule 3.
Finding of the Court:
The court found that the trial court was not right in its reasoning and emphasized that serious consequences of dismissal in default should not bar restoration of the suit.
Issues: The issues involved the dismissal of the civil suit, the application for restoration, and the interpretation of relevant provisions of the Civil Procedure Code.
Ratio Decidendi: The court held that the remedies available for a dismissed suit under Order 9, Rule 8 are restoration or review, and emphasized that the serious consequences of dismissal in default should not hinder restoration.
Final Decision: The court set aside the trial court's order and restored the suit to its original number, subject to the payment of costs.
T.S. Doabia, J.
Heard.
The brief facts which have led to the filing of this petition are as under :
1. A civil suit was filed by the present petitioner. This was dismissed on 19-9-1996. This was done because, evidence on the part of the plaintiff was not present. An application was filed, seeking restoration. This application was filed taking into consideration Section 151 of Civil Procedure Code . This application was dismissed on the ground that as provisions of Order 17, Rule 3 are attracted, there is no justification to restore the suit.
2. I am of the opinion, that the trial Court was not right in the reasoning adopted by it. When a suit is dismissed under Order 9, Rule 8, two remedies are available. These remedies are to seek restoration or to file a review. See: Tirukappa v. Kamalamma, AIR 1966 Mysore and Bhajan Singh v. Bant Singh, AIR 1980 P&H 149. The Judicial opinion is that since consequences of the order of dismissal in default are very serious and as the plaintiff may be barred from filing of the suit, the suit should be restored. Negligence of the counsel should not come in the way of such restoration.
3. In view of the above, the order passed by the trial Court refusing to restore the suit is set aside. The suit shall stand restored to its original number. This is however, subject to the payment of costs. Costs are Rs. 500/-.
Disposed of accordingly.
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