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HIGH COURT OF MADHYA PRADESH (FULL BENCH)
SHIVDAYAL, C. J., R.K. TANKHA & S.S. SHARMA, JJ.
Nathu Prasad
V.
Singhai Kapurchand
C. Revn. No. 426 of 1973 against order passed by Shri M.A. Farooque, I Civil Judge, Class I, Bilaspur
Decided on: 6-2-1975
(2) Civil P. C., 1908 - O.9, R. 9 & S. 141 - proceedings for restoration-are not of interim nature-section 141 applies-application lies for restoration of application of restoration if dismissed in default.
Section 141 of the Code of Civil Procedure is in general terms and the expression "as far as it can be made applicable" provides for the extent to which the section can be applied to a civil proceeding other than a suit. The expression "all proceedings" is of a very wide connotation and to restrict it to a proceeding, which is original in nature and wholly independent of a suit will be doing violence to the language of the section. When a suit, which is dismissed for non-appearance of the plaintiff can be restored on satisfying the Court that the plaintiff was prevented by some sufficient cause from appearing before the Court, there is no reason why, when an application under Order 9, rule 9, is likewise dismissed for non-appearance of the applicant, the latter should be denied an opportunity to satisfy the Court that he was prevented by reason of sufficient cause from appearing before the Court, when his application was called on for hearing. The object and purpose of section 141 is that for economy of words, it was unnecessary to repeat the whole of the procedure in providing for procedure for an application or any other proceeding, original or ancillary. AIR 1962 SC 903, AIR 1966 SC 1888, AIR 1966 AP. 263, AIR 1969 Guj. 308 relied on. AIR 1968 Bom. 250 dissented from. [Paras 8 & 26 (i)]
(3) Civil P. C., 1908 - O.43, R. 1(c)-words 'rejecting an application' -includes dismissal in default - appeal lies from an order dismissing in default an application for restoration.
(4) Civil P. C., 1908 - O. 9, R. 9 & O.43, R. 1(c)-application for restoration dismissed in default-appeal lies.
The words 'rejecting an application' occurring in Rule 1(c) of Order 43 are comprehensive enough to include dismissal for default on rejecting in any other situation whatever. [Para 15]
An appeal lies from an order dismissing for default or on merits, an application under Order 9, rule 9, C.P.C. 1961 JLJ 1165 overruled. 1970 JLJ 11 approved.
[Paras 18 & 26(ii)]
(5) Interpretation of statutes-language of the enactment clear-effect should be given -duty of the Courts.
Where the language is clear, and the meaning plain, effect must be given to it. The Court cannot read a law as if its language is different from what it actually is. Otherwise, it will amount to amending the law, which is not permissible for the Court. AIR 1955 SC 504 & AIR 1965 SC 1180 relied on.
The primary duty of the Court is to give effect to the intention of the legislature as expressed in the words used by it and no outside consideration can be called in aid to find another intention. AIR 1950 SC 165 relied on. [Para 17]
(6) Civil P. C, 1908 - O.9, R. 9 & O.43, R. 1-remedies against dismissal for default-both appeal and restoration are available-remedies are concurrent but scope is different.
When an application under Order 9, rule 9, is dismissed for default, both the remedies are available to the applicant : (i) he can apply for restoration under Order 9, rule 9 C.P.C., and (ii) he may appeal under Order 43, rule 1(c). Thus, side by side, two remedies are open to him. There is no provision in the Code to the effect that either of them will exclude the other. However if an appeal has been filed and decided, the order of the lower Court will merge in the order passed by the appellate Court. There is nothing wrong or unusual that a party should have two alternative and simultaneous remedies against an adverse order. [Paras 20 & 26 (iii) & (iv)]
(7) Precedents-one Division Bench disagreeing with previous Division Bench-should refer the matter to a larger Bench. AIR 1960 SC 936 & AIR 1962 SC 83 relied on.
[Para 22]
[Also see 1976 JLJ SN 38]
Shivdayal. C.J.- 1. An apparent conflict between Pooranchand v. Komalchand 1961 JLJ 1165 = AIR 1962 MP 64 (Dixit, C.J. and Pandey, J.) and Komalchand v. Pooranchand 1970 JLJ 11 = 1969 MPLJ 937 (Naik and Singh, J.) has led to this reference. Three questions have been referred to us :
"(1) Whether an appeal lies under Order 43, rule 1 (c), rejecting/dismissing for default an application under Order 17, rule 2, read with Order 9, rule 9, C.P.C.?
(2) Whether the Division Bench which decided Komalchand v. Pooranchand 1970 JLJ 11 = 1969 MPLJ 937 (Naik and Singh, J.), could take a contrary view to the one taken in Pooranchand v. Komalchand 1961 JLJ 1165 = AIR 1962 MP 64 (Dixit, C.J. and Pandey, J.), which had been decided by a Division Bench?
(3) Whether the earlier decision in Pooranchand v. Komalchand 1961 JLJ 1165 = AIR 1962 MP 64 (Dixit, C.J. and Pandey, J.), operated as res judicata in the later case (Komalchand v. Pooranchand) 1970 JLJ 11 = 1969 MPLJ 937 (Naik and Singh, J.)?".
2. The first question is of general importance and frequent occurrence on which conflicting views were taken by the two Division Benches. The second and third questions arise because of the two particular decisions mentioned in them.
3. This revision has arisen in the circumstances which may be briefly narrated as follows. A money decree was passed in favour of Nathuprasad (revision-petitioner No.1) and Dwarkaprasad, whose legal representative is petitioner No.2, against respondents Nos. 1, 3, and 4, and one Gulabchand, whose legal representative is respondent No.2. In execution of that decree, house was attached. Kapurchand (judgment-debtor) filed an objection that it was a self-acquired property. The executing Court rejected that objection, whereupon Kapurchand instituted a suit for setting aside the aforesaid order of the executing Court and for declaration that the house could not be attached or sold in execution of that decree. This was registered in the Court of Civil Judge Class I, Bilaspur, as Civil Suit No. 6-A of 1964. On October, 29, 1968, which was fixed for hearing since the plaintiff did not appear, the suit was dismissed. On November 28, 1968, the plaintiff applied for restoration of the suit on the ground of his witness's illness, so that he could neither appear himself nor instruct his counsel. This application (A) was registered as M.J.C. No. 23 of 1968.
4. On April 20, 1971, the aforesaid application for restoration (M.J.C.23/68) was itself dismissed because when it was called on for hearing, neither of the parties appeared. On December 22, 1971, the plaintiff applied for restoration of M.J.C. No. 23 of 1968 (the aforesaid application for restoration of the suit). It was registered as M.J.C. No.6 of 1971. It is not necessary to enter into the grounds on which that application (B) was made. However, on December 23, 1971. M.J.C. No.6 of 1971 was allowed by the trial Court without issuing notice to the other side. Now, it is this order dated December 23, 1971. which was passed in M.J.C. No.6 of 1971, which is the subject matter of the present dispute.
5. When this matter was placed before the single Bench, the revision-petitioners contended, firstly, that the application (B) for restoration (M.J.C. No.6 of 1971) was not maintainable secondly, it having been made after about 8th months was clearly barred by time; and, thirdly, that application could not be allowed without notice to them (defendants). On the other hand, the plaintiff raised a preliminary objection that the order passed in M.J.C. No.6 of 1971 was appealable under Order 43, rule 1 (c) of the Code of Civil Procedure and since that remedy was not resorted to by the revision-petitioners, this revision cannot be heard.
6. The single Bench referred the above three questions for decision by a larger Bench. It is thus that the matter is before us.
7. After hearing Shri Ravish Agrawal for the revision-petitioners and Shri B.C. Verma for the respondents and after going through the decisio
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