JAMMU AND KASHMIR HIGH COURT
Sanjay Dhar, J.
Mohammad Rafiq Khan and Ors. – Petitioners
versus
Punjab National Bank and Ors. – Respondents
CR No.11 of 2022
Decided on 11.7.2023

IMPORTANT POINTS
(1) Restoration of suit – Provisions contained in Order XXII of CPC are applicable to proceedings relating to restoration of suit which falls under Order IX of Code.
(2) Right to sue – Separate suits can be filed against principal debtor and various guarantors – Plaintiff is well within its right not to sue any of guarantors and if any such guarantor is left out, principal borrower or guarantor, against whom suit has been filed, cannot make any grievance and suit can legitimately be prosecuted against rest of persons.

Headnote:

(A) Code of Civil Procedure, 1908 – Section 141, Order XXII Rule 11 – Restoration of suit – Procedure –Abatement of suit – In all provisions contained in Order XXII of CPC expression used is ‘plaintiff/plaintiffs or defendant/ defendants’, which shows that provisions contained in Order XXII of CPC relate to proceedings in suit – Rule 11 of said Order provides that in application of said Order to appeals, word “plaintiff” shall be held to include appellant, and word “defendant” respondent, and word “suit” appeal, meaning thereby that these provisions are applicable even to appeals – Section 141 of Code makes procedure provided under Code in regard to suits applicable to all proceedings in any court of civil jurisdiction – Explanation to said provision lays down that expression ‘proceeding’ would include proceedings under Order IX of CPC – Provisions contained in Order XXII of CPC are applicable to the proceedings relating to restoration of suit which falls under Order IX of Code.

(B) Code of Civil Procedure, 1908 – Order XXII Rule 2 –Abatement of suit – Procedure where one of several plaintiffs or defendants dies and right to sue survives – Rule 2 of Order XXII of CPC provides that where right to sue survives against surviving defendant or defendants alone, suit can proceed against surviving defendant or defendants.

(C) Code of Civil Procedure, 1908 – Order XXII Rule 2 –Abatement of suit – Death of defendant – Plaintiff has sued defendants No.1 to 5 as principal borrowers whereas defendants No.6 and 7 have stood as guarantors for repayment of loan – Liabilities sought to be enforced against defendants are joint and several – Plaintiff bank has sued defendants No.1 to 5 in their capacity as principal borrowers – It is well within its competence to seek recovery of loan amount along with interest from principal borrowers leaving out guarantors – Even if suit stands abated as against defendants No.6 and 7, who are guarantors, still then plaintiff’s cause of action as against defendants No.1 to 5 would survive – Suit cannot abate – Once an application for bringing on record legal representatives of deceased defendant is not made without prescribed period of limitation, suit as against said defendant would abate automatically but having regard to nature of suit, it may have abated against defendants No.6 and 7 but cause of action in favour of plaintiff bank to sue defendants No.1 to 5, who happen to be principal borrowers, does not come to end with death of defendants No.6 and 7.

(D) Code of Civil Procedure, 1908 – Order IX Rule 9 – Restoration of suit –Fact of flood due to which records in court complexes as well as in offices of counsels suffered damage and had to be reconstructed established – Said fact cannot be brushed aside, particularly in absence of any rebuttal to same – Plaintiff bank has made out sufficient cause for not filing application for restoration within prescribed time as also for not appearing before court when case was dismissed for non-prosecution – Trial court has exercised its discretion of condoning delay in filing restoration application and in restoration of suit – No illegality or irregularity having been committed by trial court while exercising its jurisdiction in restoring suit to its original number.

(E) Revision – Court, while exercising its revisional jurisdiction, can interfere in order passed by subordinate court if such court appears to have exercised jurisdiction not vested in it by law, or it appears to have failed to exercise jurisdiction so vested in it or it has acted in exercise of its jurisdiction illegally or with material irregularity – Revisional jurisdiction cannot be exercised to cover either error of fact or error of law.

Result: Revision petition dismissed.