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2026 Supreme(Online)(Mad) 127

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Honourable Mr.Justice R.SAKTHIVEL
RAJARAJAN – Appellant
Versus
K.P.SELVAM – Respondent
C.R.P.No.603 of 2023|O.S.No.91 of 2011|I.A.No.216 of 2016

Advocates:
For the Appellants/Petitioners: Anvitha.R
For the Respondents: K.Arunbabu, A.Sriram

A conditional order under Order IX Rule 9 CPC allowing restoration on payment of costs, with automatic dismissal on default, is a single appealable order under Order XLIII Rule 1(c); revision under Section 115 is not maintainable.

Headnote:(A) Code of Civil Procedure, 1908 - Order IX Rule 9 - Order XLIII Rule 1(c) - Section 115(2) - Restoration of suit dismissed for default - Conditional order allowing restoration subject to payment of costs, with automatic dismissal on default - Such order constitutes a single, final order and is appealable under Order XLIII Rule 1(c); revision under Section 115 is not maintainable. (Paras 10-13)

(B) Jurisdiction - Appeal versus Revision - When a court passes a conditional order that automatically dismisses the application upon non‑compliance without any further direction, no separate order of dismissal is required - The original order is the only order and is appealable - Preliminary objection as to maintainability of revision upheld. (Paras 10, 12)

Facts of the case:
The plaintiff filed a suit in 2011 which was dismissed for default on 27 July 2016. He then filed an application under Order IX Rule 9 CPC to restore the suit. The trial court, by a conditional order dated 30 November 2022, allowed the restoration subject to the plaintiff paying costs of Rs.1,000 to the 6th defendant by 9 December 2022, failing which the petition would stand dismissed. The plaintiff did not comply, and the petition was automatically dismissed. The plaintiff challenged the order by a civil revision petition under Article 227 of the Constitution of India. The respondents raised a preliminary objection that the order was appealable under Order XLIII Rule 1(c) and not revisable.

Findings of Court:
The High Court held that the order for payment of costs and the automatic dismissal on default formed a single, indivisible order. No further order was necessary; the docket entry on 9 December 2022 was merely a formal recording. Relying on Chintakayala Ramayya v. Mithinti Lakshmayya (AIR 1944 Mad 383) and Devaki v. S.Vani (2002‑1‑LW‑345), the Court concluded that the remedy of appeal lies under Order XLIII Rule 1(c) of the CPC, and by virtue of Section 115(2), no revision is maintainable. The civil revision petition was dismissed as not maintainable. (Paras 10-14)

Issues: (i) Whether the trial court’s conditional order allowing restoration on payment of costs with automatic dismissal for default is an appealable order under Order XLIII Rule 1(c) or revisable under Section 115 CPC? (ii) Whether the order of costs and the order of dismissal constitute a single order? (iii) Whether the delay in filing copy application and revision indicates lack of bona fides? (Para 11 and 13)

Ratio Decidendi: A conditional order that provides for automatic dismissal upon failure to comply with a condition (such as payment of costs) within a specified time is a final, composite order. No separate order of dismissal is required. Such an order falls within the ambit of Order XLIII Rule 1(c) (by analogy with Order IX Rule 13 orders) and is appealable. Where an appeal lies, revision under Section 115 is barred by sub‑section (2) of that section. (Paras 10-13)

Result: Civil Revision Petition dismissed as not maintainable. No order as to costs. (Para 14)

ORDER

Feeling aggrieved by the Fair and Decreetal Order dated November 30, 2022 passed in I.A.No.216 of 2016 in O.S.No.91 of 2011 on the file of the ‘Subordinate Court, Attur,’ (hereinafter referred to as the ‘Trial Court’), the Petitioner therein has filed this Civil Revision Petition under Article 227 of the Constitution of India.

2.For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

3.The Plaintiff filed the Original Suit against the Defendants seeking the relief of declaration of certain documents as null and void, permanent injunction and also seeking an alternative relief of Partition and separate possession.

4.The Suit was filed in the year 2011. When the Suit was posted on July 27, 2016 for the appearance of the Plaintiff, the Plaintiff failed to appear before the Trial Court and conduct the case and hence, the suit was dismissed for default on July 27, 2016. Thereafter, the Plaintiff filed a petition under Order IX Rule 9 of the ‘Code of Civil Procedure, 1908’ (‘CPC’ for short) to set aside the dismissal order and to restore the Suit on file, in I.A.No.216 of 2016. After hearing both sides, the Trial Court passed a conditional order dated November 30, 2022 stating that the Interlocutory Application is allowed subject to payment of costs of Rs.1,000/- payable by the Plaintiff to the 6^th Defendant before December 9, 2022, failing which, the petition shall be dismissed. The Plaintiff did not comply with the conditional order passed by the Trial Court. Hence, the said Interlocutory Application stood dismissed.

5.Feeling aggrieved by the Fair and Decreetal Order dated November 30, 2022, the Plaintiff has filed this Civil Revision Petition.

6.Ms.R.Anvitha, representing Ms.V.Srimathi, learned counsel on record for the Revision Petitioner submits that the Advocate of the Petitioner / Plaintiff before the Trial Court failed to take note of the Order passed by the Trial Court and convey the same to the Plaintiff. Hence, the Plaintiff could not comply with the conditional order. The Plaintiff has no deliberate or willful intention to cause any delay in the proceedings or disobey the order of the Court. The Plaintiff is ready to deposit the said amount as may be directed by this Court. Accordingly, she prayed to set aside the order of the Trial Court.

7.Per contra, Mr.K.Arunbabu, learned counsel appearing for the 4^th Respondent and Mr.A.Sriram, learned counsel appearing for the 7^th Respondent submit that the order under challenge is an appealable Order under Order XLIII Rule 1(c) of CPC. Hence, the present Civil Revision Petition is not maintainable. They submit that the suit was filed in the year 2011 and that, with a view to harass the Defendants 3 to 8, the Plaintiff wantonly allowed the suit to be dismissed for default and thereafter filed a petition for restoration, only with an intention to delay the proceedings and to secure unlawful enrichment. The learned Counsels further submit that the Trial Court dismissed the petition on November 30, 2022, but the Plaintiff filed Copy Application only on January 05, 2023 and no reason was assigned for the same. The Certified Copy of the Order made in the Interlocutory Application was delivered on January 30, 2023, but the revision was filed on February 28, 2023. This itself shows the plaintiff's intention to prolong the proceedings and cause hardship to the Defendants. The conduct of the Plaintiff is not bona fide. Therefore, the learned Counsels appearing for the Respondents 4 and 7 pray that this Civil Revision Petition be dismissed.

8.This Court has considered the submissions made by both sides and perused the records.

9.The Suit was dismissed for default on July 27, 2016. The restoration petition was filed by the Plaintiff on August 11, 2016 and the same was returned for curing some defects. After curing the defects, the plaintiff re-presented the same on December 17, 2017 and the same was numbered on April 27, 2018. Sixth Res

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2026 Supreme(Online)(Mad) 127

IN THE HIGH COURT OF JUDICATURE AT MADRASHonourable Mr.Justice R.SAKTHIVELRAJARAJAN – AppellantVersusK.P.SELVAM – RespondentC.R.P.No.603 of 2023|O.S.No.91 of 2011|I.A.No.216 of 2016

A conditional order under Order IX Rule 9 CPC allowing restoration on payment of costs, with automatic dismissal on default, is a single appealable order under Order XLIII Rule 1(c); revision under Section 115 is not maintainable.

Cases Referred (1)

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Honourable Mr.Justice R.SAKTHIVEL
RAJARAJAN – Appellant
Versus
K.P.SELVAM – Respondent
C.R.P.No.603 of 2023|O.S.No.91 of 2011|I.A.No.216 of 2016