KOMALCHAND BENIPRASAD Vs. POORANCHAND MOOLCHAND
HIGH COURT OF MADHYA PRADESH
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(1.) THE facts giving rise to this civil revision may shortly be stated as follows; the non-applicant plaintiff Pooranchand filed a civil suit (civil suit No. 31a of 1958) on 25-8-1958 in the Court of the III Additional District Judge jabalpur, challenging the adoption of the applicant-defendant komalchand as the son of one Halkoolal. The suit was dismissed for default of his appearance on 22-4-1959, presumably under Rule 8 of order IX of the Code of Civil Procedure. On the same date an application for restoration of the suit was made by him under Rule 9 of Order 9 ibid, which was registered as Miscellaneous Judicial Case No. 3 of 1959. This application was also dismissed for default of the plaintiffs appearance on 3-9-1959. Against the aforesaid order, dated 3-9-1959, the plaintiff non-applicant on 30-111959 filed an appeal (Miscellaneous (First) Appeal No. 161 of 1959) in the High court under Rule 1 (c) of Order XLIII of the Code of Civil Procedure. This appeal was dismissed summarily by this Court on 29-1-1960; and an appeal (Letters patent Appeal No. 13 of 1960) filed against the aforesaid summary dismissal was also dismissed summarily by a Division Bench of this Court on 21-4-1960. While rejecting the Letters Patent Appeal, the Division Bench observed as follows:
"the learned Single Judge dismissed the appeal summarily as there was no evidence whatsoever to establish that the appellant's absence on 3rd september 1959 was for sufficient cause. The learned Single Judge saw no reason to admit the appeal for giving an opportunity to the appellant to lead additional evidence for establishing that there was sufficient cause for his non-appearance on 3rd September 1959. There does not appear to us any ground on which this appeal can be admitted. It is rejected. " On the day on which an appeal (Miscellaneous (First) Appeal No. 161 of 1959) was filed in the High Court, namely, on 30-11-1959, the plaintiff non-applicant had also moved the trial Court for restoration to file the application for restoration dismissed in default of his appearance on 3-9-1959. The application was entitled as one made under Section 151 read with Rule 9 of Order 9 of the Code of Civil procedure. In a note appended to the application it was stated that in case the application was not maintainable as filed, it may be treated as an application for review of the order dated 3-9-1959. This application, which was registered as miscellaneous Judicial Case No. 31 of 1960, also came to be dismissed for default on 21-12- 1959, though the Court had noted in the order-sheet that it also appeared to be barred by time as the order challenged was passed on 3-9-1959 and the application was made on 30-11-1959, on 26-12-1959 the plaintiff non-applicant filed an application for restoration to file of his application dated 30-11-1959 dismissed for default on 21-12-1959. This application was not separately registered; and on 1-1-1960 the trial Court restored to file the application dated 30-11-1959 (which had been filed under Section 151 read with Rule 9 of Order 9 of the Code of Civil Procedure for restoring to file the application for restoration dismissed in default of plaintiffs appearance on 3-91959 ). On the plaintiff-non-applicant's application dated 30-11-1959 orders were passed by the learned Additional District Judge, on 17-10-1960. He held that, though it was conceded that the application was tenable under Section 151 of the Code of civil Procedure, it was yet governed by Article 163 of the Lim. Act; ana that consequently as the application had been filed not within thirty days of the order dated 3-9-1959, it was barred by time. He further held that there was sufficient cause for the failure of the counsel to appear in Miscellaneous Judicial Case No. 31 of 1960 when it was called on for hearing on 3-9-1959. It appears that during these proceedings the fact that an appeal and then a letters Patent Appeal had been preferred against the order dated 3-9-1959 and dismissed on 29-1-1960 and 21-4-1960 respectively was brought to the notice of the Court by the defendant-applicant by his application dated 14-9-1960 wherein it was contended that the matter having been finally decided by the High Court was res judicata and completely debarred the plaintiff-non-applicant from agitating the controversy once again. A certified copy of the High Court's order in the letters Patent Appeal was also filed. The plaintiff filed a reply to the aforesaid application on 21-9-1960; but it appears that no orders were passed on this objection of the defendant-applicant by the learned Judge, against the aforesaid order dated 17-10-1960, the plaintiff-non-applicant went up in revision (Civil Revision No. 39 of 1961) to the High Court. That revision application gave rise to a reference to a Division Bench by Tare, J. whether Rule 9 of Order 9 of the Code of Civil Procedure was applicable to applications made for restoration or applications dismissed for default filed under Rule 9 of Order 9 of the Code of Civil Procedure for restoration of the suits dismissed for default. A division Bench of this Court answered the reference saying that the provisions of rule 9 of Order 9 of the Code of Civil Procedure were not applicable to such applications (viz. , to applications for restoration of applications dismissed in default made under Rule 9 of Order 9 for restoration of suits dismissed for default); but that such applications could be made under Section 151 of the Code of Civil Procedure. It also held that such applications made under Section 151 of the Code or Civil Procedure were not fettered by any rule of limitation. In the light of the answers given by the Division Bench, Tare, J. disposed of the revision on 17-7-1961 holding, inter alia,-- (a) that as the application for restoration dated 30-11-1959 which was made under Section 151 of the Code of Civil Procedure was not fettered by any law of limitation, its dismissal as barred by limitation has to be set aside: and (b) That as the trial Court had already held that there was sufficient cause for the plaintiff-non-applicant's absence on 3-9-1959, the application for restoration of the suit dismissed for default filed on 22-41959 must be enquired into. In the result, he remanded the case to the trial Court for proceeding with the enquiry relating to the application for restoration of the suit filed on 22-4-1959. It may, however, be noted that neither the fact that appeals had been filed in the high Court against the dismissal of the application for restoration of the suit dated 3-9-1959 and that these appeals had been dismissed by it nor the objection raised by the defendant-applicant before the trial Court on 14-9-1960 was brought to the notice of the learned Judge dealing with the civil revision. However, when the case was heard by the Additional District Judge on remand, it was contended that the application could not be enquired into on the ground that it was barred by res judicata in view of the Order of the High Court dated 21-41960 passed in Letters Patent Appeal No. 13 of 1960. This objection was overruled by the trial Court by its order dated 21-2-1964. It held that in view of the Order of the Division Bench in Civil Revn. No. 39 of 1961 reported in Pooranchand v. Komalchand, AIR 1962 Madh Pra 64 no appeal lay from an order dismissing in default an application for restoration of a suit dismissed for default and that consequently the order of the High Court in Letters Patent Appeal No. 13 of 1960 could be of no avail to the defendant-applicant, especially when there was an express order of the High Court in Civil Revision No, 39 of 1961 directing it to enquire into the application dated 22-4-1959 for restoration of the suit dismissed for default. Ultimately, on 31-3-1964, the trial Court allowed the application dated 22-4-1959 and restored the suit to file holding, inter alia, that there was sufficient cause for the plaintiff-non-applicant's non-appearance in court on 22-4-1959 on which date his suit had been dismissed for default of his appearance. The defendant-applicant challenges the aforesaid order.
(2.) THIS civil revision first came up for Hearing before Dixit, C. J. who, vide his order dated 27-4-1965, directed that it be placed for hearing before a Division bench.
(3.) THE contention of the learned counsel for the defendant-applicant is that the order dated 3-9-1959 dismissing in default the plaintiff's application for setting aside the dismissal of the suit for default on 22-4-1959 had merged in the order of the High Court dated 21-4-1960 passed in Letters Patent Appeal No. 13 of 1960; and that consequently from and after 21-4-1960 the Courts had no jurisdiction to set aside the order of the trial Court dated 3-9-1959, which had ceased to exist in the eye of law.;
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