Chuni Lal Chopra vs Shri Krishan Dhawan

Grover, J.—This is a petition under Order XLVII, Rule 1 of the CPC for review of the order of G. D. Khosla C. J. dismissing Civil Revision No. 364 of 1961 in limine on 11th July 1961.

The facts may be shortly stated. In March 1960 the Respondent filed a suit against the Petitioner for recovery of Rs. (sic)50/- as damages on account of malicious prosecution in this Court under the provisions of the Contempt of Courts Act. This suit was being tried by the Subordinate Judge, Kharar. On 29th August 1960 the following order was passed by the Court:

Present Defendant in person. Plaintiff has not appeared this time also. Hence the suit is dismissed under order IX, Rule 8 of the Code of Civil Procedure.

On the same date an application was filed for getting the suit restored which was signed by Shri Dalip Singh Advocate. It was stated therein that the applicant was away on Military duty on the Kashmir border and had given a power of attorney in favour of the aforesaid counsel and that owing to the rains the counsel could not reach the Court before 7-45 A. M., with the result that the suit was dismissed in default. As his absence was inadvertent and as the suit had been dismissed in the very beginning, it was prayed that it may be restored. On 30th August 1960 the Court ordered that a notice be issued to the opposite party for 19th October 1960. On that date the following order was made:

The case was called out several times. None has shown appearance. Hence I dismiss the application under Order IX, Rule 3 of the CPC Code.

An application was thereafter moved by Shri Dalip Singh Advocate bearing the date 19th October 1960 but which appears to have been presented on 31st October 1960 to the Court. It was stated therein that another counsel Shri Ram Murti had been instructed to appear on behalf of Shri Dalip Singh but when the case was called out, he did not come to know of it and that is why it was ordered to be consigned. It was prayed that the suit be restored and proper proceedings be taken in the application under Order IX, Rule 9. On 31st October 1962 the Court made an order in the following words:

Present counsel for the applicant. Application filed by the applicant is restored under Order IX, Rule 9. Notice be issued to the Respondent for appearance on 30th November, 1960. * * *.

It is clear from the order dated 30th November 1960 that the Petitioner was present in person and the case was adjourned to 6th January 1961 for reply to the application as a copy of the same had not been given to the present Petitioner. On the next date of hearing, namely, 6th January 1961 the Petitioner was present as also the counsel for the other side. He filed a reply to the application mentioned before and the Court framed the following issues:

Whether the application is not within time ?

Whether the application is in proper form ?

Whether there is sufficient cause to restore the case ?

If issue No. 3 is proved, whether the Respondent is entitled to any special costs ?

After the parties had led evidence and filed written arguments, the Court made an order on 27th April, 1961 directing restoration of the suit subject to payment of costs amounting to Rs. 20/-. The Petitioner invoked the revisional jurisdiction of this Court u/s 115 of the Code of Civil Procedure. That petition was dismissed by G. D. Khosla C. J. on 11th July 1961 in limine, as stated before. The present application for review was filed on 10th November 1961.

The learned Counsel for the Respondent has raised a preliminary objection that the present petition for review is barred by time. It is pointed out that under Article 173 of the Limitation Act the period prescribed for a review of judgment except in the cases provided for in Articles 161 and 162 is 90 days from the date of the decree or order. It is submitted that clearly the petition for review was presented after the expiry of 90 days and no application has been filed u/s 5 of the Limitation Act for extention of time. The Petitioner, who argued his case in person, was not able to meet this objection at all. The present petition for review, therefore, is liable to dismissal on this ground alone. At any rate, we have heard the Petitioner at length and we do not find any ground for reviewing the order made by G. D. Khosla C. J. on 11th July 1981. The Petitioner has sought to argue the following matters before us:

The application dated 29th August 1960 filed by Shri Dalip Singh Advocate for restoration of the suit had not been filed properly at all as the application was not signed by the Respondent himself. The power of attorney at the time when the suit was filed had been given in favour of another counsel Shri Rajinder Paul Pleader.

No affidavit was filed along with the application and for that reason it should not have been entertained.

The application for restoration was barred by time.

The learned Subordinate Judge was not justified in allowing only Rs. 20/- as costs for restoring the suit.

No notice was given for restoring the application dismissed in the absence of both the parties on 19th October 1960, and the order made by the Court on 30th October 1960 restoring the same was without jurisdiction. For that reason it must be deemed that no proceedings were pending regarding restoration of the case when the order was made on 27th April, 1961.

Now the first four points are to be found in the grounds of the revision petition which was filed in this Court and which was dismissed by G. D. Khosla C. J. It has not been shown how the order of dismissal dated 11th July 1961 would be open to review under Order XLVII, Rule 1 as none of the grounds under that provision are shown to exist in the present case. As regards the 5th point, it is suggested on behalf of the Petitioner that he was not aware of the orders made by the Court set out before and that is why he could not have pressed this point before the learned Chief Justice at the time when the revision petiton was heard by him. It is contended that the order dated 31st October 1960 was without jurisdiction and wholly illegal inasmuch as the Court gave no notice to him before the order was made. The learned Counsel for the Respondent has relied on the rule that where an application is dismissed in the absence of both the parties under Order IX, Rule 3 it is not necessary to give notice to the other party while restoring the same at the instance of the applicant. He is supported in this submission by a Division Bench decision of the Allahabad High Court in Laljit Singh and Others Vs. Pyarelal and Others, and also by what is laid down in Suraj Prasad Singh and Another Vs. Rambaran Singh and Others, , In the Allahabad case Mootham C. J. and Agarwala J. have held that where both parties are absent, and an order is made against one of them, the Court has jurisdiction to restore the same without hearing the other party. The following observations at page 714 are noteworthy:

Our attention has been drawn to the provisions of Order IX rules 9 and 14, which provide that no order made under rules 8 and 13 of that Order shall be set aside without notice to the other side; but these rules apply to a case in which an order has been passed against one party in the presence of the other party.

On the other hand Rule 4 of the same Order provides that where a suit has been dismissed because neither party had appeared when it was called on for hearing the order may be set aside without notice.

It is true that Rule 4 of Order IX does not provide in express terms that no notice would be necessary but at the same time it is not provided that the Court shall give a notice before restoring the suit as is the case in rules 9 and 14. It can, therefore, legitimately be inferred that where neither party appears and the suit is dismissed under Order IX, Rule 3 and an application is made to restore that suit to the file under Rule 4, the Court can make an order setting aside the dismissal without issuing notice to the other side. These rules apply in terms to suits but the same principle can be applied to an application for restoration of the suit as well. In the Patna case also it was held that where the application of the Plaintiff was under Rule 4 of Order IX, then no notice was required to be served, but if the application was considered to be under Rule 9, then the notice was imperative. We find no reason to hold that the omission to give notice while making the order dated 31st October 1960 which is stated to be under Order IX, Rule 9 by mistake but was made,in fact, under Order IX, Rule 4 restoring the application which had previously been made for setting aside the dismissal of the suit would render the same illegal or void. At any rate, even this matter could have been agitated by the Petitioner before G. D. Khosla C. J. but if he did not raise it, it can provide no basis for reviewing the previous order of this Court. It may well be mentioned that even after the order dated 31st October 1960 had been made, the Petitioner appeared on a number of hearings in the Court below but he never raised any objection to the validity or legality of that order.

In the result, we find no merit in this petition which is dismissed but in the peculiar circumstances we make no order as to costs.

Mehar Singh, J.

I agree.