Feroz and Co. vs Union of India

Mufti, J.—The admitted facts of the case, out of which this appeal has arisen are these: The plaintiff, Feroz and Co., filed a suit against the

defendant Union of India, for the recovery of a sum of Rs. 5,00,000/- including the security deposits amounting to Rs. 1,70,175/- on account of

the contracts entered into by him with the defendant. The suit was dismissed for default of the appearance of the plaintiff on March 27, 1964. The

plaintiff filed an application for restoration on April 25, 1964. The application began with giving cause for the non-appearance of the plaintiff and

then recited that the plaintiff wanted the suit to he restored only as records his claim for recovery of the security deposits which, it was incidentally

stated, was of the order of Rs. 1,000,85/- approximately, it being added that the defendant had already stated that the amount of the security

deposits will be paid to the plaintiff on production of 'No demand certificate'. Fir-ally it was prayed that the suit may be restored. By his order

dated 4th September, 1964 Mr. Justice S.M.F. Ali J., as he then was allowed the application on payment of Rs. 2.50/- as costs. The suit was

subsequently assigned to Mr. Justice Jaswant Singh J. By his judgment D/- 26-10-1970 the learned Judge decreed the suit for a sum of Rs.

100085/-. Aggrieved by this judgment the plaintiff has filed the present appeal. The defendant too has filed his cross-objections. This judgment will

govern the disposal of both the appeal and the cross-objections.

The learned Single Judge has prefaced his judgment with the narration of facts in the following words:

The present suit which was originally instituted on August 8, 1958, for recovery of rupees five lacs including Rs. 1,70,175/- alleged to have been

deposited as security for the due execution of the contracts mentioned in the petition of plaint was dismissed for default of the plaintiffs appearance

on March 27, 1964. An application for its restoration to the extent of Rs. 100085/- was filed on April 25, 1964, which was allowed by Hon'ble

Ali J. (as his Lordship then was) on September 4, 1964. Accordingly after the restoration of the suit the plaintiff confined his claim to the aforesaid

amount of Rs. 100085/-"" and, then after giving a detail of the proceedings taken by him, passed the decree, as aforesaid, observing:

It would be recalled that the plaintiff's claim was resisted merely on the ground that the plaintiffs claim could not be granted in the absence of ""No

demand"" certificate. As already stated ""no demand"" certificates were produced by the plaintiff on October 7, 1965 which was forwarded to the

D.D.S.T.H.O. Corps for scrutiny. Despite the lapse of more than live years the defendant has done precious little to show that these certificates

were not in order. The plaintiff is therefore entitled to the relief in respect of the security deposits. amounting to Rupees 100085/-Accordingly I

pass a decree in favour of the plaintiff and direct the defendant to release, the security deposits totalling Rs. 100085/- in favour of the plaintiff

within three months from this date failing which the plaintiff's claim to the said extent shall stand decreed and he will be entitled to realize the

aforesaid amount of Rupees 100085/- from the defendant by taking out execution of the decree. As the suit was first dismissed for default of the

appearance of the plaintiff and his counsel has consented that costs may not be awarded. I make no order as to costs.

Clearly the learned Single Judge has proceeded on the assumption that the restoration was effective with regard to a portion only of the security

deposits extending to Rs. 100085/-. The assumption is not justifiable either on facts or in law. The order dated September 4, 1964 on the

restoration application nowhere mentions that the suit shall stand restored to the extent of Rs. 100085/- only, representing a portion of the claim for

refund of the security deposits. The learned Single Judge, who dealt with the application has confined himself to the consideration of the question

whether or not a sufficient cause was made out for the nonappearance of the plaintiff and. after discussing evidence on this point, has come to the

conclusion that the non-appearance was not wilful. Thereafter he has made an order in these words:

I would, therefore, allow this application, set aside the order dated 27-3-1964 and restore the suit to its original file. This order will, however, be

subject to the payment of Rs. 250/- as costs to the learned counsel for the defendant within two days from today. The case will come up for

further hearing on 11th September, 1964.

The order is clear enough to indicate that the order of dismissal dated March 27, 1964 was set aside in its entirety and not only partially as regards

the claim for Rs. 100085/-.

Order 9 Rule 9 C.P.C. so for as relevant, reads:

Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of

action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance

when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it

thinks tit, and shall appoint a day for proceeding with the suit.

This Rule authorises the Court to set aside an order of dismissal made under Rule 8 if sufficient cause is made out by the plaintiff for his non-

appearance on the due date. Conversely if no sufficient cause is made out the court is empowered to refuse to set aside the order of dismissal.

There is no third course open to the court. It cannot modify the order of dismissal in the sense that it will maintain a part and set aside the other part

as it amounts to (sic) when the court maintains the dismissal as regards a portion of the claim and sets it aside as regards the other portion.

Accordingly where a court sets aside the order of dismissal to a limited extent only, the limitation, shall be treated as if it does not exist and the

order shall have the effect of bringing the suit to the exact position in which it was when it was dismissed. Thereafter it shall be competent for a

particular plaintiff or the plaintiffs to withdraw the suit or abandon a portion of the claim or for the court to give effect to the request of the

withdrawal of the suit or the abandonment of the claim by a particular plaintiff or plaintiffs, if already made in the application for restoration, as in

the present case. This view is supported by a decision of the Calcutta High Court in Kailas Chandra Ray and Others Vs. Hridoy Chandra Das and

Others, in which it was observed:

It would certainly appear that under Order 9. C.P.C. an application for restoration should be made so as to bring the suit back, as regards parties,

to the exact position in which it was when the suit was dismissed. After that, it is competent no doubt for a particular plaintiff or plaintiffs to apply

to be dismissed from the suit: or to withdraw the suit and such an application can he made.

There is an additional ground on which the view taken above may be supported. That ground lies in Order 23 R. 1, C.P.C. That Rule provides:

At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.

(2) Where the court is satisfied-

(a) that a suit must fail by reason of some formal defect, or

(b) that there ate other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on

such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh

suit in respect of the subject-matter of such suit or such part of a claim.

(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for

such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(4) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to withdraw without the consent of the others.

Clearly a plaintiff can withdraw his suit or abandon a portion of his claim under this rule only when the suit exists. Where the suit has ceased to

exist on account of its dismissal, there is nothing left which the plaintiff may withdraw or abandon until the dismissal is set aside and the suit

restored.

In these circumstances the assumption on which the judgment of the learned single Judge is based, is not well founded. The order of restoration

must be read as the restoration of the suit in its entirety. After the restoration of the suit, it was however, open to the learned Single Judge to make

an order in terms of the suggestion made in the restoration application which he should have appropriately treated as a composite application for

restoration of the suit and the abandonment of a portion of the claim, in case the restoration was allowed. He has made no such order till the final

judgment was passed by him. In the final judgment too he did not make any order whereby he may be said to have accepted the plaintiff's prayer

for abandonment of a portion of the claim and dismissed that part of the claim as withdrawn. It is however open to us. sitting in appeal to make

such order but we can do so as regards the claim excluding the claim for the recovery of the security deposits to the tune of Rs. 1,70,175/-

because meanwhile, the plaintiff has made it clear through his memorandum of appeal that the abandonment was related to the claim excluding the

sum of Rs. 1,70,175/-, representing the total amount of the security deposits. The averment so made can be treated as the partial withdrawal of the

request for abandonment contained in the application for restoration which the plaintiff was competent in law to do as lone as the original request

was not accepted and the necessary orders made by the court. If any authority is needed for this view, I may refer to the decisions reported as Mt.

Jaimala Kunwar and Another Vs. Collector of Saharanpur and Others , AIR 1931 Mad 337 and Yeshwant Govardhan Vs. Totaram Avasu and

Others, in which it was held that in the absence of the orders of the court on the application for withdrawal of suit or abandonment of a portion of

the claim, the suit does not cease to exist wholly or in part as regards the portion sought to be abandoned.

In what I have stated above I have assumed that the restoration application confined the claim to Rs. 100085/- only. A careful reading of that

application would make it clear that the assumption is not correct. What really it purports to convey is that the plaintiff wanted to confine his claim

to the security deposits alone which, he has incidentally stated, were to the tune of Rs. 100085/- approximately. The word ""approximately"" is clear

enough to indicate that he was not sure about the actual figure and that he casually put it at Rs. 100085/- conveying at the same time that he

wanted to continue his claim to the entire amount of the security deposits. The averment cannot, therefore, be read as an abandonment of the

portion of the security deposits as well. All that it could be said to convey was that the plaintiff wanted to relinquish his claim except as regards the

entire security deposits.

Coming now to the merits of the claim regarding the security deposits, it is clear that the defendants resisted the claim on the sole ground that the

plaintiff was not entitled to the refund of this security deposit as long as he did not produce the 'No demand certificate'. The learned single Judge

has observed that the plaintiff produced 'No demand certificates' which were forwarded to the Army authorities for scrutiny but despite lapse of

more than 5 years it was not shown that the certificates were defective or inadequate. We have no reason to take different view. In this state of

matter, the plaintiffs claim for the security deposits amounting to Rs. 1,70,175/- cannot be refused. Even the learned single Judge would not refuse

it but for the erroneous assumption that the restoration was confined to Rs. 100085/- only. The objection taken in the cross objections that the

decree granted by the learned single Judge was unmerited is wholly unfounded. As regards the claim excluding the one for security deposits it must

be treated as withdrawn and dismissed accordingly.

In the result the plaintiff's claim in the suit as regards security deposit of Rs. 1,70,175/- is decreed while his claim for the remaining- amount is

dismissed as withdrawn. The appeal is disposed of accordingly. The cross-objections filed by the defendant are dismissed. The appellant shall be

entitled to his costs in this court. The defendant is given three months' time to make the payment failing which the plaintiff will be entitled to recover

the amount is execution. The payment in either case shall, however, be subject to the order of attachment which has, meanwhile, been made by the

Income Tax Recovery Officer Srinagar against the plaintiff and conveyed to this court on August 17, 1974.

Mian Jalal-Ud-Din, J.

I agree.