Smt. Zareena Taj vs Khurmathunnisa and Another

N.S. Veerabhadraiah, J.—This is the plaintiff''s revision being aggrieved of the order dated 20-3-2003 passed in O.S. No. 87 of 1994 by the II Additional Civil Judge (Junior Division), Hassan, refusing to restore the suit though ordered for restoration in Miscellaneous No. 1 of 2000.

The brief facts of the case are as follows:

The plaintiff Smt. Zareena Taj filed a suit against the defendants for possession before the learned Principal Civil Judge (Junior Division), Hassan. The suit came to be numbered as O.S. No. 87 of 1994 and made over to the II Additional Civil Judge (Junior Division), Hassan. The said suit came to be dismissed for non-prosecution on 20-9-1999. The plaintiff filed a Miscellaneous Petition under Order 9, Rule 9 of the CPC for restoration of the suit by setting aside the order of dismissal dated 20-9-1999. The said Miscellaneous Petition came to be numbered as Miscellaneous No. 1 of 2000 by the Principal Civil Judge (Junior Division), Hassan. The notice sent to the respondents came to be refused. Thereafter, the Court recorded the evidence of P.W, 1 and marked Ext. P. 1. The learned Principal Civil Judge (Junior Division), Hassan, appreciating the evidence allowed Miscellaneous No. 1 of 2000 by setting aside the order of dismissal of O.S. No. 87 of 1994, dated 20-9-1999 and restored the suit. After allowing Miscellaneous No. 1 of 2000, it was made over to the II Additional Civil Judge (Junior Division), Hassan. When the matter came up before the II Additional Civil Judge (Junior Division), Hassan, he refused to restore the suit and passed the following order:

"Miscellaneous No. 1 of 2000 is not filed before this Court and even though the suit is dismissed by this Court, no such Miscellaneous Petition is filed before this Court. Hence, restoration of suit is not restored".

It is this order which is questioned in the present revision.

Learned Counsel for the petitioner contended, it is no doubt true that the suit came to be dismissed for non-prosecution on 20-9-1999 and immediately a Miscellaneous Petition under Order 9 Rule i9, CPC was filed in the office of the learned Principal Civil Judge (Junior Division), Hassan which came to be numbered as Miscellaneous No. 1 of 2000 and the same was disposed of by the learned Principal Civil Judge (Junior Division), Hassan by allowing the Miscellaneous Petition. Therefore, there is no error apparent on the face of the record. The learned II Additional Civil Judge (Junior Division), Hassan, instead of proceeding with the suit passed the impugned order erroneously forgetting the administrative powers of the learned Principal Civil Judge (Junior Division), Hassan. He also contended that there are 3 Courts of Civil Judges (Junior Division), at Hassan viz., (1) Principal Civil Judge (Junior Division), (2) I Additional Civil Judge (Junior Division), and (3) II Additional Civil Judge (Junior Division), and it is the Principal Civil Judge (Junior Division), Hassan, who has control over the administration. Therefore, there is no error apparent on the face of the record and that the learned II Additional Civil Judge (Junior Division), Hassan, ought not to have dismissed the suit. Accordingly, prayed to allow the revision.

The respondents though served remained unrepresented.

In the light of the submissions, the point for consideration that arises is:

Whether the petition for restoration under Order 9, Rule 9, CPC has to be filed before the same Court which dismissed O.S. No. 87 of 1994 and thereby the impugned order suffers from infirmities?

It is not in dispute that O.S. No. 87 of 1994 filed before the learned Principal Civil Judge (Junior Division), Hassan, was made over to the Court of the learned II Additional Civil Judge (Junior Division), Hassan. The suit came to be dismissed for non-prosecution on 20-9-1999. It is also not in dispute that Miscellaneous Petition under Order 9, Rule 9 CPC was filed by the petitioner before the learned Principal Civil Judge (Junior Division), Hassan. But, without making over the said petition to the Court of the learned II Additional Civil Judge (Junior Division), Hassan, the learned Principal Civil Judge (Junior Division), has himself disposed of Miscellaneous No. 1 of 2000.

Chapter II of Karnataka Civil Courts Act, 1964 deals with the Establishment and Constitution of Civil Courts. Sections 7, 8 and 9 of the Karnataka Civil Courts Act, 1964 reads thus:

"7. Establishment of Courts of Civil Judges (Junior Division).--(1) There shall be in each district such number of Courts of Civil Judges (Junior Divisions) as may be fixed by the State Government, in consultation with the High Court. (2) Each Court of a Civil Judge (Junior Division) shall be presided over by a Civil Judge (Junior Division).

Number of Civil Judges (Senior Division) and Civil Judges (Junior Division) to the Court of a Civil Judge (Senior Division) or Civil Judge (Junior Division).-The State Government may, in consultation with the High Court, fix and from time to time vary, by notification, the number of Civil Judges (Senior Division) to be appointed for the Court of a Civil Judge (Senior Division) and the number of Civil Judges (Junior Division) to be appointed for a Court of Civil Judge (Junior Division).

Distribution of work when more than one Judge is appointed to a Court.--(1) When more than one Civil Judge (Senior Division) is appointed to the Court of a Civil Judge (Senior Division) or more than one Civil Judge (Junior Division) is appointed to a Court of Civil Judge (Junior Division), one of the Civil Judges (Senior Division) or one of the Civil Judges (Junior Division), shall be appointed as the Principal Civil Judge (Senior Division) or the Principal Civil Judge (Junior Division) and the other Additional Civil Judges (Senior Division) or Additional Civil Judges (Junior Division), as the case may be.

(2) Each of the Judges appointed to the Court of a Civil Judge (Senior Division) or a Court of Civil Judge (Junior Division) may exercise all or any of the powers conferred on such Court by this Act or any other law for the time being in force,

(3) Subject to the general or special orders of the District Judge, the Principal Civil Judge (Senior Division) or the Principal Civil Judge (Junior Division) may, from time to time make such arrangements as he thinks fit, for the distribution of the business of the Court among the various Civil Judges (Senior Division) or Civil Judges (Junior Division) thereof".

Section 7 deals with the Establishment of Courts of Civil Judges (Junior Division) by the State Government in consultation with the High Court wherein each Court shall be presided over by a Civil Judge (Junior Division), Particularly Section 9(3) provides for administrative arrangement and distribution of work to be done by the Principal Civil Judge (Junior Division), that too, for purposes of smooth administration of work. In the present case, there are 3 Courts via., (1) Principal Civil Judge (Junior Division), Hassan (2) I Additional Civil Judge (Junior Division), Hassan and (3) II Additional Civil Judge (Junior Division), Hassan. That for purposes of administrative arrangement and distribution of work, it is the Principal Civil Judge (Junior Division), Hassan, who is empowered. Likewise O.S. No. 87 of 1994 was made over to the Court of II Additional Civil Judge (Junior Division), Hassan. It is no doubt true that after the dismissal of the suit, Miscellaneous Petition under Order 9, Rule 9, CPC came to be presented in the office of the learned Principal Civil Judge (Junior Division), Hassan and the same was retained on the file of the learned Principal Civil Judge (Junior Division), Hassan and numbered as Miscellaneous No. 1 of 2000. The jurisdiction of all the Civil Judges (Junior Division) is one and the same. Even otherwise, if the work not allotted to a Court were to be disposed of by another Court of Civil Judge (Junior Division), having jurisdiction, it is only a mere irregularity not affecting the jurisdiction. In the present case, the Miscellaneous Petition came to be disposed of by the learned Principal Civil Judge (Junior Division), Hassan. Thereby it does not affect the jurisdiction of the Court of the II Additional Civil Judge (Junior Division), Hassan. Therefore, the observation of the II Additional Civil Judge (Junior Division), Hassan, that the petitioner has not filed any Miscellaneous Petition before the very same Court and therefore, he is not restoring the suit is erroneous and not sustainable. That apart, Order 9, Rule 9, CPC reads thus:

"9. Decree against plaintiff by default bars fresh suit.--(1) 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 fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party".

The overall reading of Order 9 rule 1, CPC makes clear that for restoration of the suit, he has to make an application under Order 9, Rule 9, CPC before the Court which has jurisdiction and this proviso has to be read along with Section 9(3) of the Karnataka Civil Courts Act, 1964 which empowers the learned Principal Civil Judge (Junior Division), Hassan, administrating the work of distribution of the business of the Court among various Civil Judges (Junior Division).

For the foregoing reasons, the impugned order of the II Additional Civil Judge (Junior Division), Hassan is liable to be set aside. Accordingly, the revision is allowed directing the learned Civil Judge (Junior Division), whether it is the Principal Civil Judge (Junior Division), Hassan, the I Additional Civil Judge (Junior Division), Hassan or the II Additional Civil Judge (Junior Division), Hassan to restore O.S. No. 87 of 1994 and dispose of the suit in accordance with law.

The petitioner is directed to appear before the Trial Court on 5-4-2004. The Trial Court shall issue notice to the respondents and dispose of the matter in accordance with law.