Transport Corporation of India vs G. Ramireddy and others

This Civil Miscellaneous Appeal was filed by the Transport corporation of India, through its Manager, aggrieved by the order dated 4-10-1991 in IA No.612 of 1990 in OP No.513 of 1983 on the file of the Chairman, Motor Accidents Claims Tribunal (Dist. Judge), Nizamabad, whereby it dismissed the above IPA filed by the appellant, on the ground that the petition which was filed for the same relief i.e., which was filed for condonation of delay in filing the petition for setting aside the ex parte order is barred by Order 9, Rule 9 CPC and therefore, it is not maintainable.

It is submitted by the learned Counsel for the appellant that the order passed by the Tribunal dismissing the IA No.612 of 1990 in OP No.513 of 1983 to condone the delay as not maintainable in law is illegal, erroneous and unjust. It is further submitted that the dismissal of IA No.1378 of 1988 is not a bar for the maintainability of IA No.612 of 1990 and therefore, should have allowed IA No.612 of 1990 in the interest of justice. It is further submitted that Section 141 CPC read with Order 9, Rule 9 CPC do not prohibit the appellant from filing applications in the original suits for the same relief, when the first petition is dismissed by the Court. Therefore the Tribunal should have entertained IA No.612 of 1990.

To appreciate the contention of the learned Counsel for the appellant, it is better to have a glance of the facts of the case: That OP No.513 of 1983 was filed for grant of compensation by the claimants, wherein the appellant was set ex parte in the OP and a compensation of Rs.15,000/-under no fault liability was awarded u/s 92-A of the Motor Vehicles Act on 16-10-1984 and on 4-11-1988 the appellant filed a petition to set aside ex parte order and condone the delay in filing the petition in for setting aside the order u/s 5 of the Limitation Act. On 13-9-1989, the said appellant was set ex parte and the IANo.1378 of 1988 was dismissed for default. Then IA 612 of 1990 was filed for the same relief to condone the delay from 15-11-1984 to 19-6-1990. The Tribunal examined the maintainability of the IA No.612 of 1990 and after examining PW1, Tapan Roy, Branch Manager, under the petitioner-appellant, the Tribunal dismissed [A No.1378 of 1988. Earlier the petition IANo.1378 of 1988 was dismissed for default, as the petitioner therein did not appear on the date of hearing i.e. 13-9-1989. The learned Judge observed that the dismissal falls under Order 9, Rule 9 CPC and when the dismissal falls under Order 9 Rule 8 CPC, then Order 9, Rule 9 CPC governs the circumstances and as such the petitioner can file a petition for setting aside the order of dismissal. Order 9, Rule 9 CPC bars fresh petition being filed, but the petitioner has filed fresh petition instead of filing petition under Order 9 Rule 8 CPC for setting aside the order under which the earlier petition was dismissed on 13-9-1989. The Tribunal further observed that the present petition which was filed for the same relief i.e. which was filed for the relief of condonation of delay in filing the petition for setting aside the ex parte order is barred by Order 9, Rule 9 CPC.

Attacking the reasons given by the learned Chairman of the Tribunal, the Counsel for the appellant has submitted that Order 9, Rule 9 CPC prohibits filing of suit for the same relief which was dismissed earlier, but it does not bar filing of fresh applications in the original suit for the same relief for which Hie applications filed earlier were dismissed by the Court and therefore, the reasoning given by the Tribunal is contrary to Order 9, Rule 9 CPC. In support of his contention he relied on a judgment of this Court between Medam Sankaranarayan Vs. Gaddala Tripathi Tao and Others, , wherein the learned Judge, in similar circumstances, considered the import of Order 9, Rule 9 read with Section 141 CPC.

The facts leading to the said judgment are that the plaintiff in OS No.50 of 1967 on the file of the subordinate Judges Court, Kurnool filed two petitions IA No.227 and 228 of 1968, former for amendment of plaint and the latter to add some more parties as defendants to the suit. On 12-7-1968 they were dismissed for default, for the non-appearance of the plaintiff. Thereupon he invoked the provisions of Order 9, Rule 9 CPC to his aid and filed 1A Nos.347 and 348 of 1968 on 3-9-1968 for setting aside the order of dismissal for default in the earlier applications, but they also met with the same fate. Once again the plaintiff filed IA Nos.537 and 538 of 1968 one for adding parties and the other for amending the plaint. The Additional Subordinate Judge, Kurnool dismissed those two petitions holding that the third batch of petitions on the same subject-matter would not arise and could not be entertained in view of the fact that IA Nos.347 and 348 of 1968 have been rejected on merits.

Aggrieved by the said dismissal, the plaintiff filed a revision petition before the High Court. While dealing with the revision petition, the learned Judge considered the arguments of the Counsel therein that inspite of the petitioner Counsel submitted therein that neither Section 11 CPC nor any principle of constructive res judicata could apply to these cases because none of the earlier petition filed on the first occasion had been decided on its merits. The objection of the respondent Counsel therein was that the petitioner has chosen to invoke the procedure permitted under Rule 9 of Order 9 CPC, by filing applications for setting aside the earlier orders of dismissal for default and he has no right to bring fresh applications in respect of the same reliefs, and he relied on the language of Order 9, Rule 9 CPC, which reads as follows:-

".....When 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."

Basing on the provisions of Order 9, Rule 9 CPC, it was submitted by the learned Counsel for the respondent therein that since the applications for amendment of plaint and addition of parties are proceedings in a Court of Civil Jurisdiction, the bar contained in Order 9, Rule 9 should apply to them also. Applications IA Nos.227 and 228 for amendment and for addition ofparties were earlier dismissed for default and, therefore, by virtue of the bar contained in the first part of Rule 9 the petitioner was precluded from brining fresh applications for the same reliefs, since the latter part of the Rule permitted the petitioner to file an application for setting aside the dismissal he availed himself of the remedy and is now precluded from filing fresh applications for the original reliefs.

After considering the above said arguments of the Counsel of the appellant and respondent therein, and after going through catena of decisions, (he learned Judge held that the applications for amendment of pleadings and addition of parties are only interlocutory matters and not proceedings of original nature, within the meaning of Section 141 CPC. The learned Judge observed that the scope of Section 141 CPC is limited to the proceedings of Original nature and it applies to petition for probate, guardianship and similar petitions are initiated by filing original petitions and they go through practically the same procedure as prescribed for suits. Since they are not separately dealt with in the Code, Section 141 enables the procedure prescribed for suits to be adopted to such proceedings. Interlocutory applications which are not of original nature need not go through such elaborate procedure. Besides, they are specially dealt with in different provisions of the Code. It is therefore, reasonable to come to the conclusion that only proceedings of original nature are taken into account u/s 141 CPC. The learned Judge held that the applications for amendment of plaint and addition of parties are only interlocutory matters and not proceedings of original nature and therefore, they are not proceedings in civil Court within the meaning of Section 141 CPC and in that view of the matter, the bar contained in the first part of Order 9 Rule 9 CPC does not apply to the two petitions filed by the petitioner, though similar applications had been earlier dismissed for default, and those applications, therefore, were maintainable. The fact that the petitioner had earlier adopted the remedy of filing applications for setting aside the orders of dismissal for default would not affect the merits of the case.

If that is the position of law under Order 9, Rule 9 CPC, the learned Counsel for the respondents has contended that Section 141 Explanation, does not include any proceedings under Article 226 of the Constitution. The petitioners Counsel has not submitted that the proceedings are applicable under Article 226 of the Constitution applicable to this case. Therefore, the objection taken by the Counsel for the respondents has no legal basis.

The learned Counsel for the respondents further submitted that Order 9, Rule 8 contemplates that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

Under Rule 8 two remedies are available if a suit is dismissed under the Rule i.e., to apply under Rule 9 for restoration of the suit, or to apply for a review of the order, but no fresh suit lies on the same cause of action as per Rule 9. As held by the learned single Judge in the Medam Sankaranaraya''s case, referred supra, the application filed by the appellant in this matter is not a original suit, but the applications are filed in the original petition to set aside the ex parte order and to condone the delay in filing the petition to set aside the ex parte order. Therefore, the argument of the learned Counsel for the respondent is liable to be rejected on that ground.

Sub-section (2) of Section 169 of the Motor Vehicles Act, 1988 specifies that the Claims Tribunal shall have all the powers of a civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

It is not in disputed that the Motor Accident Claims Tribunal has all the powers of a civil Court and that it is civil Court for all purposes. But we have to see whether the Order passed by the Tribunal is within the scope and ambit of Order 9, Rule 9 CPC read with Section 141 of the Code.

Coming to the application of dicta laid down by this Court in the above referred judgment, in the present case, when the IA No.1378 of 1988 was filed to condone the delay in filing the petition to set aside ex parte order, it was dismissed on 13-9-1989 on the ground of default by the petitioner-appellant. Therefore, once again for the same relief, the IA No.612 of 1990 was filed in OP No.513 of 1983 and the learned Chairman, of the Tribunal dismissed the said IA on the ground that Order 9, Rule 9 bars filing of fresh petition when once similar nature of petition was dismissed by the Tribunal and the remedy is to file a petition under Order 9, Rule 8 CPC. But as seen from the judgment of this Court, referred to above, the order of the learned chairman, is incorrect. The appellant has not filed any fresh suit, but the appellant once again filed IA No.612 of 1990 for the same relief to condone the delay in filing the petition to set aside the ex parte order dated 16-10-1984. Therefore, it is an interlocutory application in the OP and as such there is no bar as contemplated under Order 9, Rule 9 CPC and as such it is maintainable.

Accordingly, IA No.612 of 1990 is directed to be restored on the file of the Chairman, Motor Accidents Claims Tribunal, Nizamabad and it is directed to dispose of the above application in accordance with law.

In the result, the Appeal is allowed with costs of Rs. 1,000/- to be credited to the A.P. Chief Justice Defence Funds, within a period of four weeks from today.