APPLICATION UNDER ORDER 9, RULE 9, C. P. C. [CD1]
APPLICATION
FOR RESTORATION OF SUIT WHERE SUIT WAS DISMISSED IN DEFAULT OF THE PLAINTIFF
ONLY.
IN
THE COURT OF THE....................
Application
No..................... of 19....................
Under
Order 9, Rule 9 C. P. C.
in
Suit
No..................... of 19........................................
A.
B................................................................... Plaintiff
versus
C.
D............................................................... Defendant
Application for restoration of
the suit dismissed in default on.................... 19....................
Sir,
The plaintiff most respectfully
submits as under:
1.
That the suit was fixed for..........
19.......... for evidence/arguments............... It was called at 11 a. m.
and the plaintiff went to call his counsel Shri.................... who was not
available at his seat at that time, and the plaintiff informed the Court of
this fact, and again went to call his counsel, whom he found in Court
No..................... arguing another matter and he said to the plaintiff to
ask the Court for time upto lunch hours. Accordingly the plaintiff requested
the Court to wait till lunch hours. But, however, the learned Court dismissed
the suit in default of the plaintiff.
2.
That in the circumstances it is expedient that
the suit be restored to its original number setting aside the ex-pane order aforesaid.
PRAYER
It is, therefore, most
respectfully prayed that your Honour may be pleased to set aside the expane dismissal order and restore the
suit in its original number, and dispute it of on merits after taking evidence
and hearing the parties.
It is accordingly prayed.
Applicant
Through
Advocate
Place:....................
Dated:....................
Affidavit in support of the
application to be filed.
CASE LAW
Order 9, Rule 9.
WHETHER
AN ELECTION PETITION CAN BE RESTORED? —(YES) — WHO CAN FILE PETITION FOR
RESTORATION OF AN ELECTION PETITION — (THE PETITIONER HIMSELF AND NOT ANYBODY
ELSE).
Order 9 Rule 9 of the Code (and
not Rule 13) relied by the appellant, would be the relevant provision for
restoration of an election petition. That can be invoked in an appropriate case
by the election petitioner only and not by a respondent. By its own language,
Rule 9 provides that where a suit is wholly or partly dismissed under Rule 8,
the plaintiff shall be precluded from bringing a fresh suit but he may apply
for an order to set the dismissal aside. Under this rule, therefore, an
application for restoration can be made by the petitioner. Since it is a
provision for restoration, it is logical that the provision should be
applicable only when the party on account of whose default in appearance the
petition was dismissed, makes an application to revive the petition to its
former stage prior to its dismissal. In the instant case the election
petitioner and not the respondent 19 who is in appeal before us, could have
asked for the relief of restoration. The appellant contended that the statutory
scheme authorises an elector at whose instance an election petition could have
been filed to get substituted in the event of withdrawal or abatement and
applying that analogy, he urged that a petition for restoration would also lies
at the instance of a respondent. The ambit of the provisions relating to
withdrawal and abatement cannot be extended to meet other situations. Specific
provisions have been made in the Act to deal with the two situations of
withdrawal and abatement and a person neither to not a party or one of the
respondents who was entitled to file an election petition has been permitted to
substitute himself in the election petition and to pursue the same in
accordance with law. These provisions cannot be extended to an application
under Order 9, Rule 9 of the Code and at the instance of a respondent or any
other elector a dismissed petition cannot be restored1.
BAR
UNDER THE RULE AGAINST LEGAL REPRESENTATIVES.
We are however not impressed by
the argument that the ban imposed by Order 9, Rule 9 creates merely a personal
bar or estoppel against the particular plaintiff suing on the same cause of
action and leaves the matter at large for those claiming under him. Beyond the
absence in Order 9, Rule 9 of the words referring "to those claiming under
the plaintiff there is nothing to warrant this argument. It has neither
principle, nor logic to commend it...................... The rule would
obviously have no value and the bar imposed by it would be rendered meaningless
if the plaintiff whose suit was dismissed for default had only to transfer the
property to another and the latter was able to agitate rights which his vendor
was precluded by law from putting forward.
In the instant case it was
appellant who brought the previous suit which resulted in a decree for eviction
of the tenant on July 31, 1961 a date when respondent 1 had already taken
possession of the premises by virtue of the transfer made by the Official Liquidator.
Thus the identity of the subject-matter being substantially the same, thus case
clearly falls within the ambit of the ratio in the case supra. On this ground
alone therefore the appellant is entitled to succeed because the High Court
with due respect does not appeal to have construed the scope of Order 9, rule
9, C. P. C. properly2.
SCOPE
OF THE RULE.
It is inherent in the
constitution of the Court that it may own its mistake and rescind an illegal
order which may not be having any sanction of law. The Court can do that as
soon as it becomes obvious to it that it passed the order on an erroneous view
of law when it was not conscious of the true scope of its own jurisdiction3.
An application under 0. 9, R. 9
in a proceeding in a Court of Civil jurisdiction, there is no reason why the
procedure provided in regard to suits cannot be made applicable to a proceeding
under this Rule. There is no justification to read any such restrictive words
in Section 141. The expression "all proceedings" is of a very wide
connotation and to restrict it to a proceeding which is original in nature and
wholly independent of a suit will be doing violence to the language of the
section4.
It is true that under O. 9, Rule
9, if the first suit has been dismissed either wholly or partly under Rule 8,
the plaintiff would not be permitted for bringing a fresh suit on the same
cause of action. He is however entitled to make an application for an order to
set aside the dismissal in default of the first suit5.
SCOPE
OF ENQUIRY UNDER THE RULE
The scope of enquiry in an
application under this Rule is confined to questions regarding the service of
summons and whether there was any sufficient cause preventing the appearance of
the defendant, when the suit was called on for hearing6.
APPLICABILITY
TO PAUPER APPLICATION.
The provisions of Order 9 apply
to pauper applications by virtue of Section 141 and a pauper application
dismissed for default of appearance of the petitioner can be restored under
this Rule7.
CONDITION
PRECEDENT FOR PASSING ORDER UNDER THIS RULE.
In case the Court makes a finding
that sufficient cause has not been made out, then only the Court would be in a
position to dismiss an application but until that finding is arrived at and if
on the contrary there was sufficient cause for non-appearance, the Court would
be bound to make an order setting aside the dismissal. In such circumstances
there is no question of exercising any option or discretion in the matter8.
NON—APPLICABILITY
OF THE RULE.
The Rule does not apply to
applications for probate or letters of Administration9.
A judgment in probate proceedings
operates as a judgment in rem unlike a judgment in an ordinary suit which
operates inter-parties and hence it will not be appropriate to apply the
provisions of this Order which are intended to apply to ordinary suits to
applications for probate or letters of administration10.
NO
DIFFERENCE BETWEEN A MAJOR AND MINOR.
When a suit is dismissed for
default whether the plaintiff is a major or minor, that dismissal can be set
aside only on sufficient ground being shown".
When a suit is restored after it
was dismissed on ground that neither plaintiff nor defendant has appeared on
date fixed, defendant is entitled both in equity and has all right to notice of
the date fixed for hearing of the case after its restoration12.
Once the court post the case for
judgment, there can be no application to recall or advance the hearing for any
purpose other than pronouncement of judgment13.
SUIT
FOR RECOVERY OF MONEY.
The document writer cannot be
treated as an attesting witness for the will to prove its execution14.
1.
Dr. P. NallaThampy Thera v. B. L. Shankar and
others. (1984) Supp. S. C. C. 631: A. I. R. 1984 S. C. 135.
2. M/s.
Parasram Hanand Rao v. M/s. Shanti Prasad Narinder Kumar Jain and another,
(1980) 2 S. C. C. 565: A. I. R. 1980 S. C. 1655: 1980 U. J. (S. C. ) 719: 1980
Cr. L. J. (Civ.) 367.
3.
Jaspal Singh v. Municipal Corporation of Delhi,
A. I. R. 1972 Delhi 230.
4.
Nathu Prasad v. Singhai Kapurchand, A. I. R.
1976 M. P. 136 (F. B. ) relied in Mahabir Prasad v. Des Raj, A. I. R. 1981 H.
P. 58: 1981 Sim. L. C. 368.
5.
Shiv Lal v. Pt. Ishar Das, 1972 Cur. L. J. 46:
74 Punj. L. R. 181.
6.
Manmatha Nath Maity v. Smt. Provavati Roy, A. I.
R. 1983 Cal. 198.
7.
Gulam Mohammad v. AH Mohammad, A. I. R. 1972
J&K 5.
8.
Industrial Minerals & Mill Stores Traders v.
K. M. Chemicals, A. I. R. 1983 Cal. 215.
9.
His Highness Shrimant Sadashivrao Raghunathrao
Gandekar v. Srhimant Raj Kumar Anandrao Raghunathrao Gandekar, (1973) 75 Bom.
L. R. 175.
10.
Sadashiv Rao v. Anand Rao, A. I. R. 1973 Bom.
284: 75 Bom. L. R. 175.
11.
Sarwan Ram v. Tehal Singh, 1973 Cur. L. J. 125.
12. Ram
Kishore Saxena v. Smt. Raj Kumari. 1996 (2) C. C. C. 351 (All. ).
13.
Smt. Sujatha v. Indian Bank, 1996 (2) C. C. C.
273 (Kant. ).
14. J.
Venkataraman v. V. Mathi Booshanam, 1996 (3) C. C. C. 91 (Mad.).
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