# JASWANT SINGH & ORS v. PARK.ASH KAUR & ANR

- **Citation:** [2017] 8 S.C.R. 731
- **Court:** Supreme Court of India
- **Decided:** 2017-07-21
- **Case number:** Civil Appeal No. 9409of2017
- **Bench:** A.K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jaswant-singh-ors-v-park-ash-kaur-anr-32234
- **Pages:** 33

## Headnote

A
B
Code of Civil Procedure, 1908 - 01: IX r. 9 and s.141 -Appeal
against order dismissing application for restoration of application
u/Or. IX, r. I 3 - Maintainability of - Respondent-Plaintiff filed suit
C
against the defendant, predecessor-in-interest of the appellants -
The suit proceeded ex parte against the defendant and was decreed
- Defendant filed application u/Or. IX. r.I 3 to set aside the ex parte
decree, howeve1; the same was dismissed in default - Thereafter,
defendant died - Legal heirs of the defendant i.e. appellants filed
application praying for restoration of application filed u/Or. IX
D
r. I 3 - Application dismissed by trial Court - Appellate Court i.e.
District Judge allowed the appeal u/Or. XLJIJ, r. I rlw. s. I 04 and
restored the application u/Or. IX, r. I 3 - High Court, however,
proceeded to examine the question of maintainability of appeal and
held that appeal filed by the appellant before the District Judge
E
was not maintainable - Held: The application.filed by the appellants
for restoration was registered in miscellaneous proceedings and as
per s.I4I, provisions of Or. IX were applicable for the same
'application - When Or. IX is made applicable to proceedings in the
nature of application seeking recall of the order dismissing
application u/Or. IX r. I 3, the order passed by the civil court rejecting
such application is clearly referable to Or. IX r.9 and an order
which is clearly referable to Or. IX, r.9 is also appealab/e by virtue
of Or. XLJIJ, r. I (c) - Hence, appeal against the order of the trial
Court was clearly maintainable u!Or. XLJJJ, 1: 1 (c) - High Court
erred in holding that such appeal was not maintainable.
F
G
Delay/Laches - Condonation of delay - Application filed by
appellants for restoration of application u/Or. IX r.13 dismissed by
the trial Court - Appellate Court i.e. District Court allowed the
appeal - However, High Court held that restoration application
was not maintainable and also observed that application was bmred
H
731
732
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A by time - Held: The appellants in their application itself had
already given sufficient explanation for filing the delayed
application - They were not aware of the application u!Or. IX, r.13
flied by their predecessor-in-interest - Application flied by the
predecessor-in-interest was called on 19.10.2001, which was
B dismissed in default and he died on 20.11.2001 - The predecessorin-interest had fallen seriously ill and was busy in treatment, hence
no one could appear and after he died the application was filed -
He died within a span of one month from dismissal of suit -
Appellate Court rightly reversed the finding of the trial Court
having found sufficient cause for restoration, it is just and
C equitable to conclude that there was sufficient cause for
condonation of delay - Limitation Act, 1963- s.5.
Allowing the appeal, the Court
HELD: 1.1 The application filed by appellant dated
21.08.2002 for restoration of the application under Order IX Rule
D 13 C.P.C., which was dismissed in default, is not expressly
covered by the provisions of Order IX C.P.C •• The application
dated 21.08.2002 was miscellaneous proceeding on which Civil
Miscellaneous Case was registered. What are the provisions and
procedure for miscellaneous proceeding have to be looked into
E for deciding the Issue. Section 141 of C.P.C. is relevant in this
context. Section 141 C.P.C. deals with miscellaneous proceeding.
An Explanation has been inserted under Section 141 by Act 104
of 1976. As per Section 141, the procedure provided in Civil
Procedure Code In regard to suit shall be followed, as far as, it
can be made applicable in all proceedings in any Court of civil
F
jurisdiction. By insertion of explanation, it has now been expressly
provided that expression "proceedings" includes proceedings
under Order IX C.P.C. [Paras 26, 271 (741-G-H; 742-A-B, DI
2 When Section 141 expressly refers to proceedings under
Order IX, as miscellaneous proceed

## Text

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[2017] 8 S.C.R. 731
JASWANT SINGH & ORS
v.
PARK.ASH KAUR & ANR
(Civil Appeal No. 9409of2017)
JULY 21, 2017
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.)
A
B
Code of Civil Procedure, 1908 - 01: IX r. 9 and s.141 -Appeal
against order dismissing application for restoration of application
u/Or. IX, r. I 3 - Maintainability of - Respondent-Plaintiff filed suit
C
against the defendant, predecessor-in-interest of the appellants -
The suit proceeded ex parte against the defendant and was decreed
- Defendant filed application u/Or. IX. r.I 3 to set aside the ex parte
decree, howeve1; the same was dismissed in default - Thereafter,
defendant died - Legal heirs of the defendant i.e. appellants filed
application praying for restoration of application filed u/Or. IX
D
r. I 3 - Application dismissed by trial Court - Appellate Court i.e.
District Judge allowed the appeal u/Or. XLJIJ, r. I rlw. s. I 04 and
restored the application u/Or. IX, r. I 3 - High Court, however,
proceeded to examine the question of maintainability of appeal and
held that appeal filed by the appellant before the District Judge
E
was not maintainable - Held: The application.filed by the appellants
for restoration was registered in miscellaneous proceedings and as
per s.I4I, provisions of Or. IX were applicable for the same
'application - When Or. IX is made applicable to proceedings in the
nature of application seeking recall of the order dismissing
application u/Or. IX r. I 3, the order passed by the civil court rejecting
such application is clearly referable to Or. IX r.9 and an order
which is clearly referable to Or. IX, r.9 is also appealab/e by virtue
of Or. XLJIJ, r. I (c) - Hence, appeal against the order of the trial
Court was clearly maintainable u!Or. XLJJJ, 1: 1 (c) - High Court
erred in holding that such appeal was not maintainable.
F
G
Delay/Laches - Condonation of delay - Application filed by
appellants for restoration of application u/Or. IX r.13 dismissed by
the trial Court - Appellate Court i.e. District Court allowed the
appeal - However, High Court held that restoration application
was not maintainable and also observed that application was bmred
H
731
732
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A by time - Held: The appellants in their application itself had
already given sufficient explanation for filing the delayed
application - They were not aware of the application u!Or. IX, r.13
flied by their predecessor-in-interest - Application flied by the
predecessor-in-interest was called on 19.10.2001, which was
B dismissed in default and he died on 20.11.2001 - The predecessorin-interest had fallen seriously ill and was busy in treatment, hence
no one could appear and after he died the application was filed -
He died within a span of one month from dismissal of suit -
Appellate Court rightly reversed the finding of the trial Court
having found sufficient cause for restoration, it is just and
C equitable to conclude that there was sufficient cause for
condonation of delay - Limitation Act, 1963- s.5.
Allowing the appeal, the Court
HELD: 1.1 The application filed by appellant dated
21.08.2002 for restoration of the application under Order IX Rule
D 13 C.P.C., which was dismissed in default, is not expressly
covered by the provisions of Order IX C.P.C •• The application
dated 21.08.2002 was miscellaneous proceeding on which Civil
Miscellaneous Case was registered. What are the provisions and
procedure for miscellaneous proceeding have to be looked into
E for deciding the Issue. Section 141 of C.P.C. is relevant in this
context. Section 141 C.P.C. deals with miscellaneous proceeding.
An Explanation has been inserted under Section 141 by Act 104
of 1976. As per Section 141, the procedure provided in Civil
Procedure Code In regard to suit shall be followed, as far as, it
can be made applicable in all proceedings in any Court of civil
F
jurisdiction. By insertion of explanation, it has now been expressly
provided that expression "proceedings" includes proceedings
under Order IX C.P.C. [Paras 26, 271 (741-G-H; 742-A-B, DI
2 When Section 141 expressly refers to proceedings under
Order IX, as miscellaneous proceedings and appeals from such
G orden are expressly provided by Order XLllI Rule l(c) & (d), it
Is clear that right of appeal has been given, from the orders arising
out of the miscellaneous proceeding. [Para 28) 1742-El
H
3. It Is relevant to note that expression "proceedings" as
referred to In explanation contains only an inclusive definition.
JASWANT SINGH & ORS. v. PARK.ASH KAUR & ANR
733
What is explained in !;!Xplanation is not exhaustive rather A
inclusive. Dismissal of an application under Order IX Rule 13
C.P.C. in default, is an order passed in miscellaneous proceedings,
which is expressly included in Section 141 C.P.C. explanation.
But whether the application dated 21.08.2002 to recall the order
dated 19.10.2001 is also a miscellaneous proceeding, covered B
by miscellaneous 'proceedings' under Section 141 C.P.C. The
answer has to be 'yes' thus, application dated 21.08.2002 is also
a miscellaneous proceeding in which proceeding, the procedure
'prescribed in the Code for suits is to be followed. [Para 29) [742F-G)
4. Order IX Rule 9 C.P.C. refers to application filed by C
plaintiff for restoration of a suit which had been dismissed In
default. Application dated 21.08.2002 prays for recalling of the
order dated 19.10.2001, dismissing the application under Order
IX Rule 13 C.P.C. in default. [Para 30] [743-A]
5. When the application under Order IX Rule 13 C.P.C., D
which was filed by deceased, Predecessor-in-interest was
dismissed for non-appearance, an application to recall the said
order and to restore the application can very well be treated as
an application under Order IX Rule 9 C.P.C. to restore a
miscellaneous proceeding akin to suit and against the order E
rejecting such application an appeal is permissible under Order
XLIII Rule l(c) C.P.C. [Para 41) (748-E-F)
. 6.1 Section 141 CPC expressly provides that Order IX is
applicable to all proceedings in civil jurisdiction. When Order IX
is made applicable to the proceedings in the nature of application
F
seeking recall of the order dismissing the application under Order
IX Rule 13 C.P.C. the order passed by the civil court rejecting
such application is clearly referable to Order IX Rule 9 C.P.C.
and an order which is clearly referable to Order IX Rule 9 C.P.C.
shall also be appealable by virtue of Order XLIII Rule l(c) C.P.C.
Rejection of application for restoration which is referable to Order G
IX, it cannot be refused to treat an order rejecting application
under Order IX Rule 9 C.P.C. for the purposes of Order XLIII
Rule l(c) C.P.C. [Para 58) [761-D-E)
6.2 The appeal filed by the appellants against order dated
23.12.2005 was clearly maintainable and the High Court erred in H
734
SUPREME COURT REPORTS
[2017) 8 S.C.R.
A holding that such appeal was not maintainable. [Para 581 [761-H;
·762-A)
Whether the application filed on 21.08.2002 to recall the
order dated 19.10.2001 by which order application under Order
IX Rule 13 C.P.C. was dismissed for default deserved to be
B rejected as barred by time.
7.1 The High Court held that application for restoration
could be under Order IX CPC and the limitation for restoration
is 30 days from the date of dismissal as per Article 122. Even if
it is assumed that limitation for filing application was only 30 days,
c the appellants in their application itself have already given
sufficient explanation for filing the application under Or.9, Rule
13 on 21.08.2002. They were not aware of the application dated
20.07.1999 filed by their Predecessor-in-interest who could not
recover from illness and died on 20.11.2001. (Para 611 [762-GH; 763-A)
D
7.2 Section 5 of the Limitation Act was attracted in
application filed for restoration. The Appellate Court having found
sufficient cause for restoration, it is just and equitable to conclude
that there was sufficient cause for condonation of delay, if any.
Thus, the rejection of the application of the appellants on the
E above ground also cannot be sustained. [Para 62) [763-F)
K.P. Jayakumar v. K. Ravindran and Ors. AIR 2004
Ker 209 - approved.
Nathu Prasad v. Singhai Kapurchand AIR 1976 MP
136; Ram Chandra Aggarwal and another v. The State
F
of Uttar Pradesh and another AIR 1966 SC 1888 :
[1966) SCR 398; Anandrao Kesheorao Pande v.
Krishnaji Baliram Dhapadkar AIR 1964 Born 232;
Hazi Rustam Ali v. Emamnuddin Khan and Ors. AIR
1981 Cal. 81; Gaja v. Mohd. Farukh and Ors. AIR
G
1961 ALL 561; Kallianikutty Amma v. The State of
Kera/a AIR 1974 Ker 171; Karni Dan Singh . Ram
Chandra and Ors. AIR 2003 Raj 98; Sri Sushi! Kumar
De and Am: v. Smt. Chhaya De and Anr. (2004) Cal
197 (HC) K.P. Jayakumar v. K. Ravindran and Ors.
AIR 2004 Ker 209 - referred to.
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR
735
Case Law Reference
A
AIR 1976 MP 136
referred to
Para 7
[19661 SCR 398
referred to
Para 38
AIR 1964 Born 232
referred to
Para 47
AIR 1981 Cal. 81
referred to
Para 49
AIR 2004 Ker 209
approved
Para 50
AIR 1961 ALL 561
referred to
Para 52
AIR 1974 Ker 171
referred to
Para 53
AIR 2003 Raj 98
referred to
Para 54
(2004) Cal 197 (HC)
referred to
Para 56
AIR 2004 Ker 209
referred to
Para 57
CIVIL APPELLATE JURISDICTION : Civil Appeal No.9409
of2017.
From the impugned final Judgment and Order dated
B
c
D
191h September, 2012 passed by the High Court of Punjab and Haryana
E
at Chandigarh in Civil Revision No. l 009 of2009.
Dhruv Mehta, Sr. Adv., P.N. Puri, Rakesh Chopra, Abhishek
·Puri,· Ms. Reeta Dewan Puri, Advs. for the Appellants.
Ms.Suresh Kumari, Ms. Divya Mishra, S.L. Aneja, Sanjay Kapur,
Raj iv Kapur, Ms.Shubhra Kapur, Advs. for the Respondents.
F
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. This is an appeal by legal heirs of one Ranjit Singh who was
defendant in Suit No. 123of1997 filed by Parkash Kaur, Respondent G
No. 1 praying for specific perfo~nce of an agreement dated 25.01.1995.
The suit proceeded ex parte against the defendant and by judgment and
order dated 06.12.1997 was decreed ex parte directing for specific
performance of agreement in favour of respondent-plaintiff. Respondentplaintiff was also directed to get the suit land redeemed from Defendant H
736
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A No. 2 with whom the suit property was mortgaged. The defendant No. I,
Ranjit Singh filed an application dated 20.07.1999 under Order IX Rule
13 C.P.C. praying for setting aside the ex parte decree dated 06.12.1997.
3. Case of the defendant in the application was that he was never
served in the above case and he had no knowledge regarding pendency
B at any stage. When the application filed by Ranjit Singh, defendant was
called on 19.10.2001, the learned counsel appearing for applicantdefendant made a statement that he had no instructions from the applicant.
Consequently, the application filed under Order IX Rule 13 C.P.C. was
dismissed in default. Ranjit Singh died on 20.1I.2001. Legal heirs of the
Ranjit Singh, who are appellants in the present appeal, filed an application
C dated 2I .08.2002 praying that application under Order IX Rule 13 C.P.C.
be restored and applicants be allowed to pursue this application and be
also allowed to file written statement and contest the suit. The said
application dated 21.08.2002 was objected by the plaintiff.
4. The Trial Court vide its order dated 23.12.2005, dismissed the
D application filed by the appellants dated 2I .08.2002. Aggrieved by the
order dated 23.12.2005 ofTrial Court, an appeal was filed by the appellants
under Order 43 Rule I C.P.C. read with Section 104 C.P.C.
5. Learned District Judge after hearing both the parties allowed
the appeal, setting aside the order of the Trial Court and further restoring
E the application dated 20.07.1999 filed by the Ranjit Singh, defendant.
Aggrieved by the judgment of Appellate Court, plaintiff tiled a Civil
Revision under Article 227 of the Constitution oflndia before the High
Court.
6. The High Court by impugned judgment dated 19.09.2012 allowed
. F the Revision setting aside the order of the District Judge and restoring
the order dated 23.12.2005 of the Trial Court. The plaintiff raised the
issue of maintainability of appeal of the appellants before the District
Judge filed against the order dated 23.12.2005. It was submitted by the
Revisionist that when the suit or application for restoration of application
0
under Order IX Rule 13 C.P.C. is dismissed for non-appearance of the
parties pursuing, then such order was not amenable to appeal and the
said order is not covered under Order XLIII Rule l(c) or l(d) of C.P.C.
H
7. Reliance was placed by learned counsel for the appellant on
the Full Bench Judgment of the Madhya Pradesh High Court in Nathu
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR
737
[ASHOK BHUSHAN, J. ]
Prasad versus Singhai Kapurchand, AIR 1976 MP 136. The High A
Court thus proceeded to examine the question of maintainability of the
appeal and held that appeal filed by the appellant before the District
Judge against the order of Trial Court dated 23.12.2005 was not
.maintainable. High Court has also observed that restoration application
filed by the appellant was also barred by time.
B
8. The appellants aggrieved by the judgment of the High Court
have come up in this appeal.
9. We have heard learned senior counsel Shri Dhruv Mehta, for
the appellants and learned counsel, Shri Raj iv Kapur for respondent as
well.
IO. Learned counsel for the appellants in support of the appeal
contends that High Court connnitted an error in holding the appeal filed
c
by the appellant as not maintainable. He submits that learned District
Judge has passed a just and equitable order setting aside the order,
dismissing the application under Order IX Rule 13 C.P.C. in default and D
reviving the said application for fresh consideration by the Trial Court.
Ex parte decree was obtained by the plaintiff without any contest hence
itwas necessary to consider the application filed by the appellants for
.restoring the application under Order IX Rule 13 filed by Ranjit Singh
deceased, defendant.
11. Learned counsel appearing for the respondent has supported
the judgment of the High Court and contends that the High Court has
rightly held that the appeal filed by the appellant before the District Judge
under Order XLIII Rule I was not maintainable.
E
12, We have considered the submissions of counsel for both the
F
parties and perused the· record. The District Judge vide its order dated
30.01.2009 had set aside the order of the Trial Court, dismissing the
application of appellants praying for recall of the order dismissing
application under Order IX Rule 13 C.P.C.in default. District Judge had
remitted the matter to the Trial Court for consideration of the application
under Order IX Rule 13 C.P.C. filed by Ranjit Singh, deceased on merits. G
Appellate Court i.e. District Judge had held that the Trial Court committed
an error in holding that there was no ground for restoration of the
application. The fact that Ranjit Singh died within a span of one month
"from dismissal of the application in default and the case set up by the
H
738
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A appellants that Ranjit Singh fell seriously ill and was busy in treatment,
hence no one could appear and after he died the application was filed,
was believed by the Appellate Court.
13. The High Court having allowed the Revision on the ground
that appeal filed by the appellants against the order of the Trial Court
B dated 23 .12.2005 was not maintainable, we need to consider, the question
as to whether appeal filed by the appellants under Order XLlll Rule 1
C.P.C. was maintainable or not?
14. From the facts, as noted above, it is clear that ex parte decree
was passed in favour of plaintiff on 06.12.1997. Ranjit Singh who was
c defendant No. l filed an application under Order IX Rule 13 ofC.P.C.
to set aside the ex parte decree on 20.07 .1999 which application
remained pending although the notices were issued to the plaintiff. The
application, however,
came on 19.10.2001 before the Court. On
19. l 0.2001 counsel appearing for Ranjit Singh made following statement:
D
"I have no instruction from appellants, case be decided as per
law."
15. The Trial Court consequently dismissed the application under
Order IX Rule 13 C.P.C. in default. Ranjit Singh died on 20.11.2001.
The legal heirs ofRanjit Singh i.e. appellants filed an application dated
E 21.08.2002 in which following prayer was made:-
F
"/t is, therefore, prayed that the application under Order IX
Rule 13 read with Section 151 C.P.C. which was dismissed in
default on 19.10.2001 be restored and the applicants be
allowed to pursue this application and they be also allowed
to file the written statement and contest the suit. "
16. The Trial Court proceeded to hear the application dated
21.08.2002 on merits and by order dated 23.12.2005, dismissed the
application after holding that there is no sufficient ground for restoration
of application under Order IX Rule 13 C.P.C.
G
17. The provisions of Civil Procedure Code, which are relevant
H
for the purposes of the present case need to be noted now.
18. Order IX of the CPC contains provisions relating to
"appearance of parties and consequence of non-appearance". Order
JASWANT SINGH & ORS. v. PARK.ASH KAUR & ANR
739
[ASHOK BHUSHAN, J.]
IX Rule 9 and Order IX Rule 13 which are relevant for the present case A
are quoted as below:-
"9. Decree against plaintiff by default bars fresh suit.- (I)
Where a suit is wholly or partly dismissed under ntle 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
B
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. C
(2) No Order shall be made under this rule unless notice of
the application has been served on the opposite party.
13. Setting aside decree ex parte against defe11da11ts.- Jn any
case in which a decree is passed ex parte against a defendant,
D
he may apply to the court by which the decree was passed for
an Order to set it aside; and if he satisfies the court that the
summons was not duly served, or that he was prevented by
any sufficient cause from appearing when the suit was·'called
on for hearing, the court shall make an Order setting aside
E
the decree as against him upon such terms as to costs, payment
into court or otherwise as it thinks fit, and shall appoint a
. day for proceeding with the suit:
Provided that where the decree is of such a nature that it
cannot be set aside as against such defendant only it may be
F
set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree
passed ex parte merely on the ground that there has been an
irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient
G
time to appear and answer the plaintijf 's claim.
Explanation.- Where there has been an appeal against
a decree passed ex parte under this rule, and the appeal has
been disposed of on any ground other than the ground that
H
740
A
B
c
SUPREME COURT REPORTS
[2017] 8 S.C.R.
the appellant has withdrawn the appeal, no application shall
lie under this rule of setting aside the ex parte decree. "
19. Section 104 enumerates the orders from which the appeal
lies. Order XLIII provides for "appeals from order". Order XLIII Rule
1 ( c) & ( d) which are relevant for the present case are quoted as below: -
"I.Appeal from orders.- An appeal shall lie from following
orders under the provisions of Section I04, namely:-
(c} an order under rule 9 of Order IX rejecting an application
(in a case open to appeal) for an order to set aside the
dismissal of a suit;
(d) an order under rule I 3 of Order IX rejecting an application
(in a case open to appeal) for an order to set aside a decree
passed ex parte;"
20. We may first examine, as to whether, the order dated
D 19.10.2001 by which application filed by Ranjit Singh, defendant was
dismissed in default, was appealable or not? Order XLIU Rule l ( d) .
permits appeal from "an order under Rule 13 of Order IX rejecting an
application". There can not be any dispute that ex parte decree passed
by the Civil Judge dated 06.12.1997 was appealable and Ranjit Singh,
the defendant chose to file an application under Order IX Rule 13 praying
E for setting aside the exparte decree dated 06.12.1997, with the further
prayer that suit be decided on merits after giving opportunity to the
appellant Ranjit Singh.
21. The statutory provision of Order XLIII Rule l ( c) and l ( d)
C.P.C. uses the words "rejecting an application''. When the appeal is
F provided on rejection of an application, we need not read any further
pre-condition in the word rejecting. When the right of appeal has been
given on "rejecting" an application the said right cannot be read to limit
the right of appeal only when application is rejected on merit. Taking any
such interpretation will be nothing but adding words to statute which is
0
clearly impermissible.
H
22. Full Bench of Madhya Pradesh High Court in Nathu
Prasad(supra) case had occasion to consider the words "rejecting an
application" as contained in Order XLIII Rule l(c) C.P.C. After
considering the earlier judgments of the different High Courts the Full
Bench opined as follows:
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR
741
[ASHOK BHUSHAN, J. ]
" ...... .Jn our opinion, there is nothing in the wording of Order A
43 Rule I (c), Civil P. C. to restrict it to rejection on merits.
The words "rejecting an application" are comprehensive
enough to include dismissal for default on rejection, in any
. other situation whatever. "
Thus, there cannot be any dispute that when the application was
B
rejected in default under Order IX Rule 13 C.P.C., the right of appeal
could have been exercised under Order XLIII Rule l(d) C.P.C.
23. In the present case againstthe order dated 19 .l 0 .200 l , rejecting
the application under Order IX Rule 13 C.P.C. in default, no appeal was
filed. Rather after the death ofRanjit singh on 20.11.2001 his legal heirs, c
who are appellants before us filed an application on 21. 08.2002, praying
for restoration of the application under Order IX Rule 13 C.P.C. Further,
they prayed that they may be allowed to contest the suit. The application
dated 21.08.2002 was dismissed on merit by Trial Court holding that
there was no sufficient cause for restoration. The appeal was filed
against the order dated 23.12.2005 before the Appellate Court.
D
24. From the perusal of judgment of Appellate Court dated
30.01.2009, it is clear that although, various arguments were raised by
counsel for the plaintiff including that application was barred by limitation
but no argument was raised regarding maintainability of the appeal. Nonraising of the objection regarding maintainability of the appeal is relevant
E
in another context. Supposing an objection was raised regarding
maintainability of the appeal before the District Judge, in event the
Appellate Court could have arrived that appeal was not maintainable,
the District Judge could have been exercised its revisional jurisdiction
under Section 115 C.P.C. Due to non-raising the objection regarding the
F
maintainability, the above opportunity was lost both to the appellant as
well as to the Revisional Court.
25. We are, however, of the view that High court having allowed
the plaintiff to raise the question of maintainability of the appeal which is
a legal issue and the High Court having held that appeal is not maintainable
G
the question need to be gone into on merits and answered.
·
..
26. The application filed by appellant dated 21.08.2002 for
restoration of the application under Order IX Rule l 3C.i>.C., which waS'
dismissed in default, is not expressl)t covered by the provisions of Order
H
742
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A IX C.P.C .. The application dated 21.08.2002 was miscellaneous
proceeding on which Civil Miscellaneous Case No. 30 of 2002 was
registered. What are the provisions and procedure for miscellaneous
proceeding have to be looked into for deciding the issue. Section 141 of
C.P.C. is relevant in this context. Section 141 C.P.C. deals with
B miscellaneous proceeding. An Explanation has been inserted under Section
141 by Act 104of1976. Section 141 C.P.C. after amendment w.e.f.
01.02.1977 is as follows:
c
"141. Miscellaneous proceedings.-The procedure provided in
this Code in regard to suits shall be followed, as far as it can
be made applicable, in all proceedings in any Court of civil
jurisdiction.
[Explanation.-In this section, the expression "proceedings"
includes proceedings under Order IX, but does not include
any proceeding under article 226 of the Constitution.}"
I)
27. As per Section 141, the procedure provided in Civil Procedure
Code in regard to suit shall be followed, as far as, it can be made
applicable in all proceedings in any Court of civil jurisdiction. By insertion
of explanation, it has now been expressly provided that expression
"proceedings" includes proceedings under Order IX C.P.C.
E
28. When Section 141 expressly refers to proceedings under Order
IX, as miscellaneous proceedings and appeals from such orders are
expressly provided by Order XLIII Rule I ( c) & ( d), it is clear that right
of appeal has been given, from the orders arising out of the miscellaneous
proceeding.
F
29. It is relevant to note that expression "proceedings" as referred
to in explanation contains only an inclusive definition. What is explained
in explanation is not exhaustive rather inclusive. Dismissal of an
application under Order IX Rule 13 C.?.C. in default, is an order passed
in miscellaneous proceedings, which is expressly included in Section 141
C.P.C. explanation. But whether the application dated 21.08.2002 to
G recall the order dated 19.10.2001 is also a miscellaneous proceeding,
covered by miscellaneous 'proceedings' under Section 141 C.P.C. The
answer has to be 'yes' thus, application dated 21.08.2002 is also a
miscellaneous proceeding in which proceeding, the procedure prescribed
in the Code for suits is to be followed.
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR
743
[ASHOK BHUSHAN, J. ]
30. Order IX Rule 9 C.P.C. refers to application filed by plaintiff A
for restoration of a suit which had been dismissed in default. Application
.dated 21.08.2002 prays for recalling of the order dated 19.10.2001,
dismissing the application under Order IX Rule 13 C.P.C. in default.
31. Before we proceed further, it is necessary to consider the Full
Bench judgment of High Court of M.P. in Nathtt Prasad case(sttpra).
B
Before the Full Bench following three questions were referred to be
answered:
"(1) Whether an appeal lies under Order 43, Rule 1 (c),
rejecting/dismissing for default an application under Order
17, Rule 2, read with Order 9, B. 9, Civil P. C. ?
C
(2) Whether the Division Bench which decided Komalchand
v. Pooranchand could take a contrary view to the one taken
in Pooranchand v. Komalchand, which had been decided by
a Division Bench ?
(3) Whether the earlier decision in Pooranchand v.
D
Komalchand, operated as res judicata in the later case
. (Komalchand v. Pooranchand) ?"
32. The Full Bench further, split the first question in following
three parts:-
E
"(i) When an application under Order 9, Rule 9, Civil P.C., is
dismissed for default, whether an application lies for its
restoration under Order 9, Rule 9, Civil P.C.?
(ii) Whether an order dismissing an application under Order
9, Rule 9, Civil P.C. is appealable under Order 43, Rule 1 (c),
Civil P.C.?
(iii) If both the questions are answered in the affirmative,
whether both the remedies are concurrent or either of them
excludes the other?"
F
33. We have already noticed that while considering the words
G
"rejecting an application" Full Bench held that the words "rejecting an
.application" are comprehensive enough to include the dismissal for default
or rejection on any other ground. The Full Bench has held that appeal
will lie under Order XLIII Rule l(c) C.P.C., even when, application
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[2017) 8 S.C.R.
A under Order IX Rule 9 C.P.C. is dismissed in default. It is useful to
B
c
D
E
extract the following observations of Full Bench:-
" We have not come across any argument to demonstrate that
the provisions of Order 43, Rule I (c) led to any absurdity or
hardship, if the plain meaning of the clause is accepted.
Consequently, it is not permissible to add the words "on
merits," or any other words, in the said Clause (c). It is the
first principle of interpretation of statutes that effect must be
given to the intention of the legislature. And, it is equally
fundamental that the language of the law itself is the
depository of the intention of the legislature. Therefore, where
the language is clear, and the meaning plain, effect must be
given to it. The Court cannot read a law as if its language is
different from what it actually is. Otherwise, it will amount to
amending the law, which is not permissible for the Court. See,
for instance, Thakur Amarsinghji v State of Rajasthan, (1955)
2 SCR 303 and Firm Hansraj Nathurum v. Firm Lalji Raja
and Sons, (1963) 2 SCR 619. The primary duty of the Court
is to give effect to the intention of the legislature as expressed
in the words used by it and no outside consideration can be
called in aid to find another intention-See New Piece Goods
Bazar Co. Ltd., Bombay v. Commissioner of Income-tax,
Bombay, (1950) 1 SCR 553.
The result of this discussion is that in our view, an appeal lies
from an order dismissing for default or on merits. an application under Order 9, Rule 9, Civil P. C. "
F
34. The Full Bench, however, took the view that when an
application under Order IX Rule 9 C.P.C. for restoration of the suit is
rejected and an application is made for restoration of the application
although, such application also falls ·v;•hin the purview of Order IX Rule
9 C.P.C., read with Section 141, Civil P.C., yet, the order rejecting the
application does not fall within the Order 43 Rule l (c) C.P.C. in as much
G as the subsequent application is not "for an order to set aside the dismissal
of a suit"; it is for an order to set aside dismissal of the application. The
Full Bench summed up its conclusion in following words:-
H
"Let it be mentioned for removal of doubt, and for making
the picture complete, that when an application ('A ') under
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR
745
[ASHOK BHUSHAN, J. ]
Order 9, Rule 9, Civil P. C.,for restoration of the suit is rejected A
and an application ('B ') is made for restoration of the
application ('A') although such application ('B ') also falls
within the purview of Order 9, Rule 9, read with Section 141,
Civil P. C., yet, the order rejecting the application ('B ') does
not fall within Order 43, Rule 1 (c) inasmuch as the application
B
('B ') is not "for an order to set aside the dismissal of a suit";
. it is for an order to set aside dismissal of the application ('A').
We may now sum up the conclusions we have reached on the
above discussion :-
(i) When application ('A') under Order 9, Rule 9, Civil P.
C
C, is itself dismissed for default of the plaintiff/petitioners
appearance, an application ('B ') lies under Order 9, Rule
9, read with Section 141 of the same Code, for restoration
of the application ('A'). Jn order to succeed in this proceeding ('B '), the petitioner has to satisfy the Court that
he was prevented by sufficient cause from appearing on D
the date when the application ('A') was called on for hearing.
(ii) The order of dismissal for default of the application
('A') is appealable under Clause (c) of Rule 1. Order 43.
Civil P. C.
E
(iii) Both the above remedies, i. e., application under
Order 9, Rule 9, and appeal under Order 43, Rule I (c)
are concurrent. They can be resorted to simultaneously.
Neither excludes the other. The scope of each of the above
proceedings is, however, different.
(iv) When an appeal (second remedy) is decided, one way
or the other, the order of dismissal for default appealed
from gets merged in the order of the appellate Court, so
that thereafter the application ('B ') under Order 9, Rule
F
9, becomes in-fructuous. When it comes to the notice of G
the appellate Court that an application has also been made
under Order 9, Rule 9, for restoration, the appellate Court
may do well to postpone the hearing of the appeal until
the decision of the application under Order 9, Rule 9, Civil
P. c.
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(v) No appeal lies from an order rejecting an application
('B ')for restoration of application ('A'). which latter
application was for restoration of the suit.
(vi) As observed by their Lordships of the Supreme Court
in Mahadeolal Kanodia v. Administrator General of West
Bengal, AIR 1960 SC 936 and Jaisri v. Rajdewan, AIR
1962 SC 83, if a Division Bench does not agree with
another Division Bench in a decision rendered earlier, the
Second Division Bench must either follow the earlier
decision or place the matter before the Chief Justice for
being referred to a larger Bench. But, the second Division
Bench cannot take upon itself the task of holding that the
decision of the first Division Bench was wrong.
We answer this reference accordingly. The matter shall now
be placed before the single Bench."
D
35. The reasoning given by the Full Bench as extracted above, is
that, since the subsequent application is not for an order to set aside the
dismissal of the suit and it is only for an order to set aside the dismissal
of the application in default, it does not fall under Order XLlll Rule 1 ( c)
C.P.C.
E
36. The High Court lost sight to the essence of the prayer in the
second application. The prayer in the second application is to restore the
earlier application which was dismissed in default and decide the said
application. Thus, the ultimate prayer is to set aside the dismissal of the
application under Order IX Rule 13 C.P.C. which is a miscellaneous
proceeding initiated by predecessor-in-interest of the appellants. The
F restoration application filed by appellants is referable to Order IX Rule 9
C.P.C. since it prays for restoration of miscellaneous proceedings
dismissed in default.
37. No one doubts that when first application, which sought to set
aside the dismissal of the suit, was dismissed in default and appeal would
G lie under Order XLIII Rule 1 (c) C.P.C. which has also been held by the
Full Bench of High Court of M.P.(supra). Because, the applicant or his
legal heirs immediately, did not file an appeal and sought to get the order
recalled to revive the application, the right of appeal cannot be held to be
lost.
H
.,
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR
747
[ASHOK BHUSHAN, J. ]
38. It is true that Section 141 only provides for procedure to be
A
followed in a miscellaneous proceeding and that question of right of
appeal has to be looked into from other provisions of the statute and not
from Section 141. In the miscellaneous proceedings right of appeal has
to read as has already laid down by this Court in Ram Chandra
Aggarwal and another vs. The State of Uttar Pradesh and another,
AIR 1966 SC 1888.
B
39. The above judgment was rendered in context of Section 141
and Section 24 of the C.P.C. The question arose in the aforesaid case,
as to whether, the proceeding of reference made by a Magistrate under
Section 146 of Cr. P.C. is a "proceeding" within the meaning of Section
141/24 of the C.P.C.
In the above case, the District Judge has
C
exercised the power under Section 24 C.P.C. for transferring the reference
proceeding from one Civil Court to another Civil Court. The order of
transfer was complied with and no question of jurisdiction was raised
before the transferee Court but after return of the finding by the Civil
Court and after passing of the subsequent order the Revision Application D
was filed before the Court of Sessions where argument was raised that
the transfer was without jurisdiction, and transferee Civil Court's order
is nullity. It was further held that the District Judge could not have
transferred the proceeding since it was not a civil proceeding. The
argument was raised in the above case that if it is held that the
proceeding before the Civil Court is a civil proceeding than all the Rules
of procedure contained in the CPC including those relating to appeals or
revision would apply to the proceeding. The said argument was repelled
.by this Court and following was laid down in Para 5:-
E
"5. Mr. Iyengar tried to put the matter in a somewhat
different way. In the first place, according to him, if we hold F
that the proceeding before the civil court is a civil
proceeding then. all the rules of procedure contained in the
Civil Procedure Code. including those relating to appeals or
revision would apply to the proceeding. This, he points out,
would be contrary to the provisions of S. 146(1-D) of Code o
of Criminal Procedure which bar an appeal, review or revision
from any finding of the civil Court. From this he wants us to
infer that the proceeding does not take the character of a
civil proceeding even though it takes place before a civil Court.
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We are not impressed by this argument. J(sub-s. 0-D) had
not been enacted (and this is really a new provision) an appeal
or revision application would have been maintainable. Now
that it is there, the only effect of it is that neither an appeal
nor a revision is any longer maintainable. This consequence
ensues because of the express provision and not because the
proceeding before the civil Court is not a civil proceeding. "
(underlined by us)
40. Noticing the provisions of Section 146 (1-D) ofCr.P.C. which
contained a bar on appeal, review or revision from any finding of the
c Civil Court, this Court held that the normal appeal or revision as provided
in Civil Court shall not be applicable. This Court, thus, clearly held that in
a miscellaneous proceeding before a Civil Court the Rules of procedure
contained in Civil Court including those relating to the appeals or revision
would apply to the miscellaneous proceeding which were initiated
before the Civil Court. In view of the above, the miscellaneous
D proceedings initiated by appellant by application dated 21.08.2002 was
to be conducted by virtue of Section 141 C.P.C. and the right of appeal
as is also available in accordance with the provisions of Order XLIII
Rule 1.
41. When the application under Order IX Rule 13 C.P.C., which
E
W,as filed by deceased, Ranjit Singh was dismissed for non-appearance,
an application to recall the said order and to restore the application can
very well be treated as an application under Order IX Rule 9 C.P.C. to
restore a miscellaneous proceeding akin to suit and against the order
rejecting such application an appeal is permissible under Order XLlll
F Rule l(c) C.P.C.
42. There is thus no reason for holding that appeal filed by the
appellants before the District Judge against the order dated 23.12.2005,
was not maintainable.
43. Further, when the appellants could have filed appeal against
G order dated 19.10.2001 under Order XLIII Rule l(c) C.P.C., said right
shall not be lost on the ground that they tried to get that order recalled by
filing an application.
H
44. When this Court in Ram Chandra Aggarwal (Supra) has
already laid down that miscellaneous proceedings are governed by the
iASWANT SINGH & ORS. v. PARKASH KAUR & ANR
749
[ASHOK BHUSHAN, J. ]
procedure prescribed in C.P.C. as far as possible including the right of A
appeal and n;vision.