Jharkhand High Court
Rajeshwar Singh vs Dashrath Rai on 28 June, 2006
Equivalent citations: AIR2007JHAR45, AIR 2007 JHARKHAND 45, 2007 (1) AIR JHAR R 285, (2006) 4 JCR 308 (JHA), (2006) 4 JLJR 402
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
ORDER Narendra Nath Tiwari, J.
1. In this civil revision, petitioner has challenged the legality of the impugned order passed by learned 1st Additional District Judge, Bokaro in Misc. Appeal No. 101 of 1993 whereby the Lower Appellate Court has held that the appeal filed before him is not maintainable and on that ground has dismissed the said appeal. The said appeal was preferred against the order dated 11-10-1993 passed by the Sub Judge, Chas In Misc. Case No. 13 of 1993 whereby the suit was sought to be restored under Order IX Rule 9 of the Code of Civil Procedure.
2. Petitioner's case is that he had filed Title Suit No. 134 of 1987 praying a decree for declaration that the sale deed No. 6773 dated 23-7-1986 was null and void and also for a decree for permanent, injunction restraining the defendant from interfering with his right, title and possession. The said suit was dismissed for default on 23-4-1993, The petitioner filed petition for restoration of the Title Suit No. 134 of 1987 being Misc. Case No. 13 of 1993 under the purported provision of Order IX Rule 9 of the Code of Civil Procedure. The said petition was also dismissed on 11-10-1993. The petitioner filed Misc. Appeal No. 101 of 1993 against that order of learned Sub Judge, Chas. The respondent objected and contended that the appeal against the said order is not maintainable and the appellant has got remedy under Order IX Rule 9 of the Code of Civil Procedure. Learned lower appellate Court held that the plaintiff-appellant-petitioner had remedy for getting restoration on the principle of Order IX Rule 9 of the Code of Civil Procedure in view of provision of Section 141 of the Code of Civil Procedure and that the appellant could have filed miscellaneous case for restoration of the said Misc. Case No. 13 of 1993 instead of filing an appeal against the said order of dismissal. Learned Lower Appellate Court held that the said appeal filed under Order XLIII Rule 1(c) of the Code of Civil Procedure is not maintainable and dismissed the appeal.
3. Learned Counsel for the petitioner submitted that Order XL III Rule 1(c) of the Code of Civil Procedure clearly provides appeal against 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. The said provision does not distinguish between an order passed on merit or on default. The appeal, therefore, is maintainable under Order XL III Rule 1(c) even if the same is dismissed for default. Learned Counsel submitted that since there is a clear provision of appeal against such order, learned Court below has not properly exercised its jurisdiction and has erroneously held that the appeal is not maintainable. The said order is, thus, contrary to law and is liable to be set aside. Learned Counsel in support of his said submission, referred to and relied upon a decision of the Patna High Court (as then was) in Doma Choudhary and Ors. v. Ram Naresh Lal and Ors. reported in AIR 1959 Patna 121 Full Bench.
4. Mr. N.K. Sahani, learned Counsel appearing on behalf of the opposite party, on the other hand submitted that the Order XLIII Rule 1 of the Code of Civil Procedure provides for appeals from certain orders under the provisions of Section 104 of the Code of Civil Procedure and save and except as otherwise expressly provided under the Code of Civil Procedure or by any law, appeal is not maintainable against any other order. It has been submitted that Rule 1(c) of Order XLIII of the Code of Civil Procedure provides for an appeal against an order under Rule 9 of Order IX rejecting an application for an order to set aside the dismissal of a suit. The rejection in the instant provision necessarily means rejection of the application on merit and not on default. The said provision does not specify that an appeal shall lie against any order passed under Rule 9 of Order IX and as such the said scope cannot be enlarged in view of the limitation imposed by Section 104 of the Code of Civil Procedure so as to read rejection even on default. Learned Counsel relied on a decision in Laisram Tomba Singh v. Moirangthem Thopa Singh and Anr. reported in AIR 1961 Manipur 35 and submitted that the petitioner has remedy for restoring the miscellaneous case dismissed for default under the provision of Order IX Rule 9 read with Sections 141 and 151 of the Code of Civil Procedure and learned Court below has rightly held that the appeal against such order is not maintainable and has rightly dismissed the appeal.
5. On perusal of record, it is evident that the Title Suit No. 134 of 1987 was dismissed for default and thereafter Misc. Case No. 13 of 1993 was filed for setting aside the said dismissal and for restoration of the suit, but the said miscellaneous case was also dismissed for default on 11-10-1993. The petitioner, in view of the provision contained in Section 141 read with Order IX Rule 9 of the Code of Civil Procedure, could have prayed for restoration of the said miscellaneous case. The Court could have restored the case even in exercise of its Jurisdiction under Section 151 of the Code of Civil Procedure, but in view of the provision, as contained in Rule 1(c) of Order XLIII even an appeal against such order is not barred. Rule 1(c) of Order XLIII runs as follows:
1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of Section 104, namely:
(c) an order under Rule 9 of Order IX rejecting an application (in a ease open to appeal) for an order to set aside the dismissal of a suit:
6. On plain reading of the said provision, it is clear that an appeal shall lie from an order under Rule 9 of Order IX of the Code of Civil Procedure rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. No distinction has been made between rejection of application on merit or rejection thereof for default and as such even if an application under Order IX Rule 9 of the Code of Civil Procedure is dismissed/rejected for default, there is no legal impediment in preferring an appeal against such order. Similar view has been taken by a Full Bench of Patna High Court in Doma Choudhary AIR 1959 Pat 121 (supra). Learned Court below has committed an error in holding that the appeal, against the said order of dismissal of miscellaneous case for default, is not maintainable. The decision in Laisram Tomba Singh AIR 1961 Manipur 35 (supra), in my view, does not spell the correct view as no distinction has been made in the said provision of Rule 1(c) of Order XLIII between dismissal of the application on merit and dismissal/rejection of the application for default.
7. Considering the above, this civil revision is allowed. The impugned order passed by learned Lower Appellate Court is set aside. The case is remitted to the 1st Additional District Judge, Bokaro for proceeding with the appeal in accordance with law.