Madras High Court
The Manager Personal Banking Division ... vs P.S. Maragatham on 12 April, 2002
Equivalent citations: (2002)2MLJ280
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
JUDGMENT P.D. Dinakaran, J.
1. The petitioners in the revision and the appellants in the appeal are the defendants in O.S.No.4423 of 1987 on the file of the learned IV Assistant City Civil Judge, Madras, laid by the respondent for passing a decree and judgment based on the three fixed deposits that were alleged to have been matured on 13.2.1987, 15.2.1987 and 8.2.1987.
2. For the purpose of convenience, parties are referred to as per their rank in the suit.
3. The suit filed by the plaintiff, viz. O.S.No.4423 of 1987 was dismissed for default on 13.7.1990. Hence, the plaintiff filed I.A.No.18390 of 1990 for restoration of the suit under Order IX, Rule 9, CPC. The learned IV Assistant City Civil Judge, Madras, allowed I.A.No.18390 of 1990 and restored the suit on 27.2.1992. Thereafter, an exparte decree was passed in the above suit on 29.1.1993, pursuant to which the plaintiff initiated execution proceedings in E.P.No.3469 of 1993. After service of notice in the execution proceedings, the defendants, on 25.1.1995, filed two applications, viz. I.A.No.1019 and 1020 of 1995 to set aside the exparte decree dated 29.1.1993 made in O.S.No.4423 of 1987 and to set aside the order dated 27.2.1992 restoring the suit, respectively, contending that they had not been served with notice in I.A.No.18390 of 1990, which is mandatory under Order IX, Rule 9, CPC.
4. The above applications were resisted by the plaintiff on the ground that when the defendants initiated execution proceedings in E.P.No.371 of 1991 for executing the cost awarded when the suit was dismissed for default on 13.7.1990, the said execution proceedings was closed by the Execution Court based on the representation made by the plaintiff that the the defendants had the knowledge about I.A.No.18390 of 1990, filed by the plaintiff to restore the suit in I.A.No.18390 of 1992.
5. Accepting the case of the plaintiff, the Court below, by order dated 19.9.1996, dismissed both I.A.Nos.1019 and 1020 of 1995 to set aside the exparte decree dated 29.1.1993 made in O.S.No.4423 of 1987 and to set aside the order dated 27.2.1992 restoring the suit, respectively.
6. Aggrieved by the order dated 19.9.1996 made in I.A.No.1019 of 1995, the defendants filed Tr.CMA No.8379 of 2002 and CRP No.2483 of 1996 against the order dated 19.9.1996 made in I.A.No.1020 of 1995. Hence, the above revision and appeal.
7. The learned counsel for both sides reiterated the submissions that were advanced before the Courts below.
8. After careful consideration of the submissions of both sides, I am obliged to decide whether the knowledge of the pendency of I.A.No.18390 of 1990 filed by the plaintiff for restoration of the suit dismissed for default on 13.7.1990 is sufficient for the compliance of Order IX, Rule 9(2), CPC, with regard to notice of the application for restoration?
9. In this regard, I am obliged to refer Order IX, Rule 9, CPC, which reads as follows:
Decree against plaintiff by default bars fresh suit.
9.(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."
10. Order IX, Rule 9(2), CPC, referred to above, makes it clear that the notice of an application for restoration to the opposite party is mandatory. To verity the fact whether notice was given by the plaintiff to the defendants in I.A.No.18390 of 1990 for restoring the suit which was dismissed for default on 13.7.1990, this Court directed the Registry to call for the entire original records, and the records were produced before this Court accordingly.
11. A perusal of the records relating to the suit clearly shows that no notice of the application in I.A.No.18390 of 1990 was served on the defendants before restoring the suit on 27.2.1992. If that be so, no order shall be made in I.A.No.18390 of 1990 to restore the suit which was dismissed for default on 13.7.1990, as per Order IX, Rule 9(2), CPC. Therefore, I am of the considered opinion that the order of restoration dated 27.2.1992 is illegal and contrary to Order IX, Rule 9(2), CPC. Consequently, question of passing an exparte decree in the suit on 29.1.1993 itself does not arise. Hence, the exparte decree dated 29.1.1993 made in O.S.No.4223 of 1987 is also liable to be set aside. Both the revision and the appeal are, therefore, allowed.
12. Since the learned counsel for the revision petitioners, taking notice in I.A.No.18390 of 1990, has no objection for restoring the suit, the above suit stands restored on the file of the learned IV Assistant City Civil Judge, Madras, with a direction to try the suit and pass appropriate decree and judgment within three months from the date of receipt of a copy of this order.
In the result, the revision and the appeal are allowed. No costs. CMP No.3550 of 22002 and Tr.CMP No.379 of 2002 are closed.