Kerala High Court
Wilson.P.Chacko vs Muhammed Raphy on 27 June, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY,THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
C.R.P.No. 540 of 2013 ()
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C.M.A.NO. 6/2011 of ADDL.DISTRICT COURT, PATHANAMTHITTA, DATED 27-06-2013
REVISION PETITIONER(S)/APPELLANT/PETITIONER:
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WILSON.P.CHACKO, AGED 62 YEARS,
S/O.CHACKO, BUDHANIKUNNIL HOUSE,
MYLAPRA, KOZHENCHERRY,PATHANAMTHITTA DISTRICT. (DIED)
*SUPPLEMENTAL REVISION PETITIONERS IMPLEADED
SUPPL P2. SHEELA WILSON, AGED 38 YEARS
W/O.LATE WILSON. P.CHACKO
BUDHANIKUNNIL HOUSE, MYLAPRA,
KOZHENCHERRY, PATHANAMTHITTA DISTRICT
SUPPL P3. VISHNU WILSON, AGED 42 YEARS
W/O.LATE WILSON.P.CHACKO
BUDHANIKUNNIL HOUSE, MYLAPRA
KOZHENCHERRY,
PATHANAMTHITTA DISTRICT
*SUPPLEMENTAL REVISION PETITIONERS 2 AND 3 ARE IMPLEADED AS THE LEGAL
HEIRS OF THE DECEASED SOLE REVISION PETITIONER AS PER ORDER DATED 3.6.16
IN I.A.845/16.
BY ADV. SRI.V.PHILIP MATHEWS
RESPONDENT(S)/RESPONDENT/RESPONDENT:
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MUHAMMED RAPHY, AGED 62 YEARS,
S/O.MUHAMMED KHAN, NOORJAHAN MANZIL,
VETTIPURAM MURI, KOZHENCHERY,
PATHANAMTHITTA DISTRICT - 689 654
BY ADVS. SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-11-
2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bb
P.SOMARAJAN, J.
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C.R.P.No.540 of 2013
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Dated this the 18th day of November, 2016
O R D E R
The plaintiff in the lower court in O.S.No.218/2007 of the Sub Court, Pathanamthitta, who is the appellant in C.M.A.No.06/2011 of the Additional District Court, Pathanamthitta, is the revision petitioner herein.
2. The above said revision is filed, aggrieved by the judgment dated 27.06.2013, passed by the Additional District Court, Pathanamthitta, in the above said C.M.A.
3. The nutshell of the case is as follows:
During the pendency of the suit, the defendant entered appearance and disputed the entire execution as well as the signature found affixed in the promissory note which was produced along with the suit exhibited as A1. In the meanwhile, the defendant filed an application in I.A.No.409/2008 for the purpose of getting appearance of plaintiff in person on the ground that the signature found C.R.P.No.540 of 2013 : 2 : affixed in the plaint as well as in the vakalath is not that of the plaintiff herein. That application was allowed by the lower court, issuing direction to the plaintiff to appear in person. But, the plaintiff not turned up. Thereon, the defendant filed another application in I.A.No.911/2009 under Order X Rule 4 C.P.C. for passing a judgment against the plaintiff. After hearing the defendant and the counsel for the plaintiff, the lower court has passed an order in that I.A. by dismissing the suit for default. Subsequently, the plaintiff applied under Order IX Rule 9 C.P.C. for restoring the suit in to the file. That application ended in dismissal by order dated 03.02.2011, against which, a C.M.A. was preferred before the Additional District Court, Pathanamthitta and the same was also dismissed by the First Appellate Court on the reason that an application under Order IX Rule 9 C.P.C. is not maintainable as the order under challenge purport to have been passed under Rule 4 of Order X C.P.C. Aggrieved by the said order, the plaintiff C.R.P.No.540 of 2013 : 3 : went in revision before this Court.
4. Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondent.
5. Going by the order of the Trial Court as well as the First Appellate Court, it is clear that the Appellate Court dismissed the appeal mainly on the reason that an application under Order IX Rule 9 C.P.C. is not maintainable as the order under challenge is passed under Rule 4 of Order X C.P.C.
6. The learned counsel appearing for the defendant placed a decision of AIR 1959 Madhya Pradesh 5 drawn in Sewaram Udaji Vs. Munna Moti and another, in support of his argument that when there is a culmination by a judgment under Order X Rule 4(2) C.P.C., there is no application of Order IX Rule 9 C.P.C. Rule 4 of Order X C.P.C. is extracted below for reference:
4. Consequence of refusal or inability of pleader to answer:- (1) Where the pleader of any party who appears by a pleader or any such person C.R.P.No.540 of 2013 : 4 : accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court [may postpone the hearing of the suit to a day not later than seven days from the date of first hearing] and direct that such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.
(emphasis supplied)
7. Going by Sub Rule 2 of Rule 4, it is well clear that it is within the power of the court on satisfying the reason or requirement as embodied under Rule 4 to pronounce a judgment against the plaintiff. In other words, the mandate is to pronounce a judgment and not pronounce an order. When an order is pronounced purport to have been under the power of Rule 4 of Order X C.P.C., it would acquire the character of a simple order for dismissal and it would bring the matter outside the purview of Rule 4 of Order X C.P.C. The simple reason behind it is that, only a judgment alone can be pronounced by virtue of power under Rule 4(2) of C.R.P.No.540 of 2013 : 5 : Order X C.P.C. In the present case, what is seen passed by the lower court is an "order of dismissal for default". Since it is an order for dismissal for default and not a judgment, it cannot be either treated as a judgment delivered or pronounced under Rule 4(2) of Order X C.P.C. Necessarily, the order will acquire the character of simple order of dismissal for default making the provision under Order IX squarely applicable in the matter. The decision rendered by the Madhya Pradesh High Court is not applicable in the present case in facts simply because of the reason that no judgment was pronounced by virtue of Rule 4(2) of Order X C.P.C.
8. Yet another interesting argument was also placed by the learned counsel based on the proviso attached to Section 115 C.P.C. The proviso is extracted below for reference:
115. Revision - [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court C.R.P.No.540 of 2013 : 6 : appears -
(a) to have exercised a jurisdiction not in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] [(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.] [(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.] [Explanation - In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.]
9. The proviso would come into play only with respect to orders deciding an issue in the course of suit or C.R.P.No.540 of 2013 : 7 : other proceedings. It has hence no application in the present matter. The revision is perfectly maintainable. From the discussion, it is well clear that there is a failure to exercise the jurisdiction in its proper perspective by both the court, namely, the Trial Court as well as the First Appellate Court resulting in miscarriage of justice. Hence, the order passed by the Additional District Judge, Pathanamthitta as well as the trial court are liable to be set aside and I am doing so. The application in I.A.No.1859/2009 filed under Order IX Rule 9 C.P.C. shall be dealt under the provisions of the law by the lower court after affording an opportunity to both the parties. Parties shall appear before the lower court on 30.11.2016. No cost.
Sd/-
P.SOMARAJAN, JUDGE Bb/19/11/2016 [True copy] P.A to Judge