Jammu & Kashmir High Court
J And K State Industrial Development ... vs Bank Of Maharashtra Branch And Anr. on 8 May, 2003
Equivalent citations: AIR2004J&K20, 2003(3)JKJ194, AIR 2004 JAMMU AND KASHMIR 20
JUDGMENT Y.P. Nargotra, J.
1. What is the period of limitation for filing an application for restoration of the application dismissed in default? is the question arising for consideration in this revision.
2. The petitioner filed two applications one under Order 9, Rule 13 CPC for setting aside exparte judgment and decree and the order under Section 5 of the Limitation Act for condonation of delay. Initially both the applications were being tried together but after sometime these were listed for hearing separately. The application under Section 5 of the Limitation Act was listed for hearing on 30.9.1999. The petitioner did not appear on the said date so it was dismissed in default, however the other application continued to be listed on various dates till 6.9.2000 when the counsel for the respondent took the stand that in view of dismissal of application under Section 5, the other application under Order 9, Rule 13 cannot proceed and thus petitioner was informed about the dismissal in default of his application under Section 5 of Limitation Act on 4.9.2000. The petitioner however filed application for restoration of the same on 9.12.2000. Ld. trial court dismissed the restoration application by its order dated 31.10.2001 impugned in the present revision mainly on the ground that there has been inordinate delay of three months in filing the application.
3. Ld. counsel for the petitioner submitted that petitioner has suffered the dismissal of his application because of the act of the court as the trial court ought to have posted and heard both the applications together on the same date. According to him no party to a case should suffer for an inappropriate act of a court and therefore by invoking inherent power vested in it under Section 151 C.P.C the restoration should have been allowed.
4. In catena of judgments of various High Courts and Supreme Court an axiomatic rule of law has been laid down that inherent power will not be invoked if the Civil Procedure Code does contain specific provision which would meet the necessities of the case in question. In AIR 1970 SC 997 it was held:
"Under the inherent power of courts recognised by Section 151, C.P.C., a court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provision should not be invoked. In other words the court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided else where in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power."
5. So before inherent power is invoked it is to be seen as to whether there is any provision in the Code which deals with the restoration of an application dismissed in default.
6. In the case of dismissal of a suit in default the restoration application lies under the provision contained in Order 9 Rule 9 and the period of limitation for filing such application is provided as 30 days by Article 163 of the Limitation Act which is as follows:
"163. By a plaintiff or an order to set aside a dismissal for default of appearance or for failure to pay costs of service of process or to furnish security for costs."
Thirty days The date of the dismissal.
7. As regards dismissal in default or an application and restoration thereof, there is no direct provision available in Civil Procedure Code, however Section 141 makes a provision for applying the procedure prescribed in respect of suits to all the proceedings in any court of Civil Jurisdiction as far as it can be made applicable. The Section reads as follows:
"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 DC, but does not include any proceeding under Article 226 of the Constitution."
8. Section 141 thus enacts an enabling provision by which the procedure prescribed by the Code for trial of the suits can be applied as far as practicable to the civil miscellaneous applications filed before the courts of civil jurisdiction, meaning thereby that such applications if not prosecuted can be dismissed in default and if applied for can be restored to hearing under the provisions contained in Order IX, CPC which means that for all practical purposes such applications filed before the courts of Civil Jurisdiction are to be deemed to be suits and therefore are subject to all the rules of procedure which apply to suits including the rules of limitation. Therefore the provisions of Order 9, Rule 9 shall apply to the applications for restoration of applications. Rule 9 of Order 9 reads:
"9. Decree against plaintiff by default bars fresh suit-.
(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 make under this rule unless notice of the application has been served on the opposite party."
9. By applying the legal fiction created by Section 141 the words 'Plaintiff' and 'suit' used in Rule 9 shall include and mean 'applicant' and 'application' also, and therefore such restoration applications shall be governed by Article 163 of Limitation Act. Residuary Article 181 which prescribes period of limitation of three years for filing applications for which no period of limitation is provided shall have no application, nor Section 151, CPC shall apply. And therefore the word 'plaintiff' used in Article 163 would mean and include 'applicant' also.
10. This court earlier also had the occasion of examining the question involved. Mr Justice R.P. Sethi (as his lordship then was) in the case B.S. Lamba v. M.A. Kanth and Ors., 1991 KLJ 488 observed as follows:
"Article 163 of First Schedule to the Limitation Act provides that an application for an order to set aside a dismissal for appearance or for failure to pay costs of services of process or to furnish security of cost may be filed by a plaintiff within 30 days from the date of dismissal. It is argued by the Ld. counsel for the petitioner that Article 163 cannot be stretched to make applicable to applications of the nature which has now been filed by the plaintiff in the instant case. It is argued that the provisions of the aforesaid Article are applicable to the initial application for restoration of the suit dismissed for default, and not to an application for the restoration of such application dismissed for default. The argument of the Ld. counsel if tested on the touch stone of reason is apparently mis-conceived and if accepted would result in the mis-carriage of justice. The Article finds its place in the 3rd Division of the schedule pertaining to an order to set aside dismissal for default of appearance. There is conflict of authorities of different High Courts regarding the maintainability of such applications but consensus is that such application is maintainable provided the same is filed within the time specified under Article 163 of the Limitation Act. It was held in Venkata Seetharamay v. Venkataramaya and Ors., AIR 1914 Madras 438 that where in a suit dismissed for default of plaintiff an application for restoration of the suit was dismissed also for default of appearance, the second application filed was governed by the provisions of Article 163 of the Limitation Act requiring the same to be filed within thirty days. In Nanak Chand v. Paras Ram, AIR 1958 HP. 9, reliance was placed upon AIR 1914 Madras 438 (supra), and AIR 1927 Calcutta 534 and it was held: "Where, as in this case the application to set aside the dismissal of the suit (which had been dismissed in default) was, itself dismissed in default, two remedies were open to the plaintiff. He could have either gone up in appeal against the order dismissing the application under Order 9, Rule 9 [under Order 9, 43, Rule 1(c),] or he could have filed another applications under Order 9, Rule 9. provided the same was within the period of limitation. In Sarat Krishna v. Bisweswar Mitra, AIR 1927 Cal. 534 (F) cited by Ld. counsel for the respondent Mukerjee and Braham, JJ, observed that:
"When an application under Order 9, Rule 9 for restoration of the suit is dismissed for default under Rule 4 of that Order, no application lies under Order 9, Rule 9, for setting aside that order of dismissal and for restoration and rehearing of the former application under Order 9, Rule 9, but the second application to restore the suit itself and not to restore the first application under Order 9, Rule 19, Civil P.C."
In Nalu Subba Row v. Gauti Venkataratnam, AIR 1914 Mad. 438 (1) (G), Tyabi, J, held that a second application restore a suit, which had been dismissed in default, was time-barred because it was made two months after the dismissal of the suit. Under Article 163 of the Limitation Act application to set aside a dismissal for default should made within 30 days of the dismissal.
I am unable to support the view of the court below that an application under Section 151 Civil P.C. would be competent in every case to restore an application under Order 9, Rule 9 (which had also been dismissed in default), and such as application would be governed by Article 181, Limitation Act, i.e. which prescribes 3 years limitation of the subordinate Judge's view is upheld, a very curious situation would be created. As was pointed out in Pitamber Lal v. Pode Singh, AIR 1924 All 503(11).
'In this event, a litigant may go on forever and apply to restore in an uninterrupted stream of unsuccessful application'.
"This would lead to an impossible situation and would defeat the provisions of Article 163. It is noteworthy that, in the present case, the application under Section 151, Civil P.C., was made 71 days after the applications under Order 9, Rule 9, was dismissed in default, i.e., long after the expiry of the period of limitation for filing a fresh application under Order 9, Rule 9. or for filing an application under Order 43, Rule 1(c)."
11. In the present case the application of the petitioner was time barred, so could be maintained after showing sufficient cause which had prevented him from moving within time prescribed but the petitioner has failed to render any reasonable explanation for delay as such the Ld. trial court was justified in its decision to decline the restoration. There is thus no illegality or impropriety in the order impugned, the revision as such is dismissed.