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1 - 9 of 9 (0.22 seconds)The Code of Civil Procedure, 1908
Nanalal M. Varma And Co. (Gunnies) P. ... vs Gordhandas Jerambhai And Ors. on 22 May, 1964
10. Keeping out for the moment, the Rules of the
Original Side of the Calcutta High Court or the practice
followed in that Court, it appears to us that it was a case
where the suit was dismissed for default or for non-
prosecution. Such a dismissal, no doubt, was on the
basis that the suit was placed before a Judge trying the
cause under Rule 35 of Chapter X of the Original Side
Rules. But the dismissal still remains a dismissal for
default of the plaintiff. It could be a dismissal under Rule
3 of Order IX, if both sides were not present when the suit
was called on for hearing or it could be a dismissal under
Rule 8 of Order IX, if the defendant alone appeared and
the plaintiff did not appear. In either case, the plaintiff
could apply either under Rule 4 or under Rule 9 of Order
IX of the Code for restoration of the suit, on showing
sufficient cause for non-appearance. The application, no
doubt, had to be made within the period prescribed
therefor under the Limitation Act, which is 30 days from
the date of dismissal, under Article 122 of the Limitation
Act, 1963. Apparently, under the practice followed in the
Calcutta High Court on the Original Side, the order is
drawn up, completed and filed after the expiry of 30 days
from the date of the order. Section 5 of the Limitation Act
of 1908 proprio vigore did not apply to proceedings under
Order IX of the Code of Civil Procedure and the decision of
the Calcutta High Court in M/s Nanalal M. Varma and Co.
(Gunnies) P. LTD. Vs. Gordhandas Jerambhai & Ors.
(supra) dealt with a case which arose when the 1908 Act was
in force and Section 5 of the Limitation Act was not applicable.
But after the enactment of the Limitation Act, 1963, Section 5
has application to all applications other than an application
under Order XXI of the Code of Civil Procedure subject to any
special law. That means that time for filing an application
under Rule 4 or under Rule 9 of Order IX of the Code, or
under any other provision, unless excluded, could be extended
if sufficient cause is made out therefor. Therefore, the fact
that on the expiry of 30 days from the date of the order, the
order was drawn up, completed and filed, would not make
the court concerned functus officio since that court in an
appropriate case can exercise its jurisdiction under Section 5
of the Limitation Act and extend the time for filing the
application under Rule 9 or Rule 4 of Order IX of the Code.
The Limitation Act, 1963
Article 122 in Constitution of India [Constitution]
The Administrator General Of West ... vs Kumar Purnendu Nath Tagore on 7 October, 1969
This view of the
Calcutta High Court had been followed in The
Administrative General of West Bengal Vs. Kumar
Purnendu Nath Tagore [AIR 1970 CALCUTTA 231],
wherein the Court reiterated, that a suit dismissed on the
original side for non prosecution, could not be restored
under Order 9 of the Code of Civil Procedure even if an
application for restoration is made within time. The Court also
reiterated that when an Order dismissing the suit for non-
prosecution is drawn up, signed and perfected, the
concerned court had no power to recall that order. But
the court held that the power under Order XLVII Rule 1 of
the Code could be exercised in an appropriate case and
the suit could be restored by reviewing the dismissal.
Section 2 in The Limitation Act, 1963 [Entire Act]
Ram Sarup vs Munshi And Others(And Connected ... on 30 August, 1962
This is the position adopted by this Court in
the decision relied on by the learned counsel for the
respondents and followed subsequently by this Court in Ram
Sarup Vs. Munshi & Ors. [(1963) 3 SCR 858]. Thus, the
preliminary objection has to be upheld and it has to be held
that the relief of re-opening the suit cannot be granted to the
appellants since its dismissal has become final as against
S.M. Naqi, one of the legal representatives of the original
plaintiff.
The State Of Punjab vs Nathu Ram on 1 May, 1961
7. In this context, learned counsel for the
respondents raised a preliminary objection to the hearing
of the appeal on merits. He contended that the dismissal
of the suit for default has become final as against S.M.
Naqi, one of the legal representatives of the deceased
original plaintiff, since he died pending the application for
restoration of the suit and his legal representatives were
not brought on record and in view of this, this court
cannot proceed to allow the appeal and restore the suit,
even if it were possible, since it would give rise to
inconsistent decrees in the suit, one of dismissal of the
suit against Naqi, which has become final and the other, a
restoration of the suit in favour of the other legal
representatives of the original plaintiff and the re-opening
of the suit. Learned counsel contended that such re-
opening of the suit qua the surviving plaintiffs would only
be an exercise in futility since the Court cannot pass a
decree inconsistent with the decree of dismissal, that has
become final as against Naqi. Learned counsel relied on
the leading case in State of Punjab vs. Nathu Ram
[(1962) 2 S.C.R. 636] in support. Learned counsel for the
plaintiffs could not give any effective answer to this
submission on behalf of the defendants. The contention
that the other legal representatives substantially represented
the estate of the original plaintiff cannot take the appellants
far. The question is not whether the estate of the original
plaintiff is substantially represented or not, the question is,
what is the consequence of the death of one of the legal
representatives of the original plaintiff pending the application
for restoration of the suit that stood dismissed. The decree of
dismissal as against that legal representative has become
final. Therefore, the court cannot pass an inconsistent decree
in the same suit by granting a decree to the other legal
representatives.
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