FIRDOUS OMER (D) BY LRS. AND ORS.versusBANKIM CHANDRA DAW (D) BY LRS. AND ORS.

                FIRDOUS OMER (D) BY LRS. AND ORS.                                 A
                                      v.
          BANKIM CHANDRA DAW (D) BY LRS. AND ORS.

                              JULY 28, 2006

          [S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.]                              B


      Code of Civil Procedure, 1908-0rder 9 Rules 3, 4, 8 and 9-Limitation
Act, 1963-Section 5; Article 122 of the Schedule-Calcutta High Court
Original Side Rules-Chapter X,· Rule 35; Dismissal of suit by High Court for      C
non-prosecution under the Original Side Rules-Application for restoration
was dismissed on the ground that the order of dismissal of the suit for non-
prosecution had been drawn up, completed and filed under the Original Side
Rules-Correctness of-Failure of the surviving plaintiffs to bring on record
the legal representatives of the deceased plaintiff-Effect of-Held, on law,
the Court can restore the application by extension of time under the Limitation   D
Act-However, on facts, the application for restoration is dismissed since the
dismissal of the suit has become final as agab1st the deceased plaintiff and it
would result in inconsistent decree among the deceased plaintiff and the
surviving plaintiff if the suit is restored

      Plaintiff filed a suit before High Court for declaration that he was        E
valid and lawful tenant of schedule premises, for a perpetual injunction
restraining the defendants from interfering with his possession and for
consequential reliefs. Pending suit, the plaintiff died and his legal
representatives were brought on recm·d as additional plaintiffs. As no one
appeared on behalf of the plaintiffs despite several adjournments, the suit       p
was posted before the trial judge under Rule 35 of Chapter X of the
Original Side Rules of the Calcutta High Court and was dismissed for non-
prosecution. The order of the dismissal of the suit was drawn up, completed
and filed under the Rules. Thereafter, the plaintiffs filed an application
for restoration of the suit after condoning the delay, if any. The defendants-
respondents opposed the application on the ground that the trial judge            G
had become functus officio since the order of dismissal had attained finality
after the same being drawn up, completed and filed under the Rules; that
the application was belated; and that no ground was made out by the
appellants for restoration of the suit. The trial judge dismissed the
                                     175                                          H
    176                       SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A   application by relying on a decision of the Division Bench of the same High
    Court, where it was h~ld that the suit dismissed for default could not be
    restored to file once the order had been drawn up, completed and filed
    under the Rules.

          One of the additional plaintiffs died pending the disposal of the
B   application for restoration of the suit before the High Court. The surviving
    plaintiffs did not take steps to bring on record the legal representative of
    the deceased plaintiff. The appeal is filed by the surviving plaintiffs-
    appellants before this Court by impleading the deceased plaintiff as a
    respondent.
c         The respondents raised a preliminary objection contending that the
    dismissal of the suit has become final as against the deceased plaintiff since
    he died pending the application for restoration of the suit and no steps
    were taken by the appellants to bring the legal representatives of the
    deceased plaintiff on record; and that if the suit is restored, it would give
D   rise to inconsistent decrees in the suit between the deceased plaintiff and
    the surviving plaintiffs.

          The appellants, in reply to the preliminary objection, contended that
    they substantially represented the estate of the original plaintiff.

E         Dismissing the appeal, the Court

           HELD: I.I. The contention that the surviving legal representative
    substantially represented the estate of the original plaintiff cannot take
    th1~ appellants far. The decree of dismissal as against the deceased legal
    representative has become final. Therefore, the court cannot pass an
F   inconsistent decree in the same suit by granting a decree to the other legal
    representatives. Thus, the preliminary objection is upheld that the relief
    of re-opening the suit cannot be granted to the appellants since its dismissal
    has become final as against the deceased legal representative of the original
    plaintiff. The appellants have not acted bona fide. In impleading the
G   deceased plaintiff as a respondent in the Petition for Special Leave to
    Appeal as if he were alive. [180-E-F-G-H; 184-B]

        State of Punjab v. Nathu Ram, ]1962] 2 SCR 636 and Ram Sarup v.
    Mumbai and Urs., [1963] 3 SCR 858, referred to.

          1.2. After thee enactment of the Limitation Act, 1963, Section 5 of
H
     FIRDOUS OMER (D) BY LRS. v. BAN KIM CHANDRA DAW (D) BY LRS. [BALASUBRAMANYAN, J.l!   77
the Act is applicable to all applications other than an application under A
Order XXI CPC subject to any special law. That means that the time for
filing an application under Rule 4 or under Rule 9 of Order IX CPC, 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 B
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 CPC. In view of the power available under Section
5 of the Limitation Act to extend the period of limitation for making an
application for restoration of the suit, the rigid view adopted cannot be C
said to survive. The law of procedure is the handmaid of justice and Rule
35 of Chapter X of the Original Side Rules itself must be taken confer a
power on the trial judge to restore a suit which he had dismissed for
default if sufficient cause in that behalf is shown especially in the context
of Section 5 of the Limitation Act, 1963. (182-F-G-H; 183-A-E-F-G]
                                                                                               D
     Mis. Nana/a/ M. Varma and Co. (Gunnies) P. Ltd. v. Gordhandas
Jerambhai & Ors., AIR (1965) Calcutta 547; Udoychand v. Khetsidas, 28
Calcutta Weekly Notes 916; The Administrative General of West Bengal v.
Kumar Purnendu Nath Tagore, AIR (1970) Calcutta 231 and Sethia Mining
Manufacturing Corporation Ltd. v. Khas Dharamband Colliery Co. Ltd., AIR                       E
(1979) NOC 163 Cal, referred to.

     CIVIL APPEL LA TE JURISDICTION : Civil Appeal Nos. 3185 of 2006.

     From the Judgment and Order dated 2.7.2003 of the High Court of
Calcutta in GA No. 4866 of 1999 in CS No. 145 of 1983.
                                                                                               F
     Sarla Chandra for the Appellants.

      P.K. Das, P.N. Mullick, Raja Chatterjee, Sachin Das, Rajmi Bhagat,
G.S. Chatterjee, Ranjari Mukherjee, Partha Sil, Sanjiv Saxena and Ghanshyan
Joshi for the Respondents.                                                                     G
     The Judgment of the Court was delivered by

     P.K. BALASUBRAMANYAN, J. Leave granted.

       I. The original plaintiff, Sheikh Mohammad Omer, the predecessor-in-
interest of the appellants herein, filed the suit C.S. No. 145 of 1983 in the                  H
    178                        SUPREME COURT REPORTS (20061 SUPP. 4 S.C.R.

A High Court of Calcutta praying for a declaration that he was a valid and
    lawful tenant in respect of the plaint schedule premises and indicated in the
    plan annexed to the plaint, for a perpetual injunction restraining the defendants,
    the owner and those who were claiming under or through him from the
    interfering with his possession of the premises and for other consequential
    reliefs. The case of the plaintiff was that he had taken the suit premises on
B   lease for being enjoyed along with the adjacent premises belonging to him
    and that on the expiry of the term of the lease which was for 25 years, the
    plaintiff continued to be a tenant from month to month and the owner and
    those claiming under or through him, were not entitled to interfere with his
    right as a tenant. The defendants, the owner and those claiming under or
C   through him, resisted the suit by denying the claim of the plaintiff that he was
    a tenant from month to month and setting up a plea that on the expiry of the
    term of the lease relied on by the plaintiff, the plaintiff had abandoned the
    premises. the owner had taken possessiorr of it and there was no subsisting
    tenancy in his favour as claimed by the plaintiff.

D         2. Pending suit, the plaintiff died and his legal representatives were
    brought on record as additional plaintiffs l(a) to l(e). The owner, defendant
    No. I also died and his legal representatives were also brought on record.

          3. For about 15 long years, it seems that the suit was not even listed.
E On 21.7.1999, the suit appeared in the scrutiny list of the Master under the
  Rules of the Original Side of the Calcutta High Court. No one appeared on
  behalf of the additional plaintiffs. The Master adjourned the suit to another
  date in the same month. On 29.7.1999, the suit again appeared before the
  Master in the scrutiny list. Again, there was no representation on behalf of
  the plaintiffs. The Master therefore directed that the suit be posted before the
F trial judge in the special list in terms of Rule 35 of Chapter X of the Original
  Side Rules.

        4. Thus, the suit appeared in the special list of the Judge trying the
  cause on 30.8.1999. In spite of repeated calls, none appeared on behalf of the
  plaintiffs. The suit was hence <lismissed for non prosecution in terms of Rule
G 35 of Chapter X of the Original Side Rules. For convenience, the said Rule
  can be set down hereunder:

            "35. Disposal ofsuits for want ofprosec11tion. ~Suits and proceedings
            which have not appeared in the Prospective List or in the Warning
            List or Peremptory List within six months from the date oi institution,
H           may be placed before a Judge in Chambers, on notice to the parties
         FIRDOUS OMER (D) BY LRS. •·. BANKIM CHANDRA DAW (D) BY LRS. [BALASUBRAMANYAN. J.l]   79

            or their Advocates acting on the Original Side, to be dismissed for                    A
            default, unless good cause is shown to the contrary, or be otherwise
            dealt with as the Judge may think proper."

          Thus, the suit stood dismissed for default on 30.8.1999.

          5. It is said that on 7.9.1999, the order of dismissal was drawn up, B
    completed and filed. On 7.12.1999, the plaintiffs filed an application for
    restoration of the suit after condoning the delay, if any, in making the
    application. The said application did not indicate under what provision the
    same was being filed. It was pleaded that there was no latches on the part of
    the plaintiffs and the suit happened to be dismissed for default under
    unfortunate circumstances. The delay had occurred because the plaintiffs C
    were not made aware of the dismissal. The said application was opposed by
    the respondents to that application. It was contended that the application was
    not maintainable. The application was belated and that the trial Judge had
    become functus officio since the order of dismissal had attained finality by
    the same being drawn up, completed and filed on 7.9.1999 and that even D
    otherwise, there was no ground made out for restoration of the suit dismissed
    for default. The learned trial judge took the view that in view of the decision
    of the Division Bench of the High Court in Mis Nana/ai M. Varma and Co.
    (Gunnies) P. Ltd v. Gordhandas Jerambhai & Ors., AIR (1965) Calcutta
    547, the suit dismissed for default under Rule 35 of Chapter X of the Original
    Side Rules could not be restored to file once the order had been drawn up, E
    completed and filed. Though the learned judge was inclined to condone the
    latches on the part of the plaintiffs, he felt bound by the decision and the
    practice followed in that court and hence dismissed the application as not
    maintainable, without going to the merits of the application. The plaintiffs
    have approached this Hon'ble Court with this Petition for Special Leave to F
    Appeal challenging that order of the learned Single Judge of the High Court.

          6. Before proceeding to consider the contentions raised, one aspect
    requires to be noticed. It is seen that on 20. 7.2002, when the application for
    restoration was pending, petitioner No. l(e) therein, plaintiff l(e), S.M. Naqi,
    one of the legal representatives of the deceased original plaintiff, died. The G
.   surviving petitioners in the application, the other legal representatives of the
    original plaintiff, did not take steps to bring on record the legal representatives
    of the said petitioner S.M. Naqi. Even in this Court, the additional plaintiffs
    or the petitioners in the Petition for Special Leave to Appeal, purported to
    implead that Naqi as Respondent No.11 as if he were alive. It may be noted H
    180                         SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A that the order rejecting the application filed by the plaintiffs was made by the
    High Court on 2.7.2003 and the petition for special leave to appeal was filed
    on 17.7.2003, both after the death ofS.M. Naqi, one of the legal representatives
    of the original plaintiff and petitioner No. I(e) in the application for restoration
    of the suit. In this Court, an attempt was made by the petitioners to bring on
    record the legal representatives CJf the S.M. Naqi as if the death of Naqi
B   occurred during the pendency of the petition for special leave to appeal.

           7. In this context, learned counsel for the respondents raised a preliminary
    objection to the hearing :if the appeal on merits. !1e contended that the
    dismissal of the suit for default has become final as against S.M. Naqi, one
C   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
D   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
E   State of Punjab v. 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
F   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. This is the position adopted by this Court
G   in the decision relied on by the learned counsel for the respondents and
    followed subsequently by this Court in Ram Sarup v. Munshi & Ors., [1963]
    3 SCR 858. Thus, the preliminary objection has to be upheld and it has to
    be held that the relief or 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.
H
     FIRDOUS OMER (D) BY LRS. " BAN KIM CHANDRA DAW (D) BY LRS. [BALASUBRAMANY AN, J.] J   8J

       8. Learned counsel for the respondents also raised the contention that                   A
according to the decisions of the Calcutta High Court and the practice followed
in that Court, a dismissal of the suit under Rule 35 of Chapter X of the
Original Side Rules amounts a judgment and it was appealable under clause
 15 of the Letters Patent Hence an appeal therefrom would lie before the
Division Bench of the High Court. He also raised an alternative c0ntention
that if the application for restoration of the suit is treated as one under Order               B
IX Rule 9 of the Code of Civil Procedure, then again, an appeal would lie
to a Division Bench of the High Court under Order XLill Rule 1(c) of Code
of Civil Procedure, 1908. He therefore submitted that in any event, a direct
approach to this Court was not pennissible. Though, there may be some force
in these contentions as well, we do not want to go into that question for the                   C
purpose of this case, especially in the context of what we have said earlier.

       9. The question that arises for consideration is whether an application
 for restoration of the suit dismissed· under Rule 35 of Chapter X of the
 Original Side Rules of the Calcutta High Court is maintainable and if it is
 maintainable whether an application could be entertained only if it is filed D
 before the order dismissing the suit is drawn up, completed and filed. The
 question whether the power under Section 5 of the Limitation Act could not
 be exercised by the Court in an appropriate case, and what is the effect of
 exercise of that power, also arises. In Mis Nana/al M Varma and Co. (Gunnies)
P. LTD. v. Gordhandas Jerambhai & Ors. (supra), the Calcutta High Court E
held that when a suit is dismissed under Rule 35 of Chapter X of the Original
Side Rules, when neither party appeared before the judge, the suit was not
called on for hearing and hence Order IX Rule 3 of the Code did not apply.
The Division Bench also held that when the order dismissing the suit had
been drawn up, completed and filed, the jurisdiction of the Court came to an
end and thereafter the trial judge, had no power to reconsider the matter on F
the application made by the plaintiff to set aside the order dismissing the suit.
The Division Bench also held, relying on an earlier decision of that Court in
Udoychand v. Khetsidas, [28 Calcutta Weekly Notes 916], that an order
dismissing the suit for want of prosecution when it is placed before the trial
judge under Rule 35 of Chapter X of the Original Side Rules, was a 'judgment' G
within the meaning of clause 15 of the Letters Patent and was hence appealable.
This view of the Calcutta High Court had been followed in The Administrative
General of West Bengal v. 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 H
    182                       SUPREME COURT REPORTS (20061 SUPP. 4 S.C.R.

A 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
    XL VII Rule l of the Code could be exercised in an appropriate case and the
    suit could be restored by reviewing the dismissal. The same view was adopted
B   in a subsequent decision short-noted in Sethia Mining Manufacturing
    Corporation Ltd. v. Khas Dharamband Colliery Co. Ltd., AIR (1979) NOC
    163 (CAL.]

         l 0. 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
C 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
D 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
E 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
F High Court in Mis Nana/al M. Varma and Co. (Gunnies) P. LTD. v.
  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 XX! of
G 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
H an appropriate case can exercise its jurisdiction under Section 5 of the
            FIRDOUS OMER (D) BY LRS. 1•. BANKIM CHANDRA DAW (D) BY LRS. [BALASUBRAMANYAN. J.lj   83
 <-
       Limitation Act and extend the time for filing the application under Rule 9 or                  A
       Rule 4 of Order IX of the Code. Thus, it appears to us that in view of the
       applicability of Section 5 of the Limitation Act, to proceedings under Order
       IX of the Code, the position adopted in Mis Nana/al M Varma and Co.
 4-
       (Gunnies) P. LTD. v. Gordhandas Jerambhai & Ors. (supra) and followed
       subsequently by the Calcutta High Court cannot now be adopted.
                                                                                                      B
             11. After all, a dismissal of the suit for non-prosecution or for non-
       appearance of the plaintiff is not a decree as specified by the Section 2(2) of
       the Code itself. Hence it is not appealable as a decree. Of course, the Calcutta
       High Court seems to have taken the view that the order of dismissal would
       amount to a judgment and hence appealable under clause 15 of the Le.tters
       Patent. We do not think it necessary to decide for the purpose of this case,
                                                                                                      c
       whether dismissal of a suit for default on the part of the plaintiff would
       amount to a judgment within the meaning of clause 15 of the Letters Patent.
       We leave that question open for the present.

                12. We also feel that the view of the Calcutta High Court, no doubt,                  D
         backed by the procedure followed in that court and the practice of that court
        that once the order of dismissal is drawn up, completed and filed, the court
         loses its power to restore the suit in an appropriate case, seems to deprive the
        court of a power which every court has, of restoring a suit so as to enable
        the parties to contest the same on merits. It is even possible to argue, that the
        power to dismiss a suit for default, carries with it the power to restore that                E
      . suit. That apart, in view of the power available under Section 5 of the
        Limitation Act to extend the period of limitation for making an application
        for restoration of the suit, the rigid view adopted cannot be said to survive.
        May be, the view that the order was a judgment and it was appealable under
        clause 15 of the Letters Patent, also induced the theory of the trial judge                   F
        becomingfimctus officio on the order of dismissal being drawn up, completed
        and filed. After all, law of procedure is the handmaid of justice and Rule 35
        of Chapter X of the Original Side Rules itself must be taken to confer a
        power on the trial judge to restore a suit which he had dismissed for default
        if sufficient cause in that behalf is shown especially in the context of Section
       5 of the Limitation Act, 1963. The fact that the records have been consigned                   G
       to the record room cannot interfere with the power of the court to do justice
        in a cause. We are therefore inclined to hold ihat the position adopted by the


_,     Calcutta Higlt Court that on the expiry of the 30 days from the date of
        dismissal of a suit for default and on the order of dismissal being drawn up,
       completed and filed, the court becomes functus officio is not sustainable.                     H
    184                       SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A          13. Coming back to the case on hand, since we find that in case we
    were to allow this appeal and restore the suit, that will result in an order
    inconsistent with the order dismissing the suit as against S.M. Naqi, one of
    the legal representatives of the deceased original plaintiff, which has become
    f,nal, we are unable to grant the appellants any relief. Thus, we decline to
    interfere with the decision of the High Court. We may also notice that the
B   appellants have not acted bona fide in impleading the deceased co-plaintiff
    as a respondent in the Petition for Special Leave to Appeal as if he were alive
    and then seeking to bring on record his legal representatives in this Court.

          14. Thus, though on law, we are inclined to disagree with the High
C   Court that the suit could not be restored, we decline to interfere with its
    decision for the reason mentioned above. We dismiss the appeal. In the
    circumstances, we make no order as to costs.

    B.S.                                                       Appeal dismissed.