Supreme Court of India
JASWANT SINGH & ORSversusPARK.ASH KAUR & ANR
- Citation
- 2017 INSC 656
- Decided
- 21 July 2017
- Disposal
- Appeal(s) allowed
- Bench
- A K SIKRI
Holding
The appeal is maintainable; the order dismissing the restoration application is appealable under Order XLIII Rule 1(c) and the delay is condoned.
Summary
The plaintiff obtained an ex‑parte decree for specific performance of a 1995 agreement. The defendant filed an application under Order IX Rule 13 CPC to set aside the decree, but it was dismissed in default and the defendant died shortly thereafter. The legal heirs filed a restoration application under Order IX Rule 9 CPC on 21‑08‑2002, which the trial court dismissed as untimely. The District Judge allowed an appeal under Order XLIII Rule 1(c) and restored the application. The High Court reversed, holding the appeal non‑maintainable and the restoration barred by limitation. The Supreme Court held that (i) the restoration application is a miscellaneous proceeding covered by Section 141 CPC, making Order IX applicable; (ii) an order dismissing such an application is appealable under Order XLIII Rule 1(c); and (iii) the delay was condoned under the Limitation Act. Consequently, the appeal was maintainable and the High Court’s order set aside.
Issues considered
- Whether an appeal against the order dismissing an application for restoration under Order IX Rule 13 CPC is maintainable under Order XLIII Rule 1(c).
- Whether the restoration application filed on 21‑08‑2002 is barred by the limitation period.
- Whether Section 141 CPC makes Order IX applicable to the restoration application, thereby conferring a right of appeal.
- Whether the right of appeal is a substantive right that can be inferred from the provisions of the CPC.
Legislation cited
- Code of Civil Procedure, 1908s. Order IX Rule 13, s. Order IX Rule 9, s. Order XLIII Rule 1(c), s. Section 104, s. Section 141
- Limitation Act, 1963s. Article 122, s. Article 137, s. Section 5
Subjects
Civil ProcedureOrder IXOrder XLIIIAppeal maintainabilityRestoration of applicationLimitation ActSection 141 CPCEx‑parte decreeMiscellaneous proceedings
Judgment
[2017] 8 S.C.R. 731
JASWANT SINGH & ORS A
v.
PARK.ASH KAUR & ANR
(Civil Appeal No. 9409of2017)
JULY 21, 2017 B
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.)
Code of Civil Procedure, 1908 - 01: IX r. 9 and s.141 -Appeal
against order dismissing application for restoration of application
u/Or. IX, r. I 3 - Maintainability of - Respondent-Plaintiff filed suit C
against the defendant, predecessor-in-interest of the appellants -
The suit proceeded ex parte against the defendant and was decreed
- Defendant filed application u/Or. IX. r.I 3 to set aside the ex parte
decree, howeve1; the same was dismissed in default - Thereafter,
defendant died - Legal heirs of the defendant i.e. appellants filed
application praying for restoration of application filed u/Or. IX D
r. I 3 - Application dismissed by trial Court - Appellate Court i.e.
District Judge allowed the appeal u/Or. XLJIJ, r. I rlw. s. I 04 and
restored the application u/Or. IX, r. I 3 - High Court, however,
proceeded to examine the question of maintainability of appeal and
held that appeal filed by the appellant before the District Judge E
was not maintainable - Held: The application.filed by the appellants
for restoration was registered in miscellaneous proceedings and as
per s.I4I, provisions of Or. IX were applicable for the same
'application - When Or. IX is made applicable to proceedings in the
nature of application seeking recall of the order dismissing
application u/Or. IX r. I 3, the order passed by the civil court rejecting F
such application is clearly referable to Or. IX r.9 and an order
which is clearly referable to Or. IX, r.9 is also appealab/e by virtue
of Or. XLJIJ, r. I (c) - Hence, appeal against the order of the trial
Court was clearly maintainable u!Or. XLJJJ, 1: 1(c) - High Court
erred in holding that such appeal was not maintainable.
G
Delay/Laches - Condonation of delay - Application filed by
appellants for restoration of application u/Or. IX r.13 dismissed by
the trial Court - Appellate Court i.e. District Court allowed the
appeal - However, High Court held that restoration application
was not maintainable and also observed that application was bmred
H
731
732 SUPREME COURT REPORTS [2017] 8 S.C.R.
A by time - Held: The appellants in their application itself had
already given sufficient explanation for filing the delayed
application - They were not aware of the application u!Or. IX, r.13
flied by their predecessor-in-interest - Application flied by the
predecessor-in-interest was called on 19.10.2001, which was
B dismissed in default and he died on 20.11.2001 - The predecessor-
in-interest had fallen seriously ill and was busy in treatment, hence
no one could appear and after he died the application was filed -
He died within a span of one month from dismissal of suit -
Appellate Court rightly reversed the finding of the trial Court
having found sufficient cause for restoration, it is just and
C equitable to conclude that there was sufficient cause for
condonation of delay - Limitation Act, 1963- s.5.
Allowing the appeal, the Court
HELD: 1.1 The application filed by appellant dated
21.08.2002 for restoration of the application under Order IX Rule
D 13 C.P.C., which was dismissed in default, is not expressly
covered by the provisions of Order IX C.P.C•• The application
dated 21.08.2002 was miscellaneous proceeding on which Civil
Miscellaneous Case was registered. What are the provisions and
procedure for miscellaneous proceeding have to be looked into
E for deciding the Issue. Section 141 of C.P.C. is relevant in this
context. Section 141 C.P.C. deals with miscellaneous proceeding.
An Explanation has been inserted under Section 141 by Act 104
of 1976. As per Section 141, the procedure provided in Civil
Procedure Code In regard to suit shall be followed, as far as, it
can be made applicable in all proceedings in any Court of civil
F jurisdiction. By insertion of explanation, it has now been expressly
provided that expression "proceedings" includes proceedings
under Order IX C.P.C. [Paras 26, 271 (741-G-H; 742-A-B, DI
2 When Section 141 expressly refers to proceedings under
Order IX, as miscellaneous proceedings and appeals from such
G orden are expressly provided by Order XLllI Rule l(c) & (d), it
Is clear that right of appeal has been given, from the orders arising
out of the miscellaneous proceeding. [Para 28) 1742-El
3. It Is relevant to note that expression "proceedings" as
referred to In explanation contains only an inclusive definition.
H
JASWANT SINGH & ORS. v. PARK.ASH KAUR & ANR 733
What is explained in !;!Xplanation is not exhaustive rather A
inclusive. Dismissal of an application under Order IX Rule 13
C.P.C. in default, is an order passed in miscellaneous proceedings,
which is expressly included in Section 141 C.P.C. explanation.
But whether the application dated 21.08.2002 to recall the order
dated 19.10.2001 is also a miscellaneous proceeding, covered B
by miscellaneous 'proceedings' under Section 141 C.P.C. The
answer has to be 'yes' thus, application dated 21.08.2002 is also
a miscellaneous proceeding in which proceeding, the procedure
'prescribed in the Code for suits is to be followed. [Para 29) [742-
F-G)
4. Order IX Rule 9 C.P.C. refers to application filed by C
plaintiff for restoration of a suit which had been dismissed In
default. Application dated 21.08.2002 prays for recalling of the
order dated 19.10.2001, dismissing the application under Order
IX Rule 13 C.P.C. in default. [Para 30] [743-A]
5. When the application under Order IX Rule 13 C.P.C., D
which was filed by deceased, Predecessor-in-interest was
dismissed for non-appearance, an application to recall the said
order and to restore the application can very well be treated as
an application under Order IX Rule 9 C.P.C. to restore a
miscellaneous proceeding akin to suit and against the order E
rejecting such application an appeal is permissible under Order
XLIII Rule l(c) C.P.C. [Para 41) (748-E-F)
. 6.1 Section 141 CPC expressly provides that Order IX is
applicable to all proceedings in civil jurisdiction. When Order IX
is made applicable to the proceedings in the nature of application F
seeking recall of the order dismissing the application under Order
IX Rule 13 C.P.C. the order passed by the civil court rejecting
such application is clearly referable to Order IX Rule 9 C.P.C.
and an order which is clearly referable to Order IX Rule 9 C.P.C.
shall also be appealable by virtue of Order XLIII Rule l(c) C.P.C.
Rejection of application for restoration which is referable to Order G
IX, it cannot be refused to treat an order rejecting application
under Order IX Rule 9 C.P.C. for the purposes of Order XLIII
Rule l(c) C.P.C. [Para 58) [761-D-E)
6.2 The appeal filed by the appellants against order dated
23.12.2005 was clearly maintainable and the High Court erred in H
734 SUPREME COURT REPORTS [2017) 8 S.C.R.
A holding that such appeal was not maintainable. [Para 581 [761-H;
·762-A)
Whether the application filed on 21.08.2002 to recall the
order dated 19.10.2001 by which order application under Order
IX Rule 13 C.P.C. was dismissed for default deserved to be
B rejected as barred by time.
7.1 The High Court held that application for restoration
could be under Order IX CPC and the limitation for restoration
is 30 days from the date of dismissal as per Article 122. Even if
it is assumed that limitation for filing application was only 30 days,
c the appellants in their application itself have already given
sufficient explanation for filing the application under Or.9, Rule
13 on 21.08.2002. They were not aware of the application dated
20.07.1999 filed by their Predecessor-in-interest who could not
recover from illness and died on 20.11.2001. (Para 611 [762-G-
H; 763-A)
D
7.2 Section 5 of the Limitation Act was attracted in
application filed for restoration. The Appellate Court having found
sufficient cause for restoration, it is just and equitable to conclude
that there was sufficient cause for condonation of delay, if any.
Thus, the rejection of the application of the appellants on the
E above ground also cannot be sustained. [Para 62) [763-F)
K.P. Jayakumar v. K. Ravindran and Ors. AIR 2004
Ker 209 - approved.
Nathu Prasad v. Singhai Kapurchand AIR 1976 MP
136; Ram Chandra Aggarwal and another v. The State
F of Uttar Pradesh and another AIR 1966 SC 1888 :
[1966) SCR 398; Anandrao Kesheorao Pande v.
Krishnaji Baliram Dhapadkar AIR 1964 Born 232;
Hazi Rustam Ali v. Emamnuddin Khan and Ors. AIR
1981 Cal. 81; Gaja v. Mohd. Farukh and Ors. AIR
G 1961 ALL 561; Kallianikutty Amma v. The State of
Kera/a AIR 1974 Ker 171; Karni Dan Singh . Ram
Chandra and Ors. AIR 2003 Raj 98; Sri Sushi! Kumar
De and Am: v. Smt. Chhaya De and Anr. (2004) Cal
197 (HC) K.P. Jayakumar v. K. Ravindran and Ors.
AIR 2004 Ker 209 - referred to.
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 735
Case Law Reference A
AIR 1976 MP 136 referred to Para 7
[19661 SCR 398 referred to Para 38
AIR 1964 Born 232 referred to Para 47 B
AIR 1981 Cal. 81 referred to Para 49
AIR 2004 Ker 209 approved Para 50
AIR 1961 ALL 561 referred to Para 52
AIR 1974 Ker 171 referred to Para 53 c
AIR 2003 Raj 98 referred to Para 54
(2004) Cal 197 (HC) referred to Para 56
AIR 2004 Ker 209 referred to Para 57
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No.9409
of2017.
From the impugned final Judgment and Order dated
191h September, 2012 passed by the High Court of Punjab and Haryana E
at Chandigarh in Civil Revision No. l 009 of2009.
Dhruv Mehta, Sr. Adv., P.N. Puri, Rakesh Chopra, Abhishek
·Puri,· Ms. Reeta Dewan Puri, Advs. for the Appellants.
Ms.Suresh Kumari, Ms. Divya Mishra, S.L. Aneja, Sanjay Kapur,
Raj iv Kapur, Ms.Shubhra Kapur, Advs. for the Respondents. F
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. This is an appeal by legal heirs of one Ranjit Singh who was
defendant in Suit No. 123of1997 filed by Parkash Kaur, Respondent G
No. 1 praying for specific perfo~nce of an agreement dated 25.01.1995.
The suit proceeded ex parte against the defendant and by judgment and
order dated 06.12.1997 was decreed ex parte directing for specific
performance of agreement in favour of respondent-plaintiff. Respondent-
plaintiff was also directed to get the suit land redeemed from Defendant H
736 SUPREME COURT REPORTS [2017] 8 S.C.R.
A No. 2 with whom the suit property was mortgaged. The defendant No. I,
Ranjit Singh filed an application dated 20.07.1999 under Order IX Rule
13 C.P.C. praying for setting aside the ex parte decree dated 06.12.1997.
3. Case of the defendant in the application was that he was never
served in the above case and he had no knowledge regarding pendency
B at any stage. When the application filed by Ranjit Singh, defendant was
called on 19.10.2001, the learned counsel appearing for applicant-
defendant made a statement that he had no instructions from the applicant.
Consequently, the application filed under Order IX Rule 13 C.P.C. was
dismissed in default. Ranjit Singh died on 20.1I.2001. Legal heirs of the
Ranjit Singh, who are appellants in the present appeal, filed an application
C dated 2I .08.2002 praying that application under Order IX Rule 13 C.P.C.
be restored and applicants be allowed to pursue this application and be
also allowed to file written statement and contest the suit. The said
application dated 21.08.2002 was objected by the plaintiff.
4. The Trial Court vide its order dated 23.12.2005, dismissed the
D application filed by the appellants dated 2I .08.2002. Aggrieved by the
order dated 23.12.2005 ofTrial Court, an appeal was filed by the appellants
under Order 43 Rule I C.P.C. read with Section 104 C.P.C.
5. Learned District Judge after hearing both the parties allowed
the appeal, setting aside the order of the Trial Court and further restoring
E the application dated 20.07.1999 filed by the Ranjit Singh, defendant.
Aggrieved by the judgment of Appellate Court, plaintiff tiled a Civil
Revision under Article 227 of the Constitution oflndia before the High
Court.
6. The High Court by impugned judgment dated 19.09.2012 allowed
. F the Revision setting aside the order of the District Judge and restoring
the order dated 23.12.2005 of the Trial Court. The plaintiff raised the
issue of maintainability of appeal of the appellants before the District
Judge filed against the order dated 23.12.2005. It was submitted by the
Revisionist that when the suit or application for restoration ofapplication
0 under Order IX Rule 13 C.P.C. is dismissed for non-appearance of the
parties pursuing, then such order was not amenable to appeal and the
said order is not covered under Order XLIII Rule l(c) or l(d) of C.P.C.
7. Reliance was placed by learned counsel for the appellant on
the Full Bench Judgment of the Madhya Pradesh High Court in Nathu
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 737
[ASHOK BHUSHAN, J. ]
Prasad versus Singhai Kapurchand, AIR 1976 MP 136. The High A
Court thus proceeded to examine the question of maintainability of the
appeal and held that appeal filed by the appellant before the District
Judge against the order of Trial Court dated 23.12.2005 was not
.maintainable. High Court has also observed that restoration application
filed by the appellant was also barred by time.
B
8. The appellants aggrieved by the judgment of the High Court
have come up in this appeal.
9. We have heard learned senior counsel Shri Dhruv Mehta, for
the appellants and learned counsel, Shri Raj iv Kapur for respondent as
well. c
IO. Learned counsel for the appellants in support of the appeal
contends that High Court connnitted an error in holding the appeal filed
by the appellant as not maintainable. He submits that learned District
Judge has passed a just and equitable order setting aside the order,
dismissing the application under Order IX Rule 13 C.P.C. in default and D
reviving the said application for fresh consideration by the Trial Court.
Ex parte decree was obtained by the plaintiff without any contest hence
itwas necessary to consider the application filed by the appellants for
.restoring the application under Order IX Rule 13 filed by Ranjit Singh
deceased, defendant.
E
11. Learned counsel appearing for the respondent has supported
the judgment of the High Court and contends that the High Court has
rightly held that the appeal filed by the appellant before the District Judge
under Order XLIII Rule I was not maintainable.
12, We have considered the submissions of counsel for both the F
parties and perused the· record. The District Judge vide its order dated
30.01.2009 had set aside the order of the Trial Court, dismissing the
application of appellants praying for recall of the order dismissing
application under Order IX Rule 13 C.P.C.in default. District Judge had
remitted the matter to the Trial Court for consideration of the application
under Order IX Rule 13 C.P.C. filed by Ranjit Singh, deceased on merits. G
Appellate Court i.e. District Judge had held that the Trial Court committed
an error in holding that there was no ground for restoration of the
application. The fact that Ranjit Singh died within a span of one month
"from dismissal of the application in default and the case set up by the
H
738 SUPREME COURT REPORTS [2017] 8 S.C.R.
A appellants that Ranjit Singh fell seriously ill and was busy in treatment,
hence no one could appear and after he died the application was filed,
was believed by the Appellate Court.
13. The High Court having allowed the Revision on the ground
that appeal filed by the appellants against the order of the Trial Court
B dated 23 .12.2005 was not maintainable, we need to consider, the question
as to whether appeal filed by the appellants under Order XLlll Rule 1
C.P.C. was maintainable or not?
14. From the facts, as noted above, it is clear that ex parte decree
was passed in favour of plaintiff on 06.12.1997. Ranjit Singh who was
c defendant No. l filed an application under Order IX Rule 13 ofC.P.C.
to set aside the ex parte decree on 20.07 .1999 which application
remained pending although the notices were issued to the plaintiff. The
application, however, came on 19.10.2001 before the Court. On
19. l 0.2001 counsel appearing for Ranjit Singh made following statement:
D "I have no instruction from appellants, case be decided as per
law."
15. The Trial Court consequently dismissed the application under
Order IX Rule 13 C.P.C. in default. Ranjit Singh died on 20.11.2001.
The legal heirs ofRanjit Singh i.e. appellants filed an application dated
E 21.08.2002 in which following prayer was made:-
"/t is, therefore, prayed that the application under Order IX
Rule 13 read with Section 151 C.P.C. which was dismissed in
default on 19.10.2001 be restored and the applicants be
allowed to pursue this application and they be also allowed
to file the written statement and contest the suit. "
F
16. The Trial Court proceeded to hear the application dated
21.08.2002 on merits and by order dated 23.12.2005, dismissed the
application after holding that there is no sufficient ground for restoration
of application under Order IX Rule 13 C.P.C.
G 17. The provisions of Civil Procedure Code, which are relevant
for the purposes of the present case need to be noted now.
18. Order IX of the CPC contains provisions relating to
"appearance of parties and consequence of non-appearance". Order
H
JASWANT SINGH & ORS. v. PARK.ASH KAUR & ANR 739
[ASHOK BHUSHAN, J.]
IX Rule 9 and Order IX Rule 13 which are relevant for the present case A
are quoted as below:-
"9. Decree against plaintiff by default bars fresh suit.- (I)
Where a suit is wholly or partly dismissed under ntle 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 B
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. C
(2) No Order shall be made under this rule unless notice of
the application has been served on the opposite party.
13. Setting aside decree ex parte against defe11da11ts.- Jn any
case in which a decree is passed ex parte against a defendant, D
he may apply to the court by which the decree was passed for
an Order to set it aside; and if he satisfies the court that the
summons was not duly served, or that he was prevented by
any sufficient cause from appearing when the suit was·'called
on for hearing, the court shall make an Order setting aside E
the decree as against him upon such terms as to costs, payment
into court or otherwise as it thinks fit, and shall appoint a
. day for proceeding with the suit:
Provided that where the decree is of such a nature that it
cannot be set aside as against such defendant only it may be F
set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree
passed ex parte merely on the ground that there has been an
irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient G
time to appear and answer the plaintijf 's claim.
Explanation.- Where there has been an appeal against
a decree passed ex parte under this rule, and the appeal has
been disposed of on any ground other than the ground that
H
740 SUPREME COURT REPORTS [2017] 8 S.C.R.
A the appellant has withdrawn the appeal, no application shall
lie under this rule of setting aside the ex parte decree. "
19. Section 104 enumerates the orders from which the appeal
lies. Order XLIII provides for "appeals from order". Order XLIII Rule
1 (c) & (d) which are relevant for the present case are quoted as below: -
B "I.Appeal from orders.- An appeal shall lie from following
orders under the provisions of Section I04, namely:-
(c} an order under rule 9 of Order IX rejecting an application
(in a case open to appeal) for an order to set aside the
dismissal of a suit;
c
(d) an order under rule I 3 of Order IX rejecting an application
(in a case open to appeal) for an order to set aside a decree
passed ex parte;"
20. We may first examine, as to whether, the order dated
D 19.10.2001 by which application filed by Ranjit Singh, defendant was
dismissed in default, was appealable or not? Order XLIU Rule l (d) .
permits appeal from "an order under Rule 13 of Order IX rejecting an
application". There can not be any dispute that ex parte decree passed
by the Civil Judge dated 06.12.1997 was appealable and Ranjit Singh,
the defendant chose to file an application under Order IX Rule 13 praying
E for setting aside the exparte decree dated 06.12.1997, with the further
prayer that suit be decided on merits after giving opportunity to the
appellant Ranjit Singh.
21. The statutory provision of Order XLIII Rule l (c) and l (d)
C.P.C. uses the words "rejecting an application''. When the appeal is
F provided on rejection of an application, we need not read any further
pre-condition in the word rejecting. When the right of appeal has been
given on "rejecting" an application the said right cannot be read to limit
the right of appeal only when application is rejected on merit. Taking any
such interpretation will be nothing but adding words to statute which is
clearly impermissible.
0
22. Full Bench of Madhya Pradesh High Court in Nathu
Prasad(supra) case had occasion to consider the words "rejecting an
application" as contained in Order XLIII Rule l(c) C.P.C. After
considering the earlier judgments of the different High Courts the Full
Bench opined as follows:
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 741
[ASHOK BHUSHAN, J. ]
" ...... .Jn our opinion, there is nothing in the wording of Order A
43 Rule I (c), Civil P. C. to restrict it to rejection on merits.
The words "rejecting an application" are comprehensive
enough to include dismissal for default on rejection, in any
. other situation whatever. "
Thus, there cannot be any dispute that when the application was B
rejected in default under Order IX Rule 13 C.P.C., the right of appeal
could have been exercised under Order XLIII Rule l(d) C.P.C.
23. In the present case againstthe order dated 19.l 0.200 l , rejecting
the application under Order IX Rule 13 C.P.C. in default, no appeal was
filed. Rather after the death ofRanjit singh on 20.11.2001 his legal heirs, c
who are appellants before us filed an application on 21. 08.2002, praying
for restoration of the application under Order IX Rule 13 C.P.C. Further,
they prayed that they may be allowed to contest the suit. The application
dated 21.08.2002 was dismissed on merit by Trial Court holding that
there was no sufficient cause for restoration. The appeal was filed
against the order dated 23.12.2005 before the Appellate Court. D
24. From the perusal of judgment of Appellate Court dated
30.01.2009, it is clear that although, various arguments were raised by
counsel for the plaintiff including that application was barred by limitation
but no argument was raised regarding maintainability of the appeal. Non-
raising of the objection regarding maintainability of the appeal is relevant E
in another context. Supposing an objection was raised regarding
maintainability of the appeal before the District Judge, in event the
Appellate Court could have arrived that appeal was not maintainable,
the District Judge could have been exercised its revisional jurisdiction
under Section 115 C.P.C. Due to non-raising the objection regarding the F
maintainability, the above opportunity was lost both to the appellant as
well as to the Revisional Court.
25. We are, however, of the view that High court having allowed
the plaintiff to raise the question of maintainability of the appeal which is
a legal issue and the High Court having held that appeal is not maintainable G
the question need to be gone into on merits and answered. ·
..
26. The application filed by appellant dated 21.08.2002 for
restoration of the application under Order IX Rule l 3C.i>.C., which waS'
dismissed in default, is not expressl)t covered by the provisions of Order
H
742 SUPREME COURT REPORTS [2017] 8 S.C.R.
A IX C.P.C .. The application dated 21.08.2002 was miscellaneous
proceeding on which Civil Miscellaneous Case No. 30 of 2002 was
registered. What are the provisions and procedure for miscellaneous
proceeding have to be looked into for deciding the issue. Section 141 of
C.P.C. is relevant in this context. Section 141 C.P.C. deals with
B miscellaneous proceeding. An Explanation has been inserted under Section
141 by Act 104of1976. Section 141 C.P.C. after amendment w.e.f.
01.02.1977 is 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
c jurisdiction.
[Explanation.-In this section, the expression "proceedings"
includes proceedings under Order IX, but does not include
any proceeding under article 226 of the Constitution.}"
I) 27. As per Section 141, the procedure provided in Civil Procedure
Code in regard to suit shall be followed, as far as, it can be made
applicable in all proceedings in any Court of civil jurisdiction. By insertion
of explanation, it has now been expressly provided that expression
"proceedings" includes proceedings under Order IX C.P.C.
E 28. When Section 141 expressly refers to proceedings under Order
IX, as miscellaneous proceedings and appeals from such orders are
expressly provided by Order XLIII Rule I(c) & (d), it is clear that right
of appeal has been given, from the orders arising out of the miscellaneous
proceeding.
F 29. It is relevant to note that expression "proceedings" as referred
to in explanation contains only an inclusive definition. What is explained
in explanation is not exhaustive rather inclusive. Dismissal of an
application under Order IX Rule 13 C.?.C. in default, is an order passed
in miscellaneous proceedings, which is expressly included in Section 141
C.P.C. explanation. But whether the application dated 21.08.2002 to
G recall the order dated 19.10.2001 is also a miscellaneous proceeding,
covered by miscellaneous 'proceedings' under Section 141 C.P.C. The
answer has to be 'yes' thus, application dated 21.08.2002 is also a
miscellaneous proceeding in which proceeding, the procedure prescribed
in the Code for suits is to be followed.
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 743
[ASHOK BHUSHAN, J. ]
30. Order IX Rule 9 C.P.C. refers to application filed by plaintiff A
for restoration of a suit which had been dismissed in default. Application
.dated 21.08.2002 prays for recalling of the order dated 19.10.2001,
dismissing the application under Order IX Rule 13 C.P.C. in default.
31. Before we proceed further, it is necessary to consider the Full
Bench judgment of High Court of M.P. in Nathtt Prasad case(sttpra). B
Before the Full Bench following three questions were referred to be
answered:
"(1) Whether an appeal lies under Order 43, Rule 1 (c),
rejecting/dismissing for default an application under Order
17, Rule 2, read with Order 9, B. 9, Civil P. C. ? C
(2) Whether the Division Bench which decided Komalchand
v. Pooranchand could take a contrary view to the one taken
in Pooranchand v. Komalchand, which had been decided by
a Division Bench ?
(3) Whether the earlier decision in Pooranchand v. D
Komalchand, operated as res judicata in the later case
. (Komalchand v. Pooranchand) ?"
32. The Full Bench further, split the first question in following
three parts:-
E
"(i) When an application under Order 9, Rule 9, Civil P.C., is
dismissed for default, whether an application lies for its
restoration under Order 9, Rule 9, Civil P.C.?
(ii) Whether an order dismissing an application under Order
9, Rule 9, Civil P.C. is appealable under Order 43, Rule 1 (c),
F
Civil P.C.?
(iii) If both the questions are answered in the affirmative,
whether both the remedies are concurrent or either of them
excludes the other?"
33. We have already noticed that while considering the words G
"rejecting an application" Full Bench held that the words "rejecting an
.application" are comprehensive enough to include the dismissal for default
or rejection on any other ground. The Full Bench has held that appeal
will lie under Order XLIII Rule l(c) C.P.C., even when, application
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744 SUPREME COURT REPORTS [2017) 8 S.C.R.
A under Order IX Rule 9 C.P.C. is dismissed in default. It is useful to
extract the following observations of Full Bench:-
" We have not come across any argument to demonstrate that
the provisions of Order 43, Rule I (c) led to any absurdity or
hardship, if the plain meaning of the clause is accepted.
B Consequently, it is not permissible to add the words "on
merits," or any other words, in the said Clause (c). It is the
first principle of interpretation of statutes that effect must be
given to the intention of the legislature. And, it is equally
fundamental that the language of the law itself is the
depository of the intention of the legislature. Therefore, where
c the language is clear, and the meaning plain, effect must be
given to it. The Court cannot read a law as if its language is
different from what it actually is. Otherwise, it will amount to
amending the law, which is not permissible for the Court. See,
for instance, Thakur Amarsinghji v State of Rajasthan, (1955)
D 2 SCR 303 and Firm Hansraj Nathurum v. Firm Lalji Raja
and Sons, (1963) 2 SCR 619. The primary duty of the Court
is to give effect to the intention of the legislature as expressed
in the words used by it and no outside consideration can be
called in aid to find another intention-See New Piece Goods
Bazar Co. Ltd., Bombay v. Commissioner of Income-tax,
E Bombay, (1950) 1 SCR 553.
The result of this discussion is that in our view, an appeal lies
from an order dismissing for default or on merits. an applica-
tion under Order 9, Rule 9, Civil P. C. "
F 34. The Full Bench, however, took the view that when an
application under Order IX Rule 9 C.P.C. for restoration of the suit is
rejected and an application is made for restoration of the application
although, such application also falls ·v;•hin the purview of Order IX Rule
9 C.P.C., read with Section 141, Civil P.C., yet, the order rejecting the
application does not fall within the Order 43 Rule l (c) C.P.C. in as much
G as the subsequent application is not "for an order to set aside the dismissal
of a suit"; it is for an order to set aside dismissal of the application. The
Full Bench summed up its conclusion in following words:-
"Let it be mentioned for removal of doubt, and for making
the picture complete, that when an application ('A ') under
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 745
[ASHOK BHUSHAN, J. ]
Order 9, Rule 9, Civil P. C.,for restoration ofthe suit is rejected A
and an application ('B ') is made for restoration of the
application ('A') although such application ('B ') also falls
within the purview of Order 9, Rule 9, read with Section 141,
Civil P. C., yet, the order rejecting the application ('B ') does
not fall within Order 43, Rule 1 (c) inasmuch as the application B
('B ') is not "for an order to set aside the dismissal of a suit";
. it is for an order to set aside dismissal of the application ('A').
We may now sum up the conclusions we have reached on the
above discussion :-
(i) When application ('A') under Order 9, Rule 9, Civil P. C
C, is itself dismissed for default of the plaintiff/petitioners
appearance, an application ('B ') lies under Order 9, Rule
9, read with Section 141 of the same Code, for restoration
of the application ('A'). Jn order to succeed in this pro-
ceeding ('B '), the petitioner has to satisfy the Court that
he was prevented by sufficient cause from appearing on D
the date when the application ('A') was called on for hear-
ing.
(ii) The order of dismissal for default of the application
('A') is appealable under Clause (c) of Rule 1. Order 43.
Civil P. C. E
(iii) Both the above remedies, i. e., application under
Order 9, Rule 9, and appeal under Order 43, Rule I (c)
are concurrent. They can be resorted to simultaneously.
Neither excludes the other. The scope of each of the above
proceedings is, however, different. F
(iv) When an appeal (second remedy) is decided, one way
or the other, the order of dismissal for default appealed
from gets merged in the order of the appellate Court, so
that thereafter the application ('B ') under Order 9, Rule
9, becomes in-fructuous. When it comes to the notice of G
the appellate Court that an application has also been made
under Order 9, Rule 9, for restoration, the appellate Court
may do well to postpone the hearing of the appeal until
the decision of the application under Order 9, Rule 9, Civil
P. c.
H
746 SUPREME COURT REPORTS [2017) 8 S.C.R.
A (v) No appeal lies from an order rejecting an application
('B ')for restoration of application ('A'). which latter
application was for restoration of the suit.
(vi) As observed by their Lordships of the Supreme Court
in Mahadeolal Kanodia v. Administrator General of West
B Bengal, AIR 1960 SC 936 and Jaisri v. Rajdewan, AIR
1962 SC 83, if a Division Bench does not agree with
another Division Bench in a decision rendered earlier, the
Second Division Bench must either follow the earlier
decision or place the matter before the Chief Justice for
being referred to a larger Bench. But, the second Division
c Bench cannot take upon itself the task of holding that the
decision of the first Division Bench was wrong.
We answer this reference accordingly. The matter shall now
be placed before the single Bench."
D 35. The reasoning given by the Full Bench as extracted above, is
that, since the subsequent application is not for an order to set aside the
dismissal of the suit and it is only for an order to set aside the dismissal
of the application in default, it does not fall under Order XLlll Rule 1 (c)
C.P.C.
E 36. The High Court lost sight to the essence of the prayer in the
second application. The prayer in the second application is to restore the
earlier application which was dismissed in default and decide the said
application. Thus, the ultimate prayer is to set aside the dismissal of the
application under Order IX Rule 13 C.P.C. which is a miscellaneous
proceeding initiated by predecessor-in-interest of the appellants. The
F restoration application filed by appellants is referable to Order IX Rule 9
C.P.C. since it prays for restoration of miscellaneous proceedings
dismissed in default.
37. No one doubts that when first application, which sought to set
aside the dismissal of the suit, was dismissed in default and appeal would
G lie under Order XLIII Rule 1 (c) C.P.C. which has also been held by the
Full Bench of High Court of M.P.(supra). Because, the applicant or his
legal heirs immediately, did not file an appeal and sought to get the order
recalled to revive the application, the right of appeal cannot be held to be
lost.
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 747
[ASHOK BHUSHAN, J. ]
38. It is true that Section 141 only provides for procedure to be A
.,
followed in a miscellaneous proceeding and that question of right of
appeal has to be looked into from other provisions of the statute and not
from Section 141. In the miscellaneous proceedings right of appeal has
to read as has already laid down by this Court in Ram Chandra
Aggarwal and another vs. The State of Uttar Pradesh and another,
B
AIR 1966 SC 1888.
39. The above judgment was rendered in context of Section 141
and Section 24 of the C.P.C. The question arose in the aforesaid case,
as to whether, the proceeding of reference made by a Magistrate under
Section 146 of Cr. P.C. is a "proceeding" within the meaning of Section
141/24 of the C.P.C. In the above case, the District Judge has C
exercised the power under Section 24 C.P.C. for transferring the reference
proceeding from one Civil Court to another Civil Court. The order of
transfer was complied with and no question of jurisdiction was raised
before the transferee Court but after return of the finding by the Civil
Court and after passing of the subsequent order the Revision Application D
was filed before the Court of Sessions where argument was raised that
the transfer was without jurisdiction, and transferee Civil Court's order
is nullity. It was further held that the District Judge could not have
transferred the proceeding since it was not a civil proceeding. The
argument was raised in the above case that if it is held that the
proceeding before the Civil Court is a civil proceeding than all the Rules E
of procedure contained in the CPC including those relating to appeals or
revision would apply to the proceeding. The said argument was repelled
.by this Court and following was laid down in Para 5:-
"5. Mr. Iyengar tried to put the matter in a somewhat
different way. In the first place, according to him, if we hold F
that the proceeding before the civil court is a civil
proceeding then. all the rules of procedure contained in the
Civil Procedure Code. including those relating to appeals or
revision would apply to the proceeding. This, he points out,
would be contrary to the provisions of S. 146(1-D) of Code o
of Criminal Procedure which bar an appeal, review or revision
from any finding of the civil Court. From this he wants us to
infer that the proceeding does not take the character of a
civil proceeding even though it takes place before a civil Court.
H
748 SUPREME COURT REPORTS [2017) 8 S.C.R.
A We are not impressed by this argument. J(sub-s. 0-D) had
not been enacted (and this is really a new provision) an appeal
or revision application would have been maintainable. Now
that it is there, the only effect of it is that neither an appeal
nor a revision is any longer maintainable. This consequence
ensues because of the express provision and not because the
B
proceeding before the civil Court is not a civil proceeding. "
(underlined by us)
40. Noticing the provisions of Section 146 (1-D) ofCr.P.C. which
contained a bar on appeal, review or revision from any finding of the
c Civil Court, this Court held that the normal appeal or revision as provided
in Civil Court shall not be applicable. This Court, thus, clearly held that in
a miscellaneous proceeding before a Civil Court the Rules of procedure
contained in Civil Court including those relating to the appeals or revision
would apply to the miscellaneous proceeding which were initiated
before the Civil Court. In view of the above, the miscellaneous
D proceedings initiated by appellant by application dated 21.08.2002 was
to be conducted by virtue of Section 141 C.P.C. and the right of appeal
as is also available in accordance with the provisions of Order XLIII
Rule 1.
41. When the application under Order IX Rule 13 C.P.C., which
E W,as filed by deceased, Ranjit Singh was dismissed for non-appearance,
an application to recall the said order and to restore the application can
very well be treated as an application under Order IX Rule 9 C.P.C. to
restore a miscellaneous proceeding akin to suit and against the order
rejecting such application an appeal is permissible under Order XLlll
F Rule l(c) C.P.C.
42. There is thus no reason for holding that appeal filed by the
appellants before the District Judge against the order dated 23.12.2005,
was not maintainable.
43. Further, when the appellants could have filed appeal against
G order dated 19.10.2001 under Order XLIII Rule l(c) C.P.C., said right
shall not be lost on the ground that they tried to get that order recalled by
filing an application.
44. When this Court in Ram Chandra Aggarwal (Supra) has
already laid down that miscellaneous proceedings are governed by the
H
iASWANT SINGH & ORS. v. PARKASH KAUR & ANR 749
[ASHOK BHUSHAN, J. ]
procedure prescribed in C.P.C. as far as possible including the right of A
appeal and n;vision. After dismissal of the application of the appellant
dated 21.08.2002, the remedy of the appeal was not precluded to them
for the reasons as noted above.
45. There are several judgments of different High Courts taking
different views on the question of right of appeal, on question of B
interpretation of Order XLIII Rule l(c) & l(d) C.P.C. It is useful to
refer to some of the cases of the High Courts where divergent views
are reflected.
46. One set of cases takes view that such application having been
dismissed for default, the appeal shall lie under Order XLIII Rule l(c) c
C.P.C., whereas in other set of cases view has been taken that dismissal
·of an application to recall the order passed dismissing the application
under Order 9 Rule 13 C.P.C. is not appealable. It is sufficient to take
note of few of such cases taking divergent views.
47. In Anandrao Keslteorao Pande vs. Krislmaji Baliram D
Dltapadkar, AIR 1964 Born 232, Chandrachud, J. (as he then
was)had considered the provisions of Order IX Rule 8 and 9 as well as
Order XLIII Rule 1(c) C.P.C. in the context of proceedings which were
initiated under Section 3 of Madhya Pradesh Temporary Postponement
of Execution of Decrees Act, 1956. The proceedings were initiated by
the revisionist under Section 3 of the above mentioned Act by filing E
application. The said application was dismissed for default on 21"
December, 1961. After such dismissal, an application for restoration of
application which was dismissed for default was filed as well as a fresh
application was filed. The restoration application was dismissed on the
ground that application under Order IX Rule9 C.P.C. was not maintainable F
and further there was no sufficient cause for the absence of the petitioner
·on 2l''December, 1961. The facts of the case and the issue which arose
before the Court were noticed in paragraphs 1 and 2 of the judgment
which are quoted below:
1. This revisional application arises out of proceedings which G
were initialed by the petitioner (judgment-debtor) under
Section 3 of the Madhya Pradesh Temporary Postponement
of Execution of Decrees Act, 1956 (M. P. Act No. V of 1956),
which will hereinafter be referred to as the Act. On the 16th
of June, 1960, the respondent filed a darkhast to execute the
H
750 SUPREME COURT REPORTS [2017] 8 S.C.R.
A decree, which he had obtained against the petitioner for the
rejimd of earnest money. On the 22"" of July. 1960, the
petitioner j//ed an application for stay of execution of the
decree under Section 3 (1) of the Act, which reads thus:
"All proceedings in execution of any decree for money. or
B proceedings for making .final any preliminary decree for
foreclosure or sale, or proceedings in execution of any final
decree for sale, passed by a Civil Court on the basis of a
liability incurred before this Act comes into force, in which
a Judgment-debtor or defendant. as the case may be is on
the date this Act comes into, force, an agriculturist, shall
c be stayed against such judgment-debtor or defendant. on
an application made by him in this behalf during the period
this Act remains in force."
On 2f'' of December, 1961, the application was dismissed for
default, as the petitioner was absent. After the application
D was so dismissed, the petitioner adopted two different but
parallel proceedings, one of them being an application for
the restoration of the application which was dismissed for
default and the other being the institution of a similar but
fresh application The fresh application was filed on the 4'" of
E January, 1962, whereas the application for restoration was
filed on the 12'" of January, 1962. On the 14'" of February,
1962, the application for restoration was dismissed partly on
the ground that an application under Order 9, Rule 9 of the
Code of Civil Procedure was not maintainable and partly for
the reason that there was no sufficient cause for the absence
F of the petitioner on the 21st of December 1961. On the 27'"
of September 1962 the fresh application was also dismissed
for the obviously inconsistent reason that Order 9, Rule 9
would govern applications filed under Section 3 of the Act
and as the petitioner had not preferred an appeal against the
G older dated 14'" February 1962, the fresh application under
Section 3 was not maintainable. It is against this order that
the present revision application has been filed.
2. The main question, which arises in this revision application
is whether the provisions contained in Order 9 of the Code of
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 751
[ASHOK BHUSHAN, J.]
Civil Procedure would apply to applications which are filed A
under Section 3 (1) of the Madhya Pradesh Temporary
Postponement of Execution of Decrees Act, 1956. lf the
proceedings initiated by an application filed under 5ecf;ion 3
of the Act are in the nature of execution proceedings t~ e 'l?it
is indisputable that the provisions of Order 9 will not be B
attracted. On the other hand, if the proceedings, which a
judgment-debtor takes under Section 3 of the Act, are not in
the nature of execution proceedings, but are in the nature of
substantive original proceedings, then it would be equally
clear that the provisions of Order 9 would apply to the
proceedings." C
48. The Bombay High Court held that in proceedings under Madhya
Pradesh Temporary Postponement of Execution of Decrees Act, 1956,
the provisions of Order IX Rule 8 would apply by reason of the provisions
contained in Section 141 ofC.P.C. It was held that the application which
was filed by the petitioner for restoration was held to be competent and D
it was further held that it was open for the petitioner to file an appeal
under Order XLIII Rule l(c) of C.P.C. Following was laid down in
paragraphs 6 and 7 of the judgment:
"6. Jn my opinion, the proceedings initiated by a judgment-
debtor under Section 3 (1) of the Madhya Pradesh Temporary E
Postponement of Execution of Decrees Act, are not in the
nature of execution proceedings but are in substance,
independent original proceedings undertaken by the
judgment-debtor for assertion of substantive rights. To such
proceedings, the provisions of Order 9 Rule 8 of the Code of
Civil Procedure would apply by reason of the provisions F
contained in Section 141 of the Code which provides that the
procedure provided in the Code with regard to suits shall be
followed, as far as it can be made applicable, in all
proceedings' in any Court of Civil jurisdiction. It is well-settled
that what Section 141 contemplates is original proceedings G
and to all such original proceedings which fall under the
section, the provisions of Order 9 must apply. Jn the result,
therefore, the application which was filed by the petitioner
on the 12th of January, 1962, for the restoration of the
H
752 SUPREME COURT REPORTS [2017] 8 S.C.R.
A application tiled under Section 3 of the Act which was
dismissed for default on the 21st December, 1961, must he
held to be competent.
7. 1t the application for restoration was maintainable and it
the application was dismissed both on the ground that it did
B not lie and that the petitioner had no sufficient cause to remain
absent on the 21st of December, 1961, then the proper remedy
for the petitioner to adopt was to file an appeal under Order
43, Rule 1 (c) of the Code of Civil Procedure and not to tile a
fresh application for restoration as the, petitioner did on 24-
1-1962, The present application, which is a fresh Application
c under Section 3 of the Act cannot be held to be maintainable
for the reason that if a suit is dismissed for default and an
application for setting aside the dismissal is itself dismissed,
a fresh suit on the same cause of action would be barred
under the provisions of Order 9, Rule 9 of the Code of Civil
D Procedure. As these provisions apply to applications also by
reason of Section 141 of the Civil Procedure Code, a fresh
application must he held to be barred if the earlier application
for setting aside the dismissal for default is itself dismissed. "
49. In Hazi Rustam Ali vs. Emamnuddin Khan and Ors., AIR
E 1981 Cal. 81, an ex parte decree was passed on 21" January, 1977. An
application under Order IX Rule 13 C.P.C. was filed by the defendant to
set aside the ex parte decree, registered as miscellaneous case, was
dismissed in default on 9th September, 1978 and on the same day an
application under Section 151 C.P.C. was filed for restoration of the
petition which was dismissed by the Munsifholding that application under
F Section 151 C.P.C. is not maintainable. In the above case argument was
raised that against the order dismissing the application in default, remedy
was available to the defendant to file an appeal under Order XLIII Rule
l(c) C.P.C. or make an application for restoration under Order IX Rule
9 C.P.C. The said argument was accepted by the Court in paragraphs 5
G and 6 which is as follows:
"5. In this connection, Mr. Bagchi has relied upon a
decision reported in A1R 1976 MP 136(FB). lt has been held
in this case that a proceeding in court in respect of an
application under Order 9, Rule 9 is a proceeding in a court
H
JASWANT SINGH & ORS. v. PARK.ASH KAUR & ANR 753
[ASHOK BHUSHAN, J. ]
of civil jurisdiction within Section 141. An application under A
Order 9, Rule 9 of the Code of Civil Procedure is not an
interlocutory application. By its nature an application under
Order 9, Rule 9 is an independent application and it is
registered as an independent Misc. Judicial case. Hence an
application lies to restore the application which was dismissed B
for default which application had been made for setting aside
the dismissal of a suit for default. It has been further held
that there is nothing in the wordings of Order 43, Rule 1 (c)
of the Civil Procedure Code to restrict it to rejection on merits.
The words "rejecting an application" are comprehensive
enough to include dismissal for default, rejection in any other C
situation whatever. Thus, an appeal lies under Order 43, Rule
1 (c) from an order dismissing for default or on merits, an
application under Order 9, Rule 9. When an application is
made for an order to set aside the dismissal of a suit and such
an application is rejected by an order under Order 9, Rule 9, D
Civil Procedure Code, in terms, it falls under Order 41, Rule
1 (c). Now when a suit is decreed ex parte and an application
. under Order 9, Rule 13 is dismissed for default and an
application is made to set aside the dismissal, it would attract
the provisions of Order 9, Rule 9 it is in view of the amended
provisions of Section 141 of the C. P. C. When an application E
under Order 9, Rule 13 is dismissed for default, both the
remedies are available to the applicant, He can apply for
restoration under Order 9, Rule 9, C. P. C. or he may appeal
under Order 43, Rule 1 (c). Thus, side by side, two remedies
are open to him.
F
6. Mr. Bagchi submitted that instead of making an application
under Section 151 the proper course would have been to make
an application for restoration of the application dismissed
for default under Order 9, Rule 9 of the C. P. C. read with
Section 141, Civil P. C. Hence there is no need to refer to the
decision reported in AIR 1975 Cal 80 (FB). Since the Code G
provides for an alternative remedy, it is well known that the
. remedy under Section 151 is not available. There seems to be
much substance in the contention of Mr. Bagchi which I
uphold."
'H
754 SUPREME COURT REPORTS [2017] 8 S.C.R.
A 50. In K.P. Jayakumar vs. K. Ravindran and Ors., AIR 2004
Ker 209, the Division Bench of the Kerala High Court had occasion to
consider the maintainability of appeal under Order XLIII Rule 1(c) C.P.C.
as against an order refusing to restore the insolvency petition dismissed
for default. Paragraph 2 of the judgment gives fact of the case which is
to the following effect:
B
"2.Appellant herein preferred a petition under Section 7 of
the Provincial Insolvency Act before the Subordinate Judges
Court, Tellicherry to declare him as insolvent. Insolvency
petition was posted for evidence on 25-11-2002. On that day
petitioner was absent. Case was adjourned to 28-11-2002.
c On that day also petitioner remained absent. Consequently
that petition was dismissed for default. Petitioner then filed
IA 312103 under Order IX Rules 4 and 8 of the Code of Civil
Procedure for restoration of the insolvency petition dismissed
for default. IA was dismissed holding that sufficient grounds
D have not been made out, against which this appeal has been
preferred."
51. Section 5 of the Provincial Insolvency Act, 1920 provided that
the Court, in regard to proceedings under Insolvency Act shall have the
same powers and shall follow the same procedure as it follows in the
E exercise of original civil jurisdiction. The High Court held that Order IX
was clearly applicable hence the aggrieved party could have filed the
petition. In case such a petition was dismissed, the aggrieved party could
file appeal under Order XLIU Rule 1(c)of the C.P. C. Paragraph 3 of the
judgment is relevant which is quoted below:
F "3. We have already indicated that appeal was preferred under
Order 43, Rule 1(c) of CPC which reads as follows :
An appeal shall lie from the following orders under the
provisions of Section 104;
(c) an order under Rule 9 of Order IX rejecting an application
G (in a case open to appeal) for an order to set aside the
dismissal of a suit. ·
Provisions of the Code of Civil Procedure is made applicable
to exercise powers of Courts under the Provincial Insolvency
H
JASWANT SINGH & ORS. v. PARK.ASH KAUR & ANR 755
[ASHOK BHUSHAN, J. ]
Act. Section 5 is relevant for our purpose which is extracted A
below :
5. General Powers of Courts -(!)Subject to the provisions
of this Act, the Court, in regard to proceedings under this
Act, shall have the same powers and shall follow the same
procedure as it has and follows in the exercise of original B
civil jurisdiction.
(2) Subject as aforesaid, High Court and District Courts, in
regard to proceedings under this Act in Courts subordinate
to them, shall have the same powers and shall follow the same
procedure as they respectively have and follow in regard to c
civil suits.
Under Section 5(1) the insolvency Court is given, subject to
the provisions of the Act, the same powers to follow the same
procedure under the provisions of the Code of Civil Procedure.
Section 5 stipulates that provisions of Code of Civil Procedure D
are applicable subject to the provisions of the Act. Under
Section 5, the provisions of the Civil Procedure Code,
including those contained in Order IX, have been made
applicable to proceedings under the Act except when they
are in conflict with any of the provisions of the Insolvency
· Act. There is no provision in the Insolvency Act for restoration E
of an application dismissed for default. Consequently
aggrieved party could file petition only under Order IX Jn
case such a petition is dismissed the aggrieved party could
file appeal under Order 43, Rule 1 (c). Under such
circumstance we are of the view that this appeal is F
maintainable. Number the appeal and post for admission. "
52. Now ~e refer to other set of cases where view has been
taken that appeal is not maintainable. In Gaja vs. Mohd. Farukh and
Ors., AIR 1961 ALL 561, it was held:
"... An appeal is a substantive right and not a mere matter of G
procedure and unless it is conferred by Order 43, Civil
Procedure Code, it cannot be inferred by implication from
Section 141 of the Code. Order 43 does not provide for an
appeal from an order dismissing for default an application
H
756 SUPREME COURT REPORTS [2017) 8 S.C.R.
A for restoration of an application under Order 9, Rules 9 and
13, Civil P. C. No appeal therefore lay from the order of the
Munsif dismissing the application dated the 3rd September,
1956."
53. In Kallianikutty Amma vs. The State of Kera/a, AIR 1974
B Ker 171, the Kerala High Court had taken the same view. The Kerala
High Court held that in the absence of specific provision in the Act
conferring the substantive right of appeal, the provisions of Section 141
of the C.P.C. cannot be applied except to procedural matters. The right
of appeal is a substantive right conferred specifically by a statute. In the
above case proceedings in a land acquisition reference were dismissed
C in default. An application was filed to restore the land acquisition
reference. The application for restoration ofland acquisition reference
was dismissed as barred by time against which revision was filed in the
High Court. Preliminary objection was raised regarding the maintainability
of the petition. It was contended that the appeal ought to be filed under
D Order XLIII Rule 1(c) C.P.C., hence, the revision was not maintainable.
The Kerala High Court has after noticing the various earlier cases of
the High Court held the following:
"4. The learned Counsel appearing for the revision petitioner
submits that reliance by the learned Government Pleader on
E the Full Bench decision of this Court in 1969 Ker LT 275 is
rather misplaced, as the Full Bench made a distinction
between the 'proceedings ' on the one hand and the 'suit' on
the other. Jn the absence of specific provision in the Act
conferring the substantive right of appeal, the appeal has to
be filed in the High Court irrespective of the valuation of the
F subject-matter. What is to be underlined, according to the
learned Counsel, is that the provisions of Section 141 of the
Code of Civil Procedure, cannot be applied except to
procedural matters, and it cannot be invoked in cases where
the right of appeal is a substantive right conferred specifically
G by a statute. An appeal could arise only from such orders as
are made appealable specifically by the statute, and that
cannot be extended to other orders that may be passed in the
course of the enquiry during the pendency of the proceedings
in which such appealable order is passed. The proceeding
under the provisions of the Land Acquisition Act arising out
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 757
[ASHOK BHUSHAN, J. ]
of references under Section 20 are to be deemed to be A
proceedings of a civil nature as referred to in the Full Bench
decision of this Court in 1969 K LT 275. The Madras High
Court had occasion in Venkata Reddi v. Ramabrahman : AIR
1953 Mad 417 to consider the scope of the application of
Order XLIII, Rule 1 (a) of the Civil Procedure Code with B
respect to orders passed under Section 19 of the Madras
Agriculturists' Relief Act. There the contention was that
Section 25-A of the Act was wide enough to authorise an
· appeal against an order under Section 19 for presentation to
the proper Court on the ground of want of jurisdiction in the
court to which it is presented. In the said case Raghava Rao, C
J., held-
"............. The interpretation to be placed upon the language
in Order 43, R. l(a) is, in my opinion, this namely, that if
under Order 7, Rule JO an order for the return of a plaint
has been made, that will certainly be appealable. I am D
inclined to think that the right of appeal under that
provision cannot stand attracted to orders made in
connection with matters other than suits or plaints merely
because of Section 141, Civil P. C. which can only imply
and involve that the mode of trial laid down by the Code
in regard to suits will be available in the case of all original E
petitions as well. "
. The Calcutta High Court had occasion to consider the .
applicability of the provisions contained in Order XLJJI, Rule
1(c) while dealing with the question whether an order on a
petition for setting aside an order passed under Section 26-F F
of the Bengal Tenancy Act (Act 8 of 1885) is appealable. After
referring to the scope of Section 141 and Order IX, Rule 9,
Civil Procedure Code, Harries, C. J., held:-Birendranath v.
Mono-rama Devi, AIR 1948 Cal 77-
"(8) It is to be observed that Sec. 141 speaks of procedure. G
What is made applicable to all proceedings in a Court of
Civil jurisdiction is the procedure provided in the Code
with regard to suits. Now, a right of appeal is admittedly a
substantive right. and not a procedural right. Section 141
H
758 SUPREME COURT REPORTS [2017] 8 S.C.R.
A does not deal with substantive rights and therefore Courts
have held that though Order 9, Rule 9 is made applicable
to applications other than suits no appeal would lie from a
dismissal of such an application under Order 43. Rule 1."
Jn yet another decision of the Calcutta High Court in Habibar
B Rahaman v. Saidan-nessa Bibi:AJR 1924 Cal 327, a Division
Bench consisting of Mookerjee, J., and Pan-ton, J., has held
as follows:
"it is well settled in this Court ......... that mutawallis may
be authorised to execute leases of this description, by the
c District Judge, who, for this purpose, is competent to
discharge the functions of a Khazi under the Mahomedan
law. The nature of the proceedings was considered in
Fakhrunnessa Begum v. District Judge of24 Parganas ILR
1920) Cal 592): AIR 1920 Cal 129, where it was pointed
out that the proceeding is not a suit but merely a proceeding
D governed by Section 141 of the Civil P. C. The fact that the
provisions of the Civil Procedure Code regulate the
proceedings does not make the order which may be passed
therein appealable .................. "
Jn Gaja v. Mohd. Fantkh: AIR 1961 All 561) the observation
E of J. D. Sharma, J. is as follows:
" ......... An appeal is a substantive right and not a mere
matter of procedure _and unless it is conferred by Order
43, Civil P. C., it cannot be inferred by implication from
Section 141 of the Code. Order 43 does not provide/or an
F appeal from an order dismissing for default an application
for restoration of an application under Order 9, Rules 9
and 13, Civil P. C. No appeal therefore lay from the order
of the Munsiff dismissing the application dated 3'·J
September, 1956." No doubt, this case decided by the
G Allahabad High Court was one of dismissal of an
application for restoration of an application for setting
aside the ex parte decree. Jn such matters also, even though
Section 141, Civil P. C. would govern the procedure, that
would not necessarily mean that a right of appeal is
available to the aggrieved party.
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 759
[ASHOK BHUSHAN, J. ]
5. Considering the scheme of the Land Acquisition Act it does A
not appear to be the intention of the legislature to confer a
right on the party aggrieved by an order of dismissal of a
petition for restoration of a proceeding to file an appeal from
such an order. As has already been said, the enabling
provision, namely Section 141, Civil P. C, which has relation B
only to procedural matters, cannot be stretched to govern
substantive right of appeal which has been or has to be
specifically conferred by the special statute like the Land
Acquisition Act, as in the present case. I am, therefore, of the
view that an appeal does not lie from an order dismissing an
application for restoration of a reference under the Land C
Acquisition Act dismissed for default and therefore the revision
is competent. "
54. Similar view was taken by the Rajasthan High Court in Kami
Dan Si11gli vs. Ram Chandra a11d Ors., AIR 2003 Raj 98. An appeal
under Order XLIII Rule l(d) C.P.C. read with Order IX Rule 9 C.P.C. D
was directed against the order dated 19 .12.1997 passed by the Additional
District Judge whereby application filed by the plaintiff-appellant for
restoration of suit was dismissed for want of payment of process fee.
The suit was dismissed for default of plaintiff on 2.3 .1994 and application
was filed on 31.3.1994 praying for restoration of original suit which was
dismissed on account of non-appearance of plaintiff. On second E
application notices for restoration of application were issued on
defendants. Appellant failed to pay process fee and restoration application
was dismissed on 19.12.1997. The High Court held that in the present
case the application was not under Rule 9 of Order IX. C.P.C. No appeal
lies under Order XLIII Rule l(c)or (d) CP.C. following was held in F
·paragraphs 12 and 13:
"J 2. Jn the instant case, indisputedly the order impugned came
to be passed by the Trial Court on the application seeking
restoration of original suit under Rule 4 of Order 9, C.P.C.
and not under Rule 9 of Order 9, C.P.C. and therefore, no G
appeal lies under Order 43, Rule 1(c) or (d} or any other
clause of Rule 1, Order 43, C.P.C. but the application under
Order 9, Rule 4 read with Section 141. C.P.C. for restoration
of misc. application is maintainable.
H
760 SUPREME COURT REPORTS [2017] 8 S.C.R.
A 13. Right of appeal is the creature of a statute. It is for the
Legislature to decide what type of order should be made
appeal able. Hon 'ble Supreme Court in Gujarat Agro
Industries Co. Ltd. v. Municipal Corporation of the City of
Ahmedabad:(1999) 4 SCC 468 : (AIR 1999 SC 1818) held
that if the statute does not create any right of appeal, no
B
appeal can be filed. There is a clear distinction between a
suit and an appeal. While every person has an inherent right
to bring a suit of a civil nature unless the suit is barred by
statute, however, in regard to an appeal, the position is quite
opposite. The right to appeal inheres in no one and therefore,
c for maintainability of an appeal there must be authority of
law. Having considered the present case in the light of the
observations made by the Hon 'ble Supreme Court and the
provisions of Order 43, Rule 1, Clause (a) to (w) noticed above,
I am of the considered opinion that against the order
impugned, no appeal is provided under Order 43, Rule 1(a)
D
to (w) and, therefore, present appeal is not maintainable. "
55. Madras High Court in a case, namely, Swamambai vs. K.
Tlzambal, decided on 31.10.1990 also has taken the same view that
dismissal of an application of restoration praying for setting aside the
order dismissing in default an application is not appealable.
E
56. Calcutta High Court in Sri Suslril Kumar De a11d Anr. vs.
Smt. Clzltaya De a11d A11r., (2004) CALCUTTA 197 (HC) decided on
08.08.2003 again took the same view after referring to certain earlier
cases and Full Bench in Natlzu Prasad (supra).
F 57. The application filed by Ranjit Singh, predecessor-in-interest
of the appellants under Order IX Rule 13 C.P.C. was dismissed on
19.10.2001 in default. When the appellants filed application dated
21.08.2002 to recall the order dated 19.10.2001, theirapplication in the
nature of proceeding seeking recall of an order dismissing the application,
the miscellaneous proceedings dated 21.08.2002 were akin to application
G under Order IX Rule 9 C.P.C. seeking recall of order dismissing their
application under Order IX Rule 13 C.P.C .. The order dated 23.12.2005
rejecting their application dated 21.08.2002 on merit by the Trial Court
was thus clearly referable to order passed rejecting their application
under Order IX Rule 9. Hence, against such order the appeal was clearly
H
JASWANT SINGH & ORS. v. PARKASH KAUR & ANR 761
[ASHOK BHUSHAN, J. ]
maintainable under Order XLlll Rule l(c) C.P.C. In the case of K.P. A
Jayakumar vs. K. Ravindran and Ors., AIR 2004 Ker 209, the Kerala
High Court has taken correct view of the matter in which case application
for restoration of insolvency proceeding was treated to be under Order
IX and the appeal was held to be maintainable under Order XLIII Rule
1(c) C.P.C. In the present case also the application filed by the appellants B
dated 21.08.2002 was an application referable to Order IX Rule 9 C.P.C.
The application filed by the appellants was registered in miscellaneous
proceedings and as per Section 141, provisions of Order IX were
applicable for the application dated 21.08.2002.
58. There cannot be any dispute to the view taken by the different
High Courts in various judgments as noticed above that an appeal is a C
substantive right and not a mere matter of procedure and unless the
right to appeal is specifically conferred it cannot be inferred under Section
-141 of the C.P.C. The present is not a case where we are reading the
right of appeal from Section 141 CPC. Section 141 now expressly provides
that Order IX is applicable to all proceedings in civil jurisdiction. When D
Order IX is made applicable to the proceedings in the nature of application
seeking recall of the order dismissing the application under Order IX
Rule 13 C.P.C. the order passed by the civil court rejecting such
application is clearly referable to Order IX Rule 9 C.P.C. and an order
which is clearly referable to Order IX Rule 9 C.P.C. shall also be
appealable by virtue of Order XLlll Rule l(c) C.P.C. Rejection of E
application for restoration which is referable to Order IX, we cannot
refuse to treat an order rejecting application under Order IX Rule 9
C.P.C. for the purposes of Order XLlll Rule 1(c) C.P.C. The Full Bench
judgment of Madhya Pradesh High Court in so far as it answered question
No. I as framed in paragraph 1 of the judgment lays down the correct F
law. However, the view of the Full Bench that when application under
Order IX Rule 9 C.P.C. for restoration of suit is rejected, the second
application for restoration of the original application although falls under
·the purview of the Order IX Rule 9 C.P.C. read with Section 141, rejection
of the application does not fall under Order XLlll Rule l(c) C.P.C., to
the above extent, the view of the Full Bench cannot be approved. When G
the second application as held by Full Bench falls under Order IX Rule
9 C.P.C., hence the right of appeal shall also accrue when such application
is rejected. In view of the above discussion, we are of the considered
opinion that the appeal filed by the appellants against order dated
H
762 SUPREME COURT REPORTS [2017] 8 S.C.R.
A 23.12.2005 was clearly maintainable and the High Court erred in holding
that such appeal was not maintainable.
59. Now, one more aspect which we need to consider is, whether
the application filed on 21.08.2002 to recall the order dated 19.10.2001
by which order application under Order IX Rule 13 C.P.C. was dismissed
B for default deserved to be rejected as barred by time. In the application,
the appellants have come up with the case that the defendant Ranjit
Singh was ill and he died on 20.11.200 I and appellants who were legal
heirs of Ranjit Singh had no knowledge about the pendency of the
application filed under Order IX Rule 13 C.P.C. The Trial Court while
hearing the said application framed only issues in paragraph 3 which are
C to the following effect:
"3. On the basis of pleadings of the parties, the
following issues were framed:
1. Whether there are sufficient grounds for restoration
D of application UIO 9 Rule 13 CPC as alleged ?
2. Relief"
60. However, while proceeding to examine such issue the Trial
Court also noted the argument of the plaintiff that application filed by the
appellants was barred by time. It was contended that limitation for filing
E such application was 30 days. Reliance was placed on Article 122 of
Limitation Act, 1963. Without any discussion, the Trial Court accepted
the submission and held the application as barred by time. The Appellate
Court has reversed the view taken by the Trial Court and held that
application filed by the appellants was within time. The Appellate Court
F held that Article 122 of Limitation Act shall not govern application filed
by the appellants rather it shall govern by Article 137 of the Limitation
Act.
61. The High court in its judgment also touched the question of
limitation. The High Court held that application for restoration could be
G under Order IX and the limitation for restoration is 30 days from the
date of dismissal as per Article 122. For the purposes of this case, it is
not necessary for us to enter into the question as to whether limitation
for application filed by the appellants on 21.08.2002 was 30 days or 3
years. Even if it is assumed that limitation for filing application was only
30 days, the appellants in their application itself have already given
H
JASWANT SINGH & ORS. v. PAR.KASH KAUR & ANR 763
[ASHOK BHUSHAN, J. ]
sufficient explanation for filing the application on 21.08.2002. They were A
not aware of the application dated 20.07.1999 filed by Ranjit singh
deceased who could not recover from illness and died on 20.11.200 I.
The Trial Court has held that reasons given by the appellants were not
sufficient which finding has been reversed by the Appellate Court. In
paragraphs 25 and 26 of the judgment of the Appellate Court following B
has been held:
"25. Keeping in view all these facts and circumstances, I am
of the opinion that the statement ofJaswant Singh Jn the given
facts and circumstances should be given due weight age. The
death of Ranjit Singh within a short span when his application
was dismissed give credibility to the statement of Jaswant C
Singh. The parties are villagers and it is not supposed that
they will keep the medical record and even take the patient
for proper medical treatment to a qualified doctor or a hospital.
26. Jn view of these facts and circumstances, I am of the
considered opinion that the Ld. Trial Court has erred in D
· holding that there was no sufficient ground for restoration of
application. It is correct that evidence in the main application
was not produced despite granting of several opportunity,
but the Ld. Trial Court has not gone for concluding the
evidence of the applicant by order rather dismissed the same
as the counsel for the applicant pleaded 'no instructions'. " E
62. Section 5 of the Limitation Act was attracted in application
filed for restoration. The Appellate Court having found sufficient C\luse
for restoration, it is just and equitable to conclude that there was sufficient
cause for condonation of delay, if any. Thus, the rejection of the application
of the appellants on the above ground also cannot be sustained. F
63. In view of the foregoing discussion the judgment of the High
Court is set aside. The order of the Appellate Court shall stand revived
and Trial Court shall proceed as directed by the Appellate Court vide its
judgment dated 30.01.2009. Sufficient time having been elapsed, we
direct the Trial Court to decide the application under Order IX Rule 13 G
·c.P.C. within three months from the date copy of this order is produced
before the Trial Court.
64. The appeal is allowed accordingly.
Ankit Gyan Appeal allowed.
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