This is a guest post by the very bright young judge Harshit Sharma (https://www.linkedin.com/in/harshit-sharma-hs30/) on a very interesting topic of civil law.

Introduction

It is a normal thing in civil courts that civil suits get dismissed for default under Order 9 Rule 8^[i] of Civil Procedure Code (CPC) when the plaintiff doesn’t appear when the suit is called on for hearing. Once the suit gets dismissed for default the remedy plaintiff has is to file a restoration application of the suit for setting aside dismissal under Order 9 Rule 9, showing sufficient cause for his previous non-appearance when the suit was called on for hearing. Apart from this he can also file an appeal under Section 104^[ii] read with Order 43 Rule 1(c)^[iii] of CPC. On certain occasions an interesting situation arises if this restoration application also gets dismissed for default meaning that applicant/plaintiff remained absent when the application under O. 9 R. 9 was called on for hearing, then what is the remedy available with the applicant petitioner/plaintiff. Through the present article author tried to discuss the remedies applicant/plaintiff have in such a situation. 

Early Position

Section 141 of the Code of Civil Procedure states that: “The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction.”

In Venkatanarasimha Ruo v. Surya-narayana^[iv], an application to restore a suit had been dismissed for default and a subsequent petition was filed to set aside that dismissal and it was allowed by the Court. The only question which arose before the High Court was whether Order 9 applied only to suits or whether by reason of Section 141 it also applied to applications made under Order 9 itself. The Judge observed with reference to an earlier decision^[v] as follows:  

“What was held to be included were original matters in the nature of suits, but this statement is not exhaustive. It is argued that an application under Order 9 is not an original matter in the nature of a suit. It certainly is not a petition in a suit, for the suit is no longer on the file. It relates to a question quite independent of the suit and one which has to be determined on evidence as to matters which would be quite irrelevant to the suit. In this sense, it seems to me to come within the meaning of Privy Council’s observations that Section 647 includes original matters in the nature of suits. So the Division Bench of the Madras High Court ruled that Order 9 would not apply to applications of the nature of second application and that the second application is not an original proceeding.

In Salar Beg v. Kotayya^[vi], , the question directly arose before the Madras High Court as to where an application under Order 9 Rule 9 CPC was itself dismissed for default, whether another application to restore the first application dismissed for default was competent. The Judges held that such a second application was competent but not under Order 9 Rule 9.

In Perivakarupa Thevar v. Vellai Thevar^[vii], the Judges of the Division Bench observed as follows: 

“In our opinion, an application under Order 9. Rule 13 stands on the same footing as one under Order 9 Rule 9. A right to have an ex parte order set aside is not procedural but substantive in character. Further Section 141, CPC must be read subject to special procedure prescribed for a proceeding under a particular enactment. “We have already pointed out that in terms the provisions of Order 9, Rule 13 apply only to suits. And it is well settled that Section 141 CPC does not apply to execution proceedings. There is also ample authority interpreting the word ‘proceeding’ as relating to original matters in the nature of suit and an application under O 9 R 9 is not an original matter in the nature of the suit.”

Whether Appeal is maintainable from restoration application dismissed for default

Section 104 of CPC enumerates the orders from which the appeal lies. Order 43 provides for “appeals from order”. Order 43 Rule 1 (c) & (d) which are relevant for the present case are quoted as below:-

“1. Appeal from orders.- An appeal shall lie from following orders under the provisions of Section 104, 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;

In Mohd. Farkhuida Ali v. Khamrunnissa^[viii],  it was held that no appeal was provided for from an order in a second application that is, an order dismissing an application which was for restoration of an application for setting aside the dismissal of a suit or an ex parte decree. To a similar effect is the decision in Gaja v. Mohd. Faruk^[ix] wherein it was held that Order 13 did not provide for an appeal from an order dismissing for default an application for restoration of an application under Order 9 Rule 9 and Order 9, Rule 13, CPC. 

In Brijmohan vs. Raghoba^[x], it has been held by a Division Bench of the Nagpur Judicial Commissioner’s Court that no appeal lies from an order rejecting an application to set aside the dismissal for default of an application for restoration of a suit dismissed in default, and that the dismissal of such an application can be set aside under section 151. The learned Judges based this conclusion on the reasoning that Section 104(1) and O. 43 R. 1 CPC did not provide for an appeal against an order of dismissal for default of an application for restoration of a suit under O. 9 R. 9; that the right of appeal being a substantive right could not be inferred by the application of Section 141 which only made the procedure in the Code applicable, in so far as it could be, in all proceedings in any court of civil jurisdiction and did not give any substantive right; and that, therefore, an order of dismissal for default of an application for restoration of a suit under O. 9 R. 9 was not applicable under O. 43 R. 1(c). On the same reasoning the learned Judges treating the remedy under O. 9 R. 9 as a substantive one held that it was not available by resorting to Section 141 CPC., for setting aside the dismissal in default of an application for restoration of a suit under O. 9 R. 9. This decision was followed by a Single Judge of the Nagpur High Court in Prem Shankar vs. Rampyarelal^[xi].

In Komalchand Beniprasad vs Pooranchand Moolchand^[xii] it was held that the remedy under O. 9 R. 9 CPC is not a matter of procedure. The rule gives a substantive right of applying for restoration of a suit dismissed for default and this right cannot be conferred by Section 141 when it is made applicable to proceedings initiated on an application for setting aside the dismissal in default of an application for restoration of a suit under O. 9 R. 9 CPC. Section 141 deals only with procedure and not with any substantive right. It does no more than provide the procedure to be adopted by Courts of Civil jurisdiction is dealing with matters a before them. It does not provide that the Code is to be applied in its entirety to such proceedings so as to confer the right of appeal or any other substantive right in those proceedings. O. 9 R. 9 cannot, therefore, be invoked for setting aside the dismissal in default of an application for restoration of a suit under that rule. On the same principle an order dismissing in default an application for restoration of a suit under: O. 9 R. 9 is not open to appeal under O. 43 R. 1 (c).

Use of Inherent Powers

In Chandrika Singh v. Parsidh Narayan Singh, also it was held that an application to restore an application which had been dismissed for default under Order 9 Rule 4, CPC was maintainable under Section 151 CPC. In Madan Lall v. T. M. Bank Ltd.^[xiii], a Full Bench of the Assam High Court held that, where an application under Order 9, Rule 13, CPC, had itself been dismissed for default, then in so far as the Court dismissing the application for default is concerned, there may be remedy available by application under 151 CPC. In Poorna Chand v. Komalchand, , the Madhya Pradesh High Court held that the dismissal for default of an application for restoration of a suit under Order 9 Rule 9 CPC can be set aside in exercise of the Inherent powers of the Court under Section 151, CPC. They also held that the power of the Court to set aside was not fettered by any rule of limitation. Bobde J. in Goverdhan vs. Hemrajsingh and others^[xiv] where the question was as to under what provision of the CPC an application for restoration of the suit dismissed in default lie. The said suit had been stayed by an order passed u/s 10 of the Civil Procedure Code. Bobde J. opined that Order 9 was inapplicable and that the Court could restore the suit in exercise of its inherent powers.

Correct Law on the point

In Nathu Prasad vs Singhai Kapurchand^[xv] the full bench of MP High Court held that an application under Order 9 Rule 9 CPC is a proceeding in a Court of Civil jurisdiction. So the procedure provided in regard to suits can be made applicable to a proceeding under Order 9 Rule 9. There is no justification to read any such restrictive words in Section 141. The section is in general terms and the expression “as far as it can be made applicable” provides for the extent to which the section can be applied to a civil proceeding other than a suit. The expression “all proceedings” is of a very wide connotation and to restrict it to a proceeding, which is original in nature and wholly independent of a suit will be doing violence to the language of the section. The object and purpose of Section 141 is that for economy of words, it was unnecessary to repeat the whole of the procedure in providing for procedure for an application or any other proceeding original or ancillary.

When a suit, which is dismissed for non-appearance of the plaintiff can be restored on satisfying the Court that the plaintiff was prevented by some sufficient cause from appearing before the Court, there is no reason why, when an application under Order 9 Rule 9, is likewise dismissed for non-appearance of the applicant, the latter should be denied an opportunity to satisfy the Court that he was prevented by reason of sufficient cause from appearing before the Court when this application was called on for hearing. 

In Ravukumara Raj Appa Row vs Veera Raghava Raya Choudary^[xvi] it was held that, if there were no provision like Order 9 Rule 9, CPC, the plaintiff would suffer irreparable loss by dismissal of his suit even if he had sufficient cause for his non-appearance, such as contemplated in Order 9 Rule 9 CPC. If there were no provision in law for a second application being made by a plaintiff regarding dismissal of an order under Order 9 Rule 9, CPC even if he had sufficient cause for non-appearance when his petition under Order 9 Rule 9 CPC was called, he would suffer irreparable loss in spite of the fact that provision under Order 9 Rule 9 CPC existed and the loss to him would be the same as if Order 9 Rule 9 CPC had not existed and as if he had not made any (first) application under Order 9 Rule 9 CPC at all, so, it would appear reasonable to infer that the Legislature, which passed the Act V of 1908, intended that such loss should not result to a litigant who, for sufficient cause, could not appear when his application under Order 9 Rule 9 CPC was called and against whom the Court had decided.

Dismissal for Default amounts to Rejecting the application

Full Bench of Madhya Pradesh High Court in Nathu Prasad case had occasion to consider the words “rejecting an application” as contained in Order 43 Rule 1(c) CPC. After considering the earlier judgments of the different High Courts the Full Bench opined as follows:-

“…….In our opinion, there is nothing in the wording of Order 43 Rule 1 (c), CPC 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.”

Supreme Court in Jaswant Singh & Ors. vs Parkash Kaur & Anr.^[xvii], while affirming the view of full bench of MP High Court in Nathu Prasad vs Singhai Kapurchand^[xviii], held that when application under Order 9 Rule 9 CPC for restoration of suit is rejected, the second application for restoration of the original application falls under the purview of the Order 9 Rule 9 CPC read with Section 141, and rejection of the application does fall under Order 43 Rule 1(c) CPC. When the second application falls under Order 9 Rule 9 C.P.C., hence the right of appeal shall also accrue when such application is rejected.

Limitation period to file the second application for restoration

An application for restoration could be filed under Order 9 and the limitation for restoration is 30 days from the date of dismissal as per Article 122 of Limitation Act. But what is the period of limitation for an application for restoration of an application filed under Order 9 Rule 9 which had been dismissed for default?

In Brijmohan v. Raghoba^[xix], the Court of the Judicial Commissioner had held that to such an application the provisions of Rule 9 of Order 9 of the Code of Civil Procedure were not applicable and that such an application could be entertained under the inherent powers of the Court under Section 151 of the Code of Civil Procedure. This view was followed by Robde, J. in Premshankar v. Rampyarelal^[xx], The application, being under the inherent powers under Section 151 of the Code of Civil Procedure, was not governed by Articles of the Limitation Act, though the party invoking the jurisdiction of the Court under Section 151 of the Code must be diligent and not guilty of laches.

In Komalchand Beniprasad vs Pooranchand Moolchand it was stated that since the dismissal of such an application for default was in the exercise of the inherent powers of the Court. That being so, the dismissal can be set aside by the exercise of the same inherent powers. When the dismissal in default of an application for the restoration of a suit under O. 9, R.9 CPC can be set aside by resort to Section 151 CPC, then there is no question of any limitation for an application made to invoke the inherent powers of the Court. Section 151 does not deal with any applications nor does it lay down procedure for any application. It is a provision recognising the inherent power of the Court to act ex debito justitiae. An application invoking this power is not one which a party is required to make under any provisions of the Code for setting in motion any machinery of the Court. Therefore it is not governed by Articles of the Limitation Act. 

As has been held by the Supreme Court in Sha Mulchand and Co. Ltd. (In Liquidation) vs Jawahar Mills Ltd., Article 137 governs only the applications under the CPC and has to be read as if the words ”under the Code” were added in the first column of the Article. It follows therefore that the application contemplated by Article 137 is one which party has to make for the machinery of the Court to be set in motion under the provisions of the Code and the application has to be made within three years from the date when the right to apply accrues.

As an application made to invoke the inherent powers of the Court under Section 151 is not an application under the Code which a party is required to make, Article 137 has no applicability. That apart, reading Articles 122 and 123 together it is clear that Article 122 prescribes limitation for an application to set aside the dismissal for default of a suit and not for an application to set aside the dismissal for default of an application for restoration of a suit under O. 9, R. 9 CPC. Though there is no limitation for invoking the inherent powers of the court u/s 151, the party invoking that jurisdiction must be diligent and not guilty of latches.

Nature of Application under Order 9 Rule 9

An application under Order 9 Rule 9, CPC, is not an interlocutory application. It is different from an application made in a pending suit. By its nature, an application under Order 9 Rule 9, is an independent application and is registered as an independent Miscellaneous Judicial case.

Conclusion

I may now sum up the conclusions I have reached on the basis of above discussion:

• When application (‘A’) under Order 9, Rule 9, CPC, is itself dismissed for default of the plaintiff/petitioner’s appearance, an application (‘B’) lies under Order 9, Rule 9, read with Section 141 of the same Code, for restoration of the application (‘A’). In order to succeed in this proceeding (‘B’), the petitioner has to satisfy the Court that he was prevented by sufficient cause from appearing on the date when the application (‘A’) was called on for hearing.
• The order of dismissal for default of the application (‘A’) is appealable under Clause (c) of Rule 1 Order 43 CPC.
• Both the above remedies, i.e., application under Order 9, Rule 9, and appeal under Order 43, Rule 1 (c) are concurrent. They can be resorted to simultaneously. Neither excludes the other. The scope of each of the above proceedings is, however, different.
• When an appeal (second remedy) is decided, one way or the other, the order of dismissal for default appealed from which appeal was preferred 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 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, CPC.

Authored by Harshit Sharma, Civil Judge cum Judicial Magistrate/Doctoral Candidate PhD at NLUJ.

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^[i] https://www.writinglaw.com/order-9-rule-8-cpc/

^[ii] https://lawrato.com/indian-kanoon/cpc/section-104

^[iii] https://lawrato.com/indian-kanoon/cpc/order-43

^[iv] ATR 1926 Mad 325

^[v] (1895) ILR 17 All 106 (PC)

^[vi] AIR 1926 Mad 654

^[vii] AIR 1961 Mad 338

^[viii] (1963) I Andh WR 114

^[ix] AIR 1961 All 561

^[x] 28 N. L. R. 83

^[xi] ILR 1944 Nag. 558

^[xii] AIR 1970 MP 199

^[xiii] AIR 1954 Assam 1

^[xiv] ILR 1944 Nag. 408

^[xv] AIR 1976 MP 136

^[xvi] AIR 1966 AP 268

^[xvii] Civil Appeal No.9409 of 2017

^[xviii] AIR 1976 MP 136

^[xix] (AIR 1932 Nag 101)

^[xx] (AIR 1944 Nag 317)