Hazi Rustam Ali v. Emamnuddin Khan And Others Opposite Parties., Calcutta High Court, Judgment, Law, casemine.com

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Case Number

C.R No. 268 of 1979

Attorney(S)

Asis Kumar Sannyal
Asis Kumar Bagchi
for Opposite Party No. 1

Judges

Jyotirmoyee Nag, J.

Acts

Order 9, Rule 9 of the C.P.C read with Section 141, Civil P.C
provisions of Section 151 of the Code of Civil Procedure
Section 141 of the amended Civil Procedure Code,
Order 21, Rule 19 of the Code of Civil Procedure
Order 9, Rule 9 of the Code of Civil Procedure
Order 43. Rule 1(c) of the Civil Procedure Code
Section 151 of the Code of Civil Procedure.5.
Section 141 of the Code of Civil Procedure
Section 151 of the Code of Civil Procedure
ORDER 9 RULE 9 CIVIL PROCEDURE CODE
provisions of Order 9, Rule 9
Order 9, Rule 9, C.P.C
Order 43, Rule 1(c)
Order 41, Rule 1(c).
Section 151, C.P.C
Order 9, Rule 13
Order 9, Rule 9,
Order 9, Rule

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Smart Summary

Factual and Procedural Background

The opposite parties (plaintiffs) filed O.C. Suit No. 57 of 1971 in the Court of the Second Munsif, Malda, seeking declaration of title and recovery of possession of 89 decimals of danga land (Dag No. 359, Mouza Narayanpur, P.S. Kalichack, Dist. Malda). The suit was fixed for peremptory hearing on 21 January 1977; the defendants were absent and the suit was decreed ex parte. On 31 January 1977 the defendants (petitioners) filed an application under Order 9, Rule 13, C.P.C. for restoration of the suit (registered as Misc. Case No. 20 of 1977). When the Misc. Case was called on 9 September 1978, the defendants were again absent and the Misc. Case was dismissed for default by Order No. 64 dated 9 September 1978 (with costs to the plaintiff). On the same day the petitioners filed an application under Section 151, C.P.C. seeking restoration of the application dismissed for default, explaining that they had arrived at court at 11:30 A.M. while the Misc. Case had been dismissed at 11:55 A.M. The learned Munsif held that the dismissal was effectively a decree and that specific statutory provisions governed such dismissals; consequently, a Section 151 petition could not be entertained. The petitioners' counsel drew attention to AIR 1975 Cal 80 (Full Bench), but the learned Munsif found that decision inapplicable to the present facts.

Legal Issues Presented

Whether an application under Section 151, C.P.C. can be invoked for restoration of a Misc. Case dismissed for default where specific remedies under the Code (notably Order 9, Rule 9 read with Section 141, and appeal provisions) are available.
Whether the Full Bench decision reported in AIR 1975 Cal 80 (relied upon by petitioners) is applicable to the facts of this case.
What is the effect of the amendment to Section 141, C.P.C. (adding an explanation) on the availability of remedies for restoration of proceedings dismissed under Order 9.

Arguments of the Parties

Petitioners' Arguments (Mr. Asis Kumar Sannyal)

Relied on the principles laid down in AIR 1975 Cal 80 (Full Bench) to contend that the learned Munsif erred in holding that dismissal of the Misc. Case for default was not a matter for relief under Section 151, C.P.C.
Submitted that the learned Munsif misconstrued and misled as to the applicability of the AIR 1975 Cal 80 decision to the present facts.

Opposite Parties' Arguments (Mr. Bagchi)

Contended that the decision relied upon by petitioners does not apply because the present situation is governed by the amended Section 141 and the provisions of Order 9 (particularly Order 9, Rule 9 and Order 9, Rule 13), making the proper remedy one under those provisions rather than Section 151.
Argued that Order 9, Rule 9 is an independent miscellaneous proceeding (registered as a Misc. Judicial case) and, after the amendment to Section 141, proceedings under Order 9 fall within Section 141; thus the remedy to restore an application dismissed for default lies under Order 9, Rule 9 and/or by appeal under Order 43, Rule 1(c) (and not by Section 151).
Submitted that Section 151 is an extraordinary provision to be invoked only when no adequate statutory remedy is available; since Code amendments provide specific remedies, Section 151 should not be resorted to.
Relied on AIR 1976 Madhya Pradesh 136 (Full Bench) to support the position that dismissal for default of an application under Order 9 attracts Order 9, Rule 9 and the appeal route under Order 43, Rule 1(c).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AIR 1975 Cal 80 (Full Bench)	Authorities relied on by petitioners to justify invoking Section 151 for restoration (petitioners contended it supported their position).	The court and the learned Munsif found that the decision was not applicable to the facts and circumstances of this case; the petitioners' reliance on it was rejected.
AIR 1976 Madhya Pradesh 136 (Full Bench)	Held that proceedings under Order 9, Rule 9 are proceedings in a court of civil jurisdiction within Section 141; Order 9, Rule 9 is an independent application and appeal lies under Order 43, Rule 1(c) from orders dismissing such applications (including dismissal for default).	The court accepted the principles relied upon from this decision to support the view that remedies under Order 9, Rule 9 and Order 43, Rule 1(c) (read with Section 141) are available and thus Section 151 is not the proper remedy.

Court's Reasoning and Analysis

The court reviewed the procedural history and the parties' submissions. It noted the learned Munsif's initial position that the dismissal of the Misc. Case for default amounted to a decree and that specific Code provisions governed post-dismissal relief; accordingly the learned Munsif had held that Section 151 could not be entertained. The petitioners relied on AIR 1975 Cal 80 (FB) to support their invocation of Section 151, but the learned Munsif and the court found that decision inapplicable on the facts.

The court analysed the submissions of the opposite party (Mr. Bagchi), who relied upon the amendment to Section 141 and the Full Bench decision reported in AIR 1976 Madhya Pradesh 136 (FB). That authority, as described in the opinion, establishes that:

An application under Order 9, Rule 9 is an independent miscellaneous proceeding and is a proceeding in a civil court within the meaning of Section 141.
Dismissal for default of an application under Order 9, Rule 13 (an application to set aside ex parte decree) attracts the remedies available under Order 9, Rule 9 and an appeal under Order 43, Rule 1(c).

Given the amended Section 141 and the availability of specific statutory remedies (restoration under Order 9, Rule 9 and appeal under Order 43, Rule 1(c)), the court reasoned that Section 151—being a residuary and extraordinary provision—was not available to the petitioners where adequate Code remedies existed. The court found substance in these contentions and upheld them.

Holding and Implications

Holding: In the result, Rule discharged.

Implications:

The petition (rule) challenging Order No. 68 dated 25 November 1978 by the learned Munsif is dismissed (the court discharged the rule).
The court accepted that the proper course for restoration of an application dismissed for default under Order 9, Rule 13 is to proceed under Order 9, Rule 9 read with the amended Section 141, or to prefer an appeal under Order 43, Rule 1(c), rather than seek relief under Section 151, C.P.C.
No order as to costs was made by the court.
The opinion does not purport to lay down a new precedent beyond applying the principles discussed (it applies existing authorities and statutory amendment to the facts); the decision's direct effect is limited to the parties and the procedural question addressed.

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Hazi Rustam Ali v. Emamnuddin Khan And Others Opposite Parties.

1. This Rule is directed against Order No. 68 dated 25th November, 1978 in Misc. Case No. 20 of 1977 by the learned Munsif, 2nd Court, Malda. The opposite parties-plaintiffs filed suit being O.C Suit No. 57 of 1971 in the Court of the Second Munsif, Malda praying for declaration of the title in respect of 89 decimals of danga land in Dag No. 359 in mouza Narayanpur. P.S Kalichack, District-Malda and for recovery of possession by evicting the defendant-petitioners. The suit was fixed for peremptory hearing on the 21st of January, 1977. The defendants being absent on that day, the suit was decreed ex parte. Thereafter, on the 31st of January, 1977 the petitioners filed an application under Order 9, R. 13 of the Code of Civil Procedure for restoration of the suit. This application was registered as Misc. Case No. 20 of 1977. But when this Misc. case came up for hearing on the 9th of September, 1978, the defendants were again absent and hence it was dismissed with costs to the plaintiff by Order No. 64 dated the 9th of September, 1978. On the 9th of September, 1978, the petitioners (defendants) filed an application under Section 151 of the Code of Civil Procedure for restoration of the application under Section 151, C.P.C dismissed for default. The explanation given was that they had come to court at 11-30 A.M But the said Misc. case was dismissed for default at 11-55 a.m The learned Munsif was of the view that the dismissal of the case is nothing but a decree and there are specific provisions for taking steps in a case of dismissal. Hence a petition under Section 151, C.P.C cannot be entertained in the instant case. The petitioner's lawyer had drawn the attention of the learned Munsif to the case reported in AIR 1975 Cal 80 (FB). But the learned Munsif was of the view that, that case was not applicable in the facts and circumstances of the present case and hence he rejected the application as already stated.

2. On behalf of the petitioners Mr. Asis Kumar Sannyal has laid stress upon the principles laid down in the case reported in AIR 1975 Cal 80 (FB). According to him the learned Munsif erred in finding that the dismissal of the Misc. case for default is not decree under that order and held that S. 151 of the Code of Civil Procedure did not apply for restoration of the Misc. case and moreover, it is submitted by Mr. Asis Sannyal that the learned Munsif has misled and misconstrued the decision stated on behalf of the petitioners reported in AIR 1975 Cal 80 (FB).

3. On the other hand, Mr. Bagchi, for the opp. parties has submitted that decision does not apply to the facts of the present case under Section 141 of the amended Civil Procedure Code, the application for restoration could have been made. But it is wrong to submit that the aforesaid decision applied to the facts of the present case inasmuch as that case related under Order 21, Rule 19 of the Code of Civil Procedure and it is not correct to say that the appeal is preferred from dismissal of an application under Order 9, Rule 13. The relief available to him in appeal is illusory because the appellate Court would have no materials on record to render a decision on the sufficiency of the cause shown to give relief to him. That the provisions of Section 151 of the Code of Civil Procedure can only be invoked in exceptional circumstances is not doubted when other remedies are available to the petitioner under the Code of Civil Procedure the relief under Section 151 cannot be had recourse to unless those other remedies are exhausted. Moreover when the Code of Civil Procedure by its amendment of Section 141 by adding an explanation has brought the proceeding under O. 9 on par with a suit the procedure laid down under O. 9, R. 9 should be followed.

4. Mr. Bagchi appearing on behalf of the opp. party has submitted that there was some doubt previously and that doubt has been resolved by the amendment of Section 141 of the Code of Civil Procedure by adding the explanation. Therefore, when the application under Order 9, Rule 13 was dismissed for default. The petitioner should make an application for setting aside the order of dismissal for default by making an application under Order 9, Rule 9, but not under Section 151 of the Code of Civil Procedure.

5. In this connection, Mr. Bagchi has relied upon a decision reported in AIR 1976 Madh Pra 136 (FB). It 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 of civil jurisdiction within Section 141. An application under 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 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 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, 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 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.

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 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.

7. In the result, this Rule is discharged.

8. There will be no order for costs.

Rule discharged.

Hazi Rustam Ali v. Emamnuddin Khan And Others Opposite Parties.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (Mr. Asis Kumar Sannyal)

Opposite Parties' Arguments (Mr. Bagchi)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Hazi Rustam Ali v. Emamnuddin Khan And Others Opposite Parties.

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