This petition is directed against -. an order of the Additional Sub-Judge, Tripura dated 3-10-64, by which Petitioners' applica tion under Or. 9 R. 9 and under section 151, C.P.C. for restoration of an application for setting aside an ex parte decree which had been dismissed in default, was rejected.
(2) The facts necessary to appreciate the points which have to be considered are these: The plaintiffs, who are the opposite party in this Court, filed T. S. No. 95 of 1962 against the petitioners for partition of some Ejmali properties. That suit was decreed ex parte on 16-9-63. An application under Or. 9 R. 13 for setting aside the ex parte decree was filed on 14-10-63. This application was registered as Misc. Case No. 20 of 1963. The application was fixed for hearing on 6-4-64. On that date the case was called. The applicants were absent and no one appeared on their behalf. The application was thus dismissed for default of appearance. The petitioners then, applied- under Or. 9 R. 9 and section 151 C.P.C. for obtain ing restoration of their Miscellaneous Applica tion No. 20 of 1963 by which they had prayed for the setting aside of the ex parte decree. The learned Sub-Judge did not decide the ap plication on its merits but dismissed it in limine. He observed that the provisions of Or. 9 R. 9 and section 151 C.P.C. do not apply to application under Or. 9 R. 13 of the Code of Civil Procedure. It appears that the learn ed Sub-Judge seems to have been of the view that as an order rejecting the application for C.P.C., the Court has no jurisdiction to restore the application.
(3) Being aggrieved by this order of learned Sub-Judge the petitioners have come to this Court in revision.
(4) At the time of arguments, the opposite party did not appear despite service, therefore I heard the learned Counsel for the peti tioners.
(5) The first important question that arises for consideration is whether Or. 9 R. 9 is applicable in this case. The learned counsel for the petitioners frankly conceded that Or. 9 R. 9 is not applicable in this case. I also find that he has rightly conceded on this point. The decisions are clear that provisions of Or. 9 R. 9 did not apply to applications under Or. 9 R. 13 of the C.P.C. On this point, I may refer the case Nathuni Singh v. Naipal Singh AIR 1958 Pat 107. In this case Chaudhury J. observed as follows:
"Provisions of Or. 9 R. 9 do not apply to application under Or. 9 R. 13 of the C.P.C."
(6) Now the other point that remains for consideration is whether the Court has got in herent jurisdiction under section 151 of the Code of Civil Procedure to restore such ap plication in proper cases.
(7) Mr. B. B. Gupta appearing for the peti tioners vehemently contended that the view taken by the learned Subordinate judge is palpably erroneous. He has relied on a number of authorities in support of the view that an order of the type I have in this case, is not appealable and the Court has inherent power to restore such an application. Reliance was first of all placed on a Full Bench decision of the Assam High Court reported in Madanlal Agarwalla v. Tripura Modern Bank Ltd. AIR 1954 Assam 1 (FB), where it was held that an order of this type was not appealable and that an application for restoration which was itself dismissed for default could be restored under section 151, C.P.C. In this case Chief Justice Sarjoo Prosad, while agreeing with Ram Labhaya, J., made the following observa tions:
"It is difficult to hold that O. 9 read with
section 151 C.P.C., would apply to even such an application for restoration in view of the well known dictum, of the Privy Council in
Thakur Prasad v. Fakirullah,
ILR 17 All 106 (PC). The only provision, therefore, under which the Court can act to give appropriate relief to the party is
section 151 of the code. This view, as I have said, is also supported by another long line of authoritative pronounce ments, the most prominent of which are the decisions in
Sarat Krishna Bose v. Bisweswar Mitra AIR 1927 Cal 534 and in
Ganesh Prasad v. Bhagelu Ram AIR 1925 All 773. The observa tions of Sulaiman J. as he then was, in the latter case are particularly significant. I, therefore, hold that an application under
section 151 C.P.C. was competent and on merits I am inclined to the view taken by my brother Ram Labhaya J. that the application should be allowed."
To the same effect is another Full (Division?) Bench decision of Madhya Pradesh High Court reported in Pooranchand Mulchand v. Komal-chand Beniprasad, AIR 1962 Madh Pra 64. The Allahabad High Court seems to have taken the same view in a case reported in Gaja v. Mohd. Farukh AIR 1961 All 561.
(8) It appears that the Additional Sub-Judge has taken the adverse view by placing reliance on the Full Bench decision of the Patna High Court reported in Doma Choudhury v. Ramnaresh Lai, AIR 1959 Pat 121 (FB) where their Lordships have observed as follows:
"It seems to be manifest on a plain read ing of clauses (c) and (d) that there is no ground for discrimination between rejection of an application on merits and its rejection for default. The order which gives rise to an appeal is one whereby an application for the kinds mentioned in the clauses is rejected. Even if the application is dismissed for default it is an order of rejection and hence appeal able under either of the two clauses which may be applicable. There is no reason at all to give a restricted meaning to the word "rejecting" in the clauses by saying that it refers only to rejection on merits. If it is argued that there is no specific provision in the clauses regard ing dismissal of an application for default that argument can be countered by saying that there is no specific expression in them even relating to rejection on merits. In the definition of decree in section 2(2) it has been expressly provided that a decree 'shall not include (b) any order of dismissal for default'".
I have perused the judgment of the Patna High Court and with great respect to their Lordships, I am unable to agree with the view expressed by them.
Order 43 Rule l(c) of the Code of Civil Procedure runs as under:
"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."
A careful analysis of this provision clearly indicates that an appeal would lie only against an order under Order 9 Rule 9 C.P.C. reject ing an application for an order to set aside the dismissal of a suit. Clause (c) therefore, clearly postulates that there must be an order dismissing a suit for default and an application to set aside that order. In the instant case, the matter does not seem to be covesed by O. 43 Rule l(c) C.P.C. in terms. Even if the ap plication is restored the suit stands dismissed because then the other application which was dismissed for default has to V considered to make an order of the type I have in this case also appealable because this order itself seems to have been passed under section 151 C.P.C. The Civil Procedure Code contains a provision for filing an application to set aside an order dismissing a suit for default. But there is no provision at all under which an ap plication can be given to restore such an ap plication if it is itself dismissed for default. This can only be done by the Courts under the inherent powers contained in section 151 C.P.C. If, therefore, a Court can entertain an application for restoration of an application dismissed for default under inherent powers, there is no reason to suppose that it cannot restore that application also if it is dismissed for default. The power which gives the Court a discretion to entertain an application must necessarily give the residuary powers to pass other orders ex debito justitiae. Thus we are unable to construe an order dismissing an ap plication which has itself been dismissed for default as an order dismissing the suit itself so as to be appealable under Order 43 Rule 1 (c) C.P.C. Moreover, if an appeal lies against ^such an order the appeal will be of an illusory nature because the appellate Court could not go into the question as to whether the applicant was prevented by sufficient cause from attending the Court except on affidavits. The order, if appealable, would only indicate that the application has been dismissed without giving the grounds.
In these circumstances, therefore, the ap pellate Court has, again to go into the original question regarding the fact as to whether the applicant was prevented by sufficient cause from attending the Court. Thus the appellate Court would really be acting as an original Court in deciding this question. I am fortified in my view by the observations of the Chief Justice Sarjoo Prosad in AIR 1954 Assam 1 (FB) which are as follows:
"I, however, agree that in most of these cases the right may be merely illusory and an appeal may not be suitable remedy at all because the petitioner was prevented from presenting his case before the Court. There may be nothing on the record on the basis of which the party who has been prevented from appearing by causes beyond his control, could show to the appellate Court that the order of dismissal for default was wrong or contrary of law. If the appellate Court were to decide the matter by affidavits or make an order on enquiry it would mean, in the other words, adopting the same procedure as the original Court itself "could have done by giving a chance to the petitioner to show that there was sufficient cause for the default. The ap peal in such cases will be converted to all intents and purposes into a petition for restora tion of the application under O. 9 R. 13 Civil P.C. Instead of leading to a duplication of procedure, the purpose, therefore would be better served by giving an opportunity to the petitioner by the original Court itself to show cause for his absence. I cannot bring myself procedure, and since there is no specific provi sion, for it, this can only be done by an ap plication under section 151 C.P.C."
To the same effect are the observations of Untwalia J. in another Patna case reported in Chandrika Singh v. Parsidh Narayan Singh, AIR 1960 Pat 504 where he observed as follows:
"Even if the order dismissing miscel laneous case under O. 9 R. 9 or under O. 9 R. 13 is appealable, I am feeling some diffi culty to follow how the appellate Court hear ing the appeal against the order of dismissal will be able to investigate into the contested facts which may be put forward on behalf of the parties before it as to whether there was sufficient cause which prevented the ap plicant from appearing when his miscellaneous case was called out for hearing. Unless the appellate Court takes additional evidence in the case or directs an enquiry by taking ad ditional evidence by the lower Court, the contested facts would not be decided, and in absence of any decision on those contested facts, the appellate Court would find it difficult to set aside the order of dismissal without the aid of the necessary findings on further facts. In the instant case, the application under O. 9 R. 4 was dismissed for default and there is no specific provision in the Code which empowers a Court to investigate new facts which are now placed in another application for restoration of the miscellaneous case and they cannot but be investigated under inherent powers of the Court."
For these reasons, therefore, I feel that the view taken by the Assam High Court and the other High Courts to the effect that in such cases, the Court has power to grant relief to the applicant under section 161 C.P.C. and that an order dismissing an appli cation of the type I have in this case, for de fault is not appealable is correct.
(9) In the light of the foregoing discus sions the result is that the revision petition is allowed, the order of the Additional Sub-Judge dated 3-10-64 is set aside and he is directed _ to dispose of the application of the petitioners ' on merits. Having regard to all the circums tances of the case, I leave the parties to bear their own costs.
Revision allowed.