Vinod Kumar Gupta, J.:— There will be an order in terms of prayer(a) of the petition.
2. A writ application was filed by the appellant in this Court, being W.P No. 4361 of 1993 in which an ad-interim order of injunction in terms of prayer (g) was issued by the learned Single Judge on December, 1993. The writ application, however, cam to be dismissed for default vide order dated 10th June, 1998. While dismissing the writ application for default the writ-petitioner-appellant was also imposed the costs assessed at Rs. 10,000/-. It was also specifically mentioned in the dismissal order that the interim directions should be vacated with immediate effect. It is the admitted case of the parties that immediately after the dismissal of the writ application, the ad-interim injunction dated December 1, 1993 actually stood vacated and the respondent No. 1, Central Bank of India remitted the amount forming the subject-matter of the Bank Guarantee to the respondent No. 2.
3. Within three days from the date of dismissal of the writ application for default the appellant filed an application for restoration of the dismissed writ application and for recalling of the order dated 10th June, 1998. The learned Single Judge vide judgment under appeal passed on 8th July, 1998 refused to restore the writ application and recall the order dated 10th June, 1998 mainly and primarily on the ground that, because of the vacation of the interim direction and the remittance of the money involved, the writ application had become infructuous and the restoration, therefore, would not serve any useful purpose. Various other observations were also made in the order dismissing the restoration application. It is against this order that the present appeal has been filed with the consent of the parties the appeal is treated as on day's list and disposed of on merits along with the application for stay.
4. The learned Advocate of the respondent No. 1 has very vehemently ogposed this appeal mainly on the ground that the learned single Judge was correct in his view that the restoration application should not be allowed since the writ application itself has in the meanwhile become infructuous.
5. The learned Advocate for the respondents also canvassed before us some points regarding the maintainability of the writ application itself and the nature of the reliefs claimed by the writ-petitioner.
6. After hearing the learned Advocates of the parties and on thoughtful consideration of all the points involved, we are of the view that the limited question, rather the only question involved in this appeal is about the right of the appellant to have the dismissal of writ application restored to its original position. The issue incidental to this limited question is whether such a right gets defeated and frustrated if the writ-application, either actually or in view of the learned Single Judge's opinion has been rendered infructuous in the meanwhile because of the vacation of stay order consequent upon the dismissal of the writ application for default of appearance.
7. We are clearly of the view that the right of restoration is not at all dependent on the question whether the writ petition has actually been rendered infructuous or not because of the vacation of Stay Order.
8. A writ petitioner who has filed the writ petition is entitled to ask for its restoration if it is dismissed for default by the Court. The principles contained in Order 9, Rule 9 of the Code of Civil Procedure clearly suggest that the party which has suffered a dismissal for default of appearance has a right to apply for the setting aside of the dismissal order and to have the matter decided on merits. Rule 9 is reproduced hereunder for ready reference.
“Where a suit is wholly or partly dismissed under Rule 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 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.
(2) No order shall be made under this rule unless notice of the application Has been served on the opposite party.”
9. In an application for restoration it is open to the applicant to urge before the. Court the grounds for restoration and if, on examination of such grounds, the Court feels satisfied that the applicant has made out a sufficient cause for restoration, primarily linked with the explanation rendered forabsence as on the day of dismissal, it shall be against the principles of natural justice to deny to the applicant the relief of restoration, particularly in a case where the applicant approaches the Court for restoration in the shortest possible time and in any case within the period of limitation. Restoration is a right which cannot be easily tampered with. Each party to litigation has a right of a decision on merits. Right to have a decision on merits basically floors from Art. 226 of the Constitution which guarantees the remedy of approaching the High court for issuance of appropriate writs, directions of Order. Article 226 therefore by itself is a sure enough guarantee for the petitioner to enable him to apply for restoration of a dismissed application and to asked the Court that he be effectively participate in the proceedings so as to obtain a judgment on merits. If, merefore, a writ-petitioner approaches the Court within a couple of days after the writ petition is dismissed for default and satisfies the Court that the absence was neither wilful nor deliberate or that there was sufficient cause for the absence on other grounds, the restoration application should be allowed in normal course.
10. It is only after the restoration is done, would the question of the writ application having become infructuous or not arise. Such question can always be examined with reference to the rival contentions advanced at that stage, this issue, however, cannot be relevant at the stage of examining the question of restoration by itself. At that stage also it shall not be open to the Court and the parties to consider and urge whether the writ application itself was maintainable or not. Coupled with this is the related question of grant of interim relief or even the restoration of status-quo ante after restoration, if, because of dismissal and the vacation of interim relief, a development has taken place at the intervening stage by which the writ-petitioner has been deprived of some right which stood accrued to him because of the grant of interim relief. All such questions, therefore, in our view are wholly irrelevant for deciding the question of restoration.
11. For the reasons stated hereinbefore, therefore, we are satisfied and convinced that the learned Single Judge, while restoration question with the writ petition having been rendered infruciuous. In our view, in the facts and circumstances of this case, the restoration should have been allowed.
12. We, accordingly, allow the appeal and set aside the judgment dated 8th July, 1998 restoring the writ application to its original position. Because of restoration, the order dated 10th June, 1998 shall also be deemed to have been recalled, including the question relating to the imposition of costs. We do wish to make it absolutely clear that we have not gone into any question relating to the merits of the writ application or the entitlement of the petitioner to any interim relief or for that matter the very maintainability of the writ application. It shall be open to the respondents to urge before the learned single Judge all such questions relating to the maintainability of the writ application itself and to defend any application or prayer, if made by the petitioner for the grant of an interim relief or further relief. It should be for the learned single Judge to consider all such questions in the light of the observations made by us hereinabove.
There will be no order as to costs.
13. All parties are to act on a signed xerox copy of this dictated order on the usual undertaking.
14. Order accordingly.