R.S.BIJU Vs. KOUSALYA AMMA

JUDGEMENT

(1.) The 2nd additional plaintiff in O.S.No.5 of 2010 on the files of the Sub Court, Cherthala, has filed this Regular First Appeal under Sec. 96 r/w Order XLI Rule 1 of the Code of Civil Procedure, 1908, challenging the judgment in the said case dtd. 12/1/2016, whereby the learned Sub Judge dismissed the Suit for non prosecution/default. Since the judgment under challenge is one passed under Order 9 Rule 8 of C.P.C, the question arises for consideration is whether a Regular First Appeal under Sec. 96 r/w Order 41 of the Code of Civil Procedure (Rs.C.P.C' for short hereafter) would lie against a verdict whereby the suit has been dismissed for default/non-prosecution?

(2.) Order 9 Rule 9(1) of the Code of Civil Procedure provides that where a suit is wholly or partly dismissed under Order 9 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. In the instant case, the petitioner already filed I.A.Nos.406 and 407 of 2016 under Order 9 Rule 9 of C.P.C as well as under Sec. 5 of the Limitation Act to set aside the dismissal and restore the suit on condoning the delay of 98 days in filing the petition under Order 9 Rule 9, but the same were dismissed by the trial court by a reasoned order. Against which revision petition also filed and the same was closed.

(3.) Sec. 96 of the C.P.C provides appeal from original decree. Sec. 96(1) provides that, save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every 'decree' passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. Similarly Sec. 96(2) provides that, an appeal may lie from an original decree passed ex parte. So, as per Sec. 96(1), the Regular First Appeal shall lie from every 'decree' passed by any court within the ambit of Sec. 9 of C.P.C. Sec. 2(2) of C.P.C defines Rs.decree' as, the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Sec. 144, and shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Therefore, in view of Sec. 2(2)(b) of C.P.C, any order of dismissal is not a decree and as per Sec. 2(2)(a) of C.P.C any adjudication from which an appeal lies as an appeal from an order is also not a decree appealable under Sec. 96 r/w Order 41 of C.P.C. Thus it can be safely concluded that an order of dismissal of a suit for default/non prosecution can be set aside by filing an application under Order 9 Rule 9 of C.P.C and any order passed in the said petition is appealable under Order 43 Rule 1(c), no Regular First Appeal under Sec. 96 r/w Order 41 Rule 1 of C.P.C is maintainable challenging the order dismissing the suit for default or non-prosecution. Therefore, the present appeal is not maintainable. Thus the present appeal is liable to be dismissed holding that the same is not maintainable irrespective of the fact that the same has been filed with a petition to condone the delay of 3222 days and the said petition is also dismissed.