SUBODHCHANDRA CHAMPAKLAL MEHTA Vs. KESHAVLAL JESHINGBHAI PATEL

JUDGEMENT

(1.) this petition under sec. 115 of the Code of the Civil Procedure has a chequered history and consequently all the relevant facts leading to this petition deserve to be noted in details at the outset. The petitioner is the original plaintiff and opponent is the original defendant in Special Civil Suit No. 194 of 1971 filed by the petitioner in the Court of learned Civil Judge Senior Division Baroda. The suit was filed on 4-10-1971. In the said suit the plaintiff prayed for a decree of Rs. 12 614 interest and cost against the opponent defendant on the ground that this amount was due and payable to the plaintiff on account of the goods sold by him to the defendant on credit after deducting the payment received by him pursuant to the said dealings. This suit was resisted by the defendant by filing a written statement Ex. 19 on 18-6-1973. The learned Trial Judge framed issues in the light of the pleadings. Thereafter further progress of the suit got thwarted because of within subsequent events which will have to be noticed now. The suit was posted for hearing before the learned Trial Judge on 28-8-1975. On that day the petitioner-plaintiff did not remain present. Therefore the suit was dismissed for default. That resulted in Misc. Civil Application No. 425 of 1975 filed by the petitioner-plaintiff for restoration of the suit dismissed for default. That may be styled as Restoration Application No. 1. This application was processed and was being considered on merits by the learned Trial Judge. However even that application got dismissed for default on 29-1-1979 on account of the absence of the plaintiff. Thus ended the proceedings in the first Restoration Application. Then followed next Restoration Application being Misc. Civil Application No. 31 of 1979 by the petitioner. That may be styled as Restoration Application No. 2. It was for setting aside the dismissal for default order passed in the previous Misc. Civil Application-Restoration Application No. 1. Thus in short Restoration Application No. 2 sought the intervention of the Court for restoration of Restoration Application No. 1. Restoration Application No. 2 also met with the same fate and got dismissed for default on account of the absence of the petitioner on 9-2-1981. Not deterred by the said sequences of bad fate the petitioner-plaintiff moved third restoration application being Misc. Civil Application No. 39 of 1981. It is this Restoration Application No. 3 for restoration of earlier Restoration Application No. 2 which came to be dismissed by the learned Trial Judge on hearing the parties on 12-11-1982 The learned Trial Judge did not decide the Restoration Application No. 3 on merits but took the view that such successive restoration applications are not maintainable for restoration of prior restoration applications and consequently the third restoration application was dismissed as not maintainable. This order of the learned Trial Judge has been brought in challenge in the present proceedings under sec. 115 of the Civil Procedure Code.

(2.) Mr. Amin the learned Counsel for the petitioner-plaintiff placing strong reliance on the explanation to sec. 141 of the Civil Procedure Code as introduced by the Legislature by Amending Act of 1976 submitted that restoration applications themselves attract the procedure of the suit and will have to be treated for the purpose as suits. Sec. 141 alongwith explanation read as under:

(3.) In view of this explanation it is obvious that any proceedings under O. IX will be treated as a suit for the purpose of the procedure to be applied to such an application. It must be kept in view that so far as the first restoration application being Misc. Civil Application No. 425 of 1975 was concerned it clearly fell within the provisions of O. IX R. 9 of Civil Procedure Code as by that application the petitioner-plaintiff wanted the Court to set aside the dismissal of the suit on the sufficient ground stated by him in the application Moment the first restoration application fell within O. IX R. 9 of the Civil Procedure Code it attracted the procedure of a suit by virtue of explanation to sec. 141 of the Civil Procedure Code. Moment that happened when that application got dismissed for default on 29-1-1979 it in its turn got attracted the provisions of O. IX R. 9 by virtue of the fact that first restoration application had already attracted the procedure of suit. Thus the second restoration application being Misc. Civil Application No. 39 of 1975 moved by the petitioner-plaintiff for petitioner-plaintiff for restoration of the earlier restoration application being Misc. Civil Application No. 425 of 1975 got covered by O.IX R. 9. Moment that happened the procedure of suit became applicable even to second restoration application by combined reading of O. IX R. 9 and explanation to sec 141 of the Civil Procedure Code. When that second restoration application got dismissed on 9-2-1981 for default treating the second restoration application as a suit for the procedure of IX the third restoration application being Misc. Civil Application No. 39 of 1981 i.e. the present restoration application from which the proceedings arise before me also attracted the provisions of 0 IX R. 9 read with explanation to sec. 141 of the Civil Procedure Code. Consequently it could not be said that the third restoration application was not maintainable at all. May be on merits the learned Trial Judge could have come to his own conclusion whether there was sufficient cause for the petitioner-plaintiff to get earlier dismissal for default of restoration application no. 2 set aside by moving the third restoration application. The learned Trial Judge has not addressed himself on this aspect. He has dismissed the third restoration application all the short ground that it is not maintainable at law. In view of the scheme of O. IX R 9 read with explanation to sec. 141 of the Civil Procedure Code the said reasoning of the learned Trial Judge cannot be sustained. It proceeds on a misconception of the relevant procedural provision. Hence the learned Trial Judge failed to exercise the jurisdiction vested in him by law.