P T DORAISWAMY Vs. F MANOHARLAL

JUDGEMENT

(1.) THE revision petition is against the order dismissing an application filed by the petitioner herein todischarge the summons issued to him for examining him as a witness. THE short facts are as follows: THE petitioner was appearing as counsel for the first respondent herein in certain proceedings. One of such proceedings was O.S.No.l584of 1979. That was a suit filed by the first respondent for an injunction against his brother. THEre were three other suits between the first respondent and his brother the second respondent and there were other parties also involved in those disputes. It is not necessary for the purpose of this case to set out the details of those cases. Ultimately, all the matters were referred to arbitration by a joint memo filed in the Court. THE arbitrators passed an award and the award was filed in Court on 30.10.1984. On the basis of the award a decree was passed in one of the suits viz., O.S.No.441 of 1981. THE award itself directed the plaintiff in the other three suits viz., O.S.No. 1584 of 1979,0.S. No. 170 of 1983 and O.S.No.172 of 1983 to report settlement out of Court. Memos were filed in all the three suits. Insofar.as O.S.No. 1584 of 1979 is concerned, a memo was filed by the petitioner herein as counsel for the first respondent herein, who was the plaintiff in that suit. Pursuant to the said memo the suit was dismissed as settled out of Court.

(2.) THE first respondent filed I.A.No.1595 of 1985 for restoration of the suit to file under O.9, Rule 9 of the Code of Civil Procedure. THE first respondent stated in the affidavit filed in support of the application that he was initialing proceedings to set aside the award and all the suits should be restored to file for trial on merits. Thus, he prayed for restoration of the suit O.S.No. 1584 of 1979 to file.

(3.) ONE matter has to be cleared at this stage. The petition filed by the first respondent purports to have been filed under 0.9, Rule 9 of the Code of Civil Procedure. That is obviously wrong. 0.9, Rule 9 of the Code of Civil Procedure cannot be invoked for restoring a suit which has been dismissed as settled out of Court. That provision would apply only if a suit is dismissed for default. In this case the suit have been dismissed as settled out of Court on the basis of the award passed by the Arbitrators cannot be restored under the provisions of 0.9, Rule 9 of the Code of Civil Procedure. But, quoting a wrong provision of law will not disentitle a party to a relief if he is entitled to it on merits. Hence, the Subordinate Judge, Salem is directed to treat I.A.No.1595 of 1985 as an application under Scc.151 of the Code of Civil Procedure for restoration of the suit on the footing that the arbitrators award is invalid. The relief can be granted only if the Supreme Court holds that the award is not valid. Hence, I direct the Subordinate Judge, Salem to keep I.A.No.1595 of 1985 pending on his file till the disposal of the matter by the Supreme Court.