MOHAMMED FARKHUNDA ALI Vs. KHAMRUNNISSA BEGUM

JUDGEMENT

(1.) This Revision Petition raises the question whether an appeal against an order dismissing a restoration petition is competent and allowed in law This Revision Petition is filed by the defendant in O.S. No. 106 of 1958 on the file of the Third Assistant Judge, City Civil Court, Hyderabad. This suit filed against him was dismissed for default on 15th April, 1958. Thereafter, LA. No. 185 of 1958 was filed on 2nd June, 1958 by the plaintiff (respondent herein) under Order 9, rule 9, Civil Procedure Code, to restore that suit. But it transpires that I.A. No. 185 of 1958 was itself dismissed on 27th November, 1958 for default. The rejection of this Interlocutory Application, which admittedly was filed under Order 9, rule 9, was not appealed against. The plaintiff thereafter chose to file LA. No 76 of 1959 purporting to be under Order 9 rule 9, and section 151, Civil Procedure Code. This was allowed on 26th February, 1959. The effect has been that LA. No. 185 of 1958 Was reinstated. But when again LA. No. 185 of 1958 stood posted to 1st April, 1959, it had to be dismissed for default of the plaintiff. Thus, in respect of the restoration petition, the same position as it obtained before the filing of LA. No. 76 of 1959 re-appeared. Therefore, the plaintiff filed LA. No. 451 of 1959, this time purporting to be only under section 151, Civil Procedure Code. But the prayer in this petition consisted only to restore LA. No. 76 of 1959. It may be pointed out that such a prayer for resuscitating LA. No. 76 of 1959 is wholly unsustainable as that petition was already allowed and cannot be brought to life by any process of law. While matters stood thus, the plaintiff allowed LA. No. 451 of 1959 to be dismissed for default. He resorted to the method of filing another petition LA. No. 909 of 1959 for resuscitating LA. No. 451 of 1959. This again purports to be under Order 9, rule 9, Civil Procedure Code and section 151. This petition was, however, allowed on 10th February, 1960. The plaintiff thus achieved the result of keeping alive LA. No. 451 of 1959. Therefore LA. No. 451 of 1959 was heard by the trial Court on 17th Februuary, 1960 which passed the following order :

(2.) The important question for consideration is whether the lower Court had the jurisdiction to entertain C.M.A. No. 6 of 1960. Before answering this question thus posed it is necessary first of all to state to what extent the Civil Procedure Code has sanctioned the procedure in respect of filing of applications for restoration of a dismissed suit, for setting aside an ex parte decree and as to when orders falling under 'these two categories are appealable. Order 9, rule 8, details the circumstances in which when the defendant appears but the plaintiff does not appear the Court shall dismiss the suit, and rule 9 of Order 9 provides the Court with the power to set aside the dismissal if subsequently the plaintiff applies for such an order and the Court is satisfied that there Was sufficient cause for his non-appearance. Rule 6 of Order 9 is the relevant provision under which a defendant may be set ex parte if it is proved that summons were duly served and rule 13 of Order 9 fixes the conditions under which a Court can set aside a decree which was passed ex parte against a defendant. Any party aggrieved with an order, setting aside the dismissal of a suit under rule 9 or setting aside an ex parte decree under rule 13 of Order 9 is empowered to prefer an appeal under Order 43 which enumerates the cases in which appeals from orders are permitted. Clauses (c) and (d) of rule 1 of Order 43 read as follows :-

(3.) The significance attached to the mention of section 104 in this section could be brought out by extracting the relevant portion of the section itself which reads : "104(1). An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law frr the time being in force, from no other orders :- (i) any order made under rules from which an appeal is expressly allowed by rules ;"