METHARAM BASARMAL, FIRM THROUGH MINOR MOHANLAL BY NEXT FRIEND KHIALDAS METHARAM SATWANI Vs. KHATANMAL JEOOMAL JOINT FAMILY FIRM

JUDGEMENT

(1.) THIS is an appeal preferred on behalf of the plaintiff -appellant under section 40(a) of the Displaced Persons (Debts Adjustment) Act, 1951 (hereinafter called the Act) against the order purporting to be one under Order 9, rule 8, Civil Procedure Code dismissing the suit filed by him under section 10 of the Act for default. The circumstances material for the consideration of the points raised in this appeal are as follows. The appellant, who is a minor and who prosecuted these proceedings through his next friend Mr. K.M. Satwani, Civil Judge, Amreli (erstwhile Bombay State), filed a petition under section 10 of the Act in the Court of the District Judge, Ratlam since at the time of the institution of the petition on 16 -12 -1952 the District Judge of every District was constituted a Tribunal under the Act. Before that Tribunal the proceedings went on for some time. Written statement was filed, issues were framed and thereafter an application was submitted on behalf of the respondents to try certain issues as preliminary. At this stage a notification was issued by the Madhya Bharat Government in the Madbya Bharat Gazette dated 4 -11 -1951, in supersession of the earlier notification under which the District Judge of every District had been appointed the Tribunal under section 4 of the Act, appointing Civil Judge, First Class, of every Revenue District to act as Tribunal instead. This notification became operative from 1 -12 -1954. Thereupon the District Judge, Ratlam who was dealing with this case directed its transfer to Civil Judge, First Class, Neemuch. On receipt of the record before the Civil Judge, First Class, Neemuch he passed an order on the 10th of January 1955 requiring the patties to appear before him on 20 -1 -1955. Before the service of this notice, it appears, the appellant's next friend Mr. Satwani submitted a letter of request dated 23 -12 -1954 to the effect that unless there was any objection the intimation of the date which the Tribunal would be pleased to fix might be given to him at his place at Palanpur (North Gujarat) whore he had been posted and. that he might be given 15 days time in order to adjust his work. Pursuant to this letter of request the Tribunal sent a letter dated 31 -12 -1954 informing him that the date of hearing was 20 -1 -1955. On 12 -1 -1955 the next friend sent another letter requesting postponement of the date to another date on the ground that his uncle had died on 11 -1 -1955 and that he would be required to perform his Shradha ceremony. A self -addressed envelope was sent along with this letter and a request was made that he might be given intimation of the adjourned date. In the letter the next friend expressed his willingness to affix stamp on this letter of request if required as for an application on his appearance on the adjourned date. The learned Civil Judge, Neemuch directed this letter to be pub up before him on the date of hearing. On 20 -1 -1955 when the matter was placed for consideration the learned Judge treated the application as involving admission of the next friend that he had received intimation of the date fixed and without alluding to circumstances on the basis of which the next friend was required to request for adjournment and without even sending any reply to the same refusing adjournment dismissed the petition for default under Order 9, rule 8, Civil Procedure Code.

(2.) MR . Satwani who probably might have been under an impression that the case had been adjourned sent another post -card on 28 -1 -1965 requesting for information as to the adjourned date. A letter dated 8 -2 -1955 was again sent by him requesting for information as to what happened on 20 -1 -1955. It seems intimation of the dismissal of the suit was given to the next friend by means of a letter dated 17 -2 -1955. When exactly that was posted and reached the next friend is not clear. But he submitted an application for restoration and at the same time filed the present petition an a revision petition which later was directed to be converted into an appeal under section 40(a) of the Act by my brother Dixit J. (as he then was). The occasion for such conversion arose when the question as to competency of the revision was considered by the learned Judge. Section 40 of the Displaced Persons (Debts Adjustment) Act, 1951, that came in for consideration in that connection is as follows: -

(3.) AN order in the course of execution of any decree or order. Now a final order may mean any order which has the effect of terminating the proceeding in question so far as the Tribunal is concerned apart from any consideration as to remedy available against such order. In that sense an order dismissing the application for default is a final order since it brings to an end the proceeding before the Tribunal. The fact that such dismissal is liable to be set aside by means of an application under Order 9, rule 9, is concerned cannot detract from such order its finality. An appeal is, therefore, no doubt competent. This is also the view taken by the learned Judge who refused to entertain a revision application and directed its conversion into an appeal. Mr. U. M. Trivedi for the respondents contended that since an application to the very Court is competent the order of dismissal is not a final order. In my opinion the contention of the respondents is not correct. The order can nevertheless be a final order even if a remedy may lie to the very Court for setting it aside. The finality does not depend upon the consideration whether the order is liable to be set aside by the very Court or not. It depends, upon the nature of the order and its effect upon the proceeding or any part of the proceeding as also upon the question whether the rights of the parties are determined thereby. If we are to accept the proposition that an order is not final in case there is a remedy available at law to the very Court which passed (he order then in all cases where it is competent to apply for review the order will not be final. The term final order appears in section 109, Civil Procedure Code which provides for appeals to Supreme Court. It was held in Abdul Rahman v. Cassim and Sons : AIR 1933 PC 58 (60): - The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined no appeal lies against it under section 109(a) of the Code. In Mohmood Hasan v. Government of V.P., AIR 1950 All. 457 the High Court of Allahabad considered the question whether the order refusing to restore an appeal dismissed for default is a final order. It was held to be final following the tests laid down in Bozson v, Altrincham Urban District Council, (1903) 1 K B 547, as also the decisions reported in its earlier case reported in Krishna Kant v. Lal Amarnath, AIR 1937 All. 560 and M.A. Janki v. M.A. Srirangammal : AIR 1953 Mad. 38. The ratio of all these cases is that the order dismissing a suit for default is a final order because it is not interlocutory in the sense that it leaves nothing further to be done in the proceedings in suit and it determines the rights of the parties in the suit by its own force though such determination may not be on merits. Under the Civil Procedure Code such order of dismissal is not appealable but that is not a relevant consideration. Now as regards merits two points are raised: -