MAROTI ASTHANKAR Vs. GANGADHAR RAO KHER

JUDGEMENT

(1.) THE circumstances in which this revision application has been filed are that a suit filed by the opponent in the Court of Civil Judge Class II, claiming a decree for specific performance of a contract for the conveyance of a house was dismissed by the trial Court on 6th December 1962 by making an order purporting to be under Order 17, rule 3 of the Code of Civil Procedure. On this date the evidence of the plaintiff's witnesses was to have been recorded, but when the case was taken up for hearing, the plaintiff and his counsel both were absent. THEreupon, the learned Civil Judge dismissed the suit purporting to act under Order 17, rule 3.

(2.) ON 4 January 1963 the plaintiff filed an application under Order 9, rule 9 for restoration of the suit, which was dismissed by the Civil Judge on 12th April 1963 on the ground that it was not maintainable as the plaintiff's suit had been dismissed under Order 17, rule 3. The plaintiff also filed an appeal against the order of the trial Judge dated 6th December 1962 dismissing his suit. The learned Additional District Judge, Jabalpur, who heard the apppeal, allowed it, and setting aside the order of dismissal by the original Court remanded the matter for that Court for disposal according to law. The defendant then preferred a revision petition in this Court against the decision of the Additional District Judge, Jabalpur. That revision petition was allowed on 7th January 1964, and the order of the learned Judge, Class II, Jabalpur, dismissing the plaintiff's suit under Order 17, rule 3, was substituted by an order dismissing the suit with costs under Order 9, rule 8, read with Order 17 rule 2, for want of appearance of the plaintiff on 6th December 1962. In the order allowing the said revision petition, which is reported in Maruii Damaji Ashtinkar v. Gangadhar Rao Kher, 1964 MPLJ 919, the following observations were made:

(3.) I am unable to accept these contentions. Under Article 163 of the Limitation Act, 1908, the limitation for an application by a plaintiff for an order to set aside a dismissal of a suit for default of appearance is 30 days from the date of the dismissal. So also under Article 122 of the Limitation Act, 1963, the limitation prescribed for an application for restoration of a suit dismissed for default of appearance is 30 days from the date of dismissal. In the first column of Article 193 of the Act of 1908, the application for which limitation has been prescribed by it has been described as an application for an order to set aside a dismissal for default of appearance. Likewise, in the first column of Article 122 of the Act of 1963, the application has been described as one 'to restore a suit........dismissed for default of appearance. Having regard to this description of the application, the expression 'the date of dismissal' used in the third column of both the Articles must be construed as meaning the date of dismissal of the suit for default of appearance under Order 9, rule 8. In the present case, the plaintiff's suit was, no doubt, first dismissed by the trial Court on 6th December 1962 for default of appearance. But the dismissal order passed by the original Court, albeit erroneous, was under Order 17, rule 3. That order was not one dismissing the plaintiff's suit under Order 9, rule 8, read with Order 17, rule 2. It was on 7th January 1964, when this Court in the revision petition filed by the defendant Maroti substituted the order of the trial Court dismissing the plaintiff's suit under Order 17, rule 3, by an order dismissing it with costs under Order 9, rule 8, read with Order 17, rule 2, for want of appearance of the plaintiff on 6th December 1962, that the plaintiff's suit was dismissed under Order 9, rule 8 for default of his appearance on 6th December 1962. That being so, the limitation for an application under Order 9, rule 9, for restoration of the suit would commence not from 6th December 1962 when the suit was first dismissed by the trial Court, but from 7th January 1964 when the aforesaid substitution order was made. Indeed, so long as the trial Court's order dismissing the plaintiff's suit under Order 17, rule 3, stood, no application under Order 9, rule 9, was maintainable at all. That being so, no question of limitation in connexion with an application which was not competent could at all arise. In this view of the matter, the plaintiff's application for restoration of the suit filed on 9th January 1964, two days after an order under Order 9, rule 8, read with Order 17, rule 2, dismissing the suit for default of appearance on 6th December 1962 was passed, clearly within time. The petitioner's objection that the order passed by the Civil Judge on 12th April 1963 dismissing the plaintiff's earlier application under Order 9, rule 9, operated as res judicata, so as to preclude the plaintiff from making a second application under Order 9, rule 9, lacks substance. The first application under Order 9, rule 9, was disposed of by the Civil Judge, not on merits, but on the ground that it was not maintainable at all. The Civil "Judge declined to entertain it. It is well settled that when the Court holds that a suit is not maintainable and declines jurisdiction to entertain it, then what operates as res judicata is the Court's decision as to the maintainability or jurisdiction and not any finding given by the Court on merits: [See Upendra Nath v. Lal, AIR 1940 PC 222 and Shankarlal v. Hiralal, AIR 1950 PC 80]. In the present case, the learned Civil Judge dismissed the plaintiff's application under Order 9, rule 9, filed on 4th January 1963 solely on the ground that it was not competent as the suit had been dismissed by the trial Court under Order 17, rule 3. He expressed no opinion on the merits of the application. Even he had done so after holding that the application was not competent, then that expression of opinion would have been merely obiter, not operating as res judicata so as to prohibit from making a second application under Order 9, rule 9, when the order of the dismissal under Order 17, rule 3, was substituted by this Court by an order under Order 9, rule 8, read with Order 17, rule 2.