SAYEEDA BEGAM Vs. ASHRAF HUSSAIN

JUDGEMENT

(1.) The question which has been referred to the Division Bench for answer is this: Whether the provisions of Order 22 read with Section 141 Civil P. C. would apply to proceeding initiated under Order 9, for restoration of a suit dismissed in default?

(2.) The referring order gives the following facts: Mst. Sikandar Jahan Begum filed Civil Suit No. 9-A of 1964 in the Court of First Additional District Judge, Bhopal, in forma pauperis. She remained absent on 3-11-1966 and her counsel pleaded no instructions. The suit, therefore, came to be dismissed in default of appearance of the plaintiff. An application was later filed for restoration of the suit which came to be registered as Miscellaneous Judicial Case No. 29 of 1966. Notices were issued to the defendants to show cause. The report of the Process Server, given sometime in Sept., 1967 was that the defendant No. 1 had refused to accept the notice. To this, the other defendants raised an objection that the defendant No. 1 had already died and the proceedings had abated for reason of non-joinder of his legal representatives within time. Before steps could be taken to implead the legal representatives of the deceased defendant No. 1 and before the Court could give decision on the question whether or not the proceedings had abated, Sikandar Jehan Begum died. An application came to be presented to bring on record her legal representatives. There is a dispute as regards the date on which this application was made. According to the legal representatives, the application was made on 31-7-1968. According to the defendants, it was mads on 8-11-1968. The defendants said that the proceedings had abated since the application was moved more than 90 days after the death of Sikandar Jehan Begum. They also said the application was made by some unauthorised person and could not be treated as one for the benefit of the legal representatives. The Court below has overruled the objections. The legal representatives have been brought on record not only in the miscellaneous proceedings for restoration but also in the main suit which already stood dismissed in default.

(3.) The important question that arose for consideration was whether the provisions of Order 22 read with Section 141 Civil P. C. in terms applied to restoration proceedings initiated under Order 9 and registered as a separate miscellaneous case. A similar question had arisen for consideration before C.P. Sen J. in Abdul Rashid v. Qazi Rasoolkhan Civil Revn. No. 658 of 1975, D/- 313-1977 (Madh Pra) and he was of the opinion that such a miscellaneous proceeding would be governed by Order 22 read with Section 141 Civil P. C. This is what Sen J., said: