ORDER
1. This C.R.P. is filed by the plaintiff, petitioner in I.A. 2090/2000 in O.S. No. 57/98 of the Munsiff’s Court, Taliparamba assailing the order dated 18.8.2000.
2. The petitioner has filed the suit against the respondents for mandatory injunction in a representative capacity under O.1, R. 8 of the C.P.C. When the suit was posted for trial on 31.1.2000 the suit was dismissed for default as there was no representation on behalf of the plaintiff. I.A. No. 651/2000 filed by the plaintiff for restoration of the suit under O.IX, R. 9 of the C.P.C. was also dismissed for default. Hence the plaintiff filed the above I.A. to restore I.A. No. 651/2000 which was dismissed for default. The lower court dismissed the petition as per the impugned order stating that the provision for appeal can be invoked and there is no provision to restore the petition or restoration.
3. The counsel for the petitioner vehemently submitted that the above suit is filed against the respondents for restoration of Avipalam public channel which drains rain water from the adjoining properties to the Pazhayangadi river, a portion of which has been trespassed upon, filled up and unauthorised construction is made by the 2nd respondent, in a representative capacity. He has also submitted that even though appeal is provided against he order of dismissal of an application to restore the suit under O. IX, R. 9 of C.P.C., the court has got ample jurisdiction to set aside the order of dismissal of the petitioner under S. 151 of the CPC, even if no petition for restoration lies under O. IX, R. 9 of the CPC. According to him, in case the dismissal order is not set aside and the petitioner is not given an opportunity to urge his contentions, there will be grave failure of justice and trespass upon the public property and destruction of the public thodu will be perpetrated. Therefore, according to him, in the interests of justice and lower court should have taken a reasonable and pragmatic view of the matter instead of taking very strict and highly technical stand and dismissing the above petition.
4. The counsel for the 2nd respondent submitted that the lower court passed the order dismissing the application finding that an application seeking restoration of an application filed under O. IX, R. 9 of CPC dismissed for default is appealable and therefore, no application to restore such an application dismissed for default is sustainable under law and therefore, the impugned order passed by the lower court dismissing the application filed under S. 151 of the CPC is perfectly legal and valid and hence the above revision is devoid of any merits.
5. O. XLIII R. 1(c) of the C.P.C. provides appeal from an order under R.9 of O.IX rejecting an application for an order to set aside the dismissal of the suit. Therefore, the lower court held that it has no jurisdiction to entertain the above application filed under S. 151 of the CPC to restore the application which was dismissed for default, seeking to restore an application under O. IX R. 9 o the C.P.C. to set aside the dismissal of the suit for default.
6. As to whether the court has to got jurisdiction to entertain and dispose of such an application, there appears to be sharp difference of views in the various High Courts in India. While the High Courts of Jammu & Kashmir, Assam, Madhya Pradesh and Nagpur have taken the view that such an application is sustainable under S. 151 of the CPC, in order to met the ends of justice, the High Courts of Calcutta and Patna have taken the contrary view. In the decision of Kaviraj Mohan Singh v. Shiv Ji Bhagati (AIR 1963 J&K 12) a Division Bench of the Jammu and Kashmir High Court has observed as follows:
“Thus we are unable to construe an order dismissing an application which as itself been dismissed for default as an order dismissing the suit itself so as to be appealable under S. 43 R. 1(c) CPC. Moreover, if an appeal lies gainst such an order the appeal will be an illusory nature because the appellant court could not go into the question as to whether the applicant was prevented by sufficient cause from attending the court except on affidavits. The order, if appealable, would only indicate that the application has been dismissed without giving the grounds.
In these circumstances, therefore, the appellate court has gain to go into the original question regarding the fact as to whether the applicant was prevented by sufficient cause from attending the court. Thus the appellate court would really be acting as an original court in deciding this question”.
In that judgment the Division Bench of the Jammu & Kashmir High Court has quoted with approval the observations made by the Assam High Court in the decision in Holiram Gaonbura v. Rameshwar Das (AIR 1954 Assam 1) which reads as follows:
“I, however, agree that in most of these cases the right may be merely illusory and an appeal may not be suitable remedy at all because the petitioner was prevented from presenting his case before the court. There may be nothing on the record on the basis of which the party who has been prevented from appearing by causes beyond his control, could show to the appellate court that the order of dismissal for default was wrong or contrary to law. If the appellate court were to decide the matter by affidavit or make an order on enquiry, it would mean, in the other words, adopting the same procedure as the original court itself could have done by giving a chance to the petitioner to show that there was sufficient cause for the default. The appeal in such cases will be converted to all intents and purposes into a petition for restoration of the application under O.9, R.13 Civil P.C. Instead of leading to a duplication of procedure, the purpose, therefore, would be better served by giving an opportunity to the petitioner by the original court itself to show cause for his absence. I cannot bring myself to believe that the law would disfavour such a procedure, and since there is no specific provision, for it, this can be only be done by an application S. 151 C.P.C.”
7. I am in respectful agreement with the views expressed by the Jammu & Kashmir High Court, Assam, Nagpur and M.P. High Courts that unless the appellate court takes additional evidence in the case or directs an enquiry by taking additional evidence by the lower court, the contested facts would not be decided and in the absence of any decision on those contested facts, the appellate court will find difficult to set aside the order of dismissal without the aid of the necessary findings on further facts. In this case from the impugned order it is clear that the lower court without considering the merits of the case dismissed the application stating that the court has no jurisdiction to entertain and dispose of the petition since an appeal is provided against the order. Therefore, in case appeal is preferred against the above order, the appellate court will have no material to find out whether the petitioner was prevented from appearing before the court on the particular day due to sufficient cause and either the appellate court will have to embark upon an enquiry or direct the lower court to conduct an enquiry and enter a finding as to whether the petitioner was prevented by sufficient reason from appearing before the Court. Therefore, in such cases, the Court has got power under S. 151 of the CPC to entertain and dispose of the application on merits. Therefore, I find that the lower court was in error in finding that the above application is not sustainable under S. 151 of the C.P.C. since appal is provided against that order XLIII R. 1(c) of CPC.
Hence, the C.R.P. is allowed. The impugned order is set aside and the lower court is directed to dispose of the petition on merits in accordance with the law after giving an opportunity to both sides to adduce evidence.