(1) AO 589/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Amk
APPEAL FROM ORDER NO. 589 OF 2011
WITH
CIVIL APPLICATION NO. 811 OF 2011
Patel Engineering Ltd. .. Appellant
Vs.
United Estate & Builders Pvt. Ltd. .. Respondent
Mr. Ashish Kamat i/b Hariyani & Co. for the Appellant.
Ms. Alpana Ghone i/b M/s. I. R. Joshi & Co. for the
Respondent.
ig CORAM : MRS. ROSHAN DALVI, J.
Date of reserving the Order : 17th August, 2011.
Date of pronouncing the Order : 25th August, 2011.
JUDGMENT
1. The Appellant has filed this Appeal from the
Order challenging the order allowing restoration of
the Respondent’s Suit earlier dismissed for default.
The Respondent has claimed that the Appeal from Order
is not maintainable as it is not an appealable order.
The Appellant claims that it is appealable under Order
43 Rule 1(d) of the Code of Civil Procedure. Order 43
Rule 1 (d) relates to an order under Order 9 Rule 13
of the Code of Civil Procedure. Order 9 Rule 13
relates to setting aside a decree ex parte against the
Defendant. The order impugned is not a decree passed
ex parte against the Defendant. It is an order
rejecting an order of restoration of the Suit. A
decree under Section 2(2) is a formal expression of
adjudication which conclusively determines the rights
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of the parties with regard to all or any of the
matters in controversy in the Suit. An order
rejecting an application allowing restoration of a
Suit would, rather than determine the rights of the
parties for any matters in controversy, restore for
determination all of them which remain to be
adjudicated. Consequently the order is not appealable
as claimed by the Appellant. The Appeal is not
maintainable. It deserves to be dismissed on that
score alone as argued by Ms. Ghone on behalf of the
Respondent.
2. Nevertheless the facts of the case have been
stated to the Court and it can be seen that this
Appeal even on merits is not worth admission.
3. The Respondent filed a Suit on 10.06.2002 in
the Bombay City Civil Court. The Suit came to be
dismissed on 23.02.2005 for want of prosecution by
default in appearance. I am told that both the
parties did not appear on the day the Suit was
dismissed. The Respondent took out a Notice of Motion
five years thereafter in March, 2010 for restoration
of the Suit. A notice was given to the Appellant.
The Notice of Motion initially reached hearing on
09.04.2010. It was adjourned to 26.04.2010. On
26.04.2010 the board was discharged and the matter was
shown adjourned to 02.07.2010. It came to be
adjourned to 25.06.2010 when the application for
restoration was allowed but with costs of Rs.5000/-.
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The Suit was restored to file to be heard on merits.
4. The Appellant claims that there is no
justification in restoring the Suit. Sufficient cause
for the delay in taking out the application for five
years is not shown. The Appellant also claims that it
has acted on the orders of dismissal. How it is acted
is not stated.
5. The Appellant took out its own application
for setting aside the ex parte order restoring the
Suit. That application came to be rejected. The Suit
has remained restored. It has remained to be heard on
merits. The Appellant resists the Suit being heard on
merits.
6. The relevant provisions of the Code of Civil
Procedure for appearance of parties and consequences
of non appearance are required to be first noted.
These are Rules 3, 4, 8 and 14 of Order 9 which run
thus :
3. Where neither party appears, suit to be
dismissed.- Where neither party appears when the
suit is called on for hearing, the Court may make
an order that the suit be dismissed.
4. Plaintiff may bring fresh suit or Court may
restore suit to file.- Where a suit is dismissed
under rule 2 or rule 3, the plaintiff may
(subject to the law of limitation) bring a fresh
suit; or he may apply for an order to set the
dismissal aside, and if he satisfies the Court
that there was sufficient cause for [such failure
as is referred to in rule 2], or for his non-
appearance, as the case may be, the Court shall
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(4) AO 589/11
make an order setting aside the dismissal and
shall appoint a day for proceeding with the suit.
8. Procedure where defendant only appears. –
Where the defendant appears and the plaintiff
does not appear when the suit is called on for
hearing, the Court shall make an order that the
suit be dismissed, unless the defendant admits
the claim, or part thereof, in which case the
Court shall pass a decree against the defendant
upon such admission, and, where part only of the
claim has been admitted, shall dismiss the suit
so far as it relates to the remainder.
9. Decree against plaintiff by default bars
fresh suit.- (1) Where a suit is wholly or partly
dismissed under rule 8, the plaintiff shall be
precluded from bringing a fresh suit in respect
of the same cause of action. But he may apply
for an order to set the dismissal aside, and if
he satisfies the Court that there was sufficient
cause for his non-appearance when the suit was
called on for hearing, the Court shall make an
order setting aside the dismissal upon such terms
as to costs or otherwise as it thinks fit, and
shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule
unless notice of the application has been served
on the opposite party.
14. No decree to be set aside without notice to
opposite party.- No decree shall be set aside on
any such application as aforesaid unless notice
thereof has been served on the opposite party.
(emphasis supplied by italics)
7. A reading of these provisions show that when
the Suit is dismissed when both the parties fail to
appear it may be restored upon the satisfaction of the
Court for the reason of non appearance and application
for restoration would be filed by the Plaintiff alone.
The Court has to be satisfied of the non appearance.
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The matter is between the Plaintiff and the Court. If
the Defendant has also not appeared when the Suit was
dismissed there is no provision for even notifying the
Defendant of the application for restoration of the
Suit. [See. Ramjilal Vs. Kesheo Ram & Anr. 64 IC 767=
AIR 1923 Oudh 55]
8. However when the Defendant appears and the
Plaintiff does not appear and the Suit is dismissed
and the application for restoration is made, notice
has to be given to the Defendant of the application
for restoration because the Defendant had appeared and
had knowledge of the dismissal of the Suit.
9. Similarly when the Plaintiff appears and the
Suit is decreed ex parte and that decree has to be set
aside by the Defendant notice has to be given to the
Plaintiff because the Plaintiff had appeared and had
knowledge of the decree.
10. This is the case when neither party had
appeared when the Suit was dismissed. It could have
been simplicitor restored to file to be heard on
merits. Of course the Court would give fresh notice
to the Defendant for being heard on merits if the
Defendant does not appear after the Suit is restored
to file.
11. It may be mentioned that despite these
provisions which are specific with regard to the
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(6) AO 589/11
notice to the opposite party by way of practice and
for the sake of interest of justice parties are called
upon to serve every application taken out by them to
the opposite party. Consequently the Notice of Motion
taken out by the Respondent for restoration of their
Suit was served upon the Appellant and the Appellant
was to be heard though that was not a mandatory
requirement under the Code of Civil Procedure.
12. It is correct that the Notice of Motion
served upon the Appellant
ig was adjourned from
26.04.2010 to 02.07.2010. It was indeed heard and
disposed of before that date and hence the Appellant
herein was not heard. The Appellant has not applied
for being heard on merits of that application. The
Appellant simplicitor sought to get that order set
aside. Even in this Appeal the Appellant has not
offered for being heard on merits of the application
for restoration of the Suit. The Appellant
simplicitor claims that the Appeal be allowed and the
order of restoration be set aside so that the Suit
remains dismissed.
13. How the order of restoration came to be
passed is, therefore, required to be noted. It was
upon an application which was served upon the
Appellant. The order was passed upon payment of
costs. All that the order did was to allow the
parties to be heard on merits. It is the most
equitable order of the kind. If the delay of five
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(7) AO 589/11
years resulted in the Appellant acting upon the order
of dismissal to alter the position of the parties that
would be seen when the case of the parties is heard on
merits. Though that is the contention, it has not
been shown how the Appellant acted upon the said
order. Setting aside the order of restoration without
the Appellant showing how it has acted upon the order
of dismissal is most inequitable and even improper.
The vehemence of the Appellant not to proceed on the
merits of the case, speaks much of such inequity.
Consequently the ig rejection of the Appellant’s
application resisting the restoration of the Suit for
it to be heard on merits is just and equitable. It
does not deserve to be interfered with even if the
Appeal was maintainable. The Appeal is, therefore,
dismissed with costs of Rs.10,000/-.
14. The Civil Application is disposed of
accordingly.
(ROSHAN DALVI, J.)
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