IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12/04/2002
CORAM
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
C.R.P.No.2483 of 1996 and Tr.CMA No.8379 of 2002
1. The Manager
Personal Banking Division
State Bank of India
Madras Main Branch
Madras 600 001.
2. Branch Manager
State Bank of India
Saidapet Branch
Madras 600 015.
3. Regional Manager
State Bank of India
Regional Office Petitioners in CRP &
Madras 600 001. .. Appellants in Tr.CMA
Vs.
P.S. Maragatham .. Respondent in CRP &
Tr.CMA.
Revision and Appeal against the order dated 19.9.1996 made in I.A.
No.1020 and 1019 of 1995 on the file of the City Civil Court, Madras.
!For Petitioners and
Appellants : Mr.R. Sreekrishnan
^For Respondent : Mr.S.A. Hafiz
:O R D E R
The petitioners in the revision and the appellants in the
appeal are the defendants in O.S.No.4423 of 1987 on the file of the learned IV
Assistant City Civil Judge, Madras, laid by the respondent for passing a
decree and judgment based on the three fixed deposits that were alleged to
have been matured on 13.2.1987, 15.2.1987 and 8.2.1987.
2. For the purpose of convenience, parties are referred to as per
their rank in the suit.
3. The suit filed by the plaintiff, viz. O.S.No.4423 of 1987 was
dismissed for default on 13.7.1990. Hence, the plaintiff filed I.A. No.18390
of 1990 for restoration of the suit under Order IX, Rule 9, CPC. The learned
IV Assistant City Civil Judge, Madras, allowed I.A. No.18390 of 1990 and
restored the suit on 27.2.1992. Thereafter, an exparte decree was passed in
the above suit on 29.1.1993, pursuant to which the plaintiff initiated
execution proceedings in E.P.No.3469 of 1993. After service of notice in the
execution proceedings, the defendants, on 25.1.1995, filed two applications,
viz. I.A.No.1019 and 1020 of 1995 to set aside the exparte decree dated
29.1.1993 made in O.S.No.4423 of 1987 and to set aside the order dated
27.2.1992 restoring the suit, respectively, contending that they had not been
served with notice in I.A.No.18390 of 1990, which is mandatory under Order IX,
Rule 9, CPC.
4. The above applications were resisted by the plaintiff on the
ground that when the defendants initiated execution proceedings in E.P.
No.371 of 1991 for executing the cost awarded when the suit was dismissed for
default on 13.7.1990, the said execution proceedings was closed by the
Execution Court based on the representation made by the plaintiff that the the
defendants had the knowledge about I.A.No.18390 of 1990, filed by the
plaintiff to restore the suit in I.A.No.18390 of 1992.
5. Accepting the case of the plaintiff, the Court below, by order
dated 19.9.1996, dismissed both I.A.Nos.1019 and 1020 of 1995 to set aside the
exparte decree dated 29.1.1993 made in O.S.No.4423 of 1987 and to set aside
the order dated 27.2.1992 oring the suit, respectively.
6. Aggrieved by the order dated 19.9.1996 made in I.A.No.1019 of 199
5, the defendants filed Tr.CMA No.8379 of 2002 and CRP No.2483 of 199 6
against the order dated 19.9.1996 made in I.A.No.1020 of 1995. Hence, the
above revision and appeal.
7. The learned counsel for both sides reiterated the submissions that
were advanced before the Courts below.
8. After careful consideration of the submissions of both sides, I am
obliged to decide whether the knowledge of the pendency of I.A.No.1 8390 of
1990 filed by the plaintiff for restoration of the suit dismissed for default
on 13.7.1990 is sufficient for the compliance of Order IX, Rule 9(2), CPC,
with regard to notice of the application for restoration?
9. In this regard, I am obliged to refer Order IX, Rule 9, CPC, which
reads as follows:
Decree against plaintiff by default bars fresh suit.
9.(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.” (Emphasis supplied)
10. Order IX, Rule 9(2), CPC, referred to above, makes it clear that
the notice of an application for restoration to the opposite party is
mandatory. To verity the fact whether notice was given by the plaintiff to
the defendants in I.A.No.18390 of 1990 for restoring the suit which was
dismissed for default on 13.7.1990, this Court directed the Registry to call
for the entire original records, and the records were produced before this
Court accordingly.
11. A perusal of the records relating to the suit clearly shows that
no notice of the application in I.A.No.18390 of 1990 was served on the
defendants before restoring the suit on 27.2.1992. If that be so, no order
shall be made in I.A.No.18390 of 1990 to restore the suit which was dismissed
for default on 13.7.1990, as per Order IX, Rule 9(2), CPC. Therefore, I am of
the considered opinion that the order of restoration dated 27.2.1992 is
illegal and contrary to Order IX, Rule 9(2), CPC. Consequently, question of
passing an exparte decree in the suit on 29.1.1993 itself does not arise.
Hence, the exparte decree dated 29.1.1993 made in O.S.No.4223 of 1987 is also
liable to be set aside. Both the revision and the appeal are, therefore,
allowed.
12. Since the learned counsel for the revision petitioners, taking
notice in I.A.No.18390 of 1990, has no objection for restoring the suit, the
above suit stands restored on the file of the learned IV Assistant City Civil
Judge, Madras, with a direction to try the suit and pass appropriate decree
and judgment within three months from the date of receipt of a copy of this
order.
In the result, the revision and the appeal are allowed. No costs.
CMP No.3550 of 22002 and Tr.CMP No.379 of 2002 are closed.
Kpl
12.4.2002.
To
The Registrar
City Civil Court
Madras.
P.D. DINAKARAN, J.
CRP No.2483 of 1996 &
Tr.CMA No.8379 of 2002.
12.4.2002.
