Telangana High Court
K.Eshwaramma vs Mohammed Amanullah Khan on 28 June, 2024
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
CIVIL REVISION PETITION NO.1211 OF 2024
ORDER
This Civil Revision Petition is filed against the Docket order dt.29.02.2024 in I.A.No.2013 of 2023 in O.S.No.54 of 2020 on the file of the Junior Civil Judge at Zaheerabad restoring the suit against defendants 3, 4 and 6 to 8 by setting aside the order dt.05.11.2021 as being passed without issuing any notice to the defendants and therefore being against the rules and being in violation of principles of natural justice.
2. Learned counsel for the petitioner submitted that the suit in O.S.No.54 of 2020 was filed by the respondents/plaintiffs for partition and the petitioner herein is the defendant No.3 in the suit. It is submitted that the suit was dismissed on 05.11.2021 against defendants 3, 6 and 8 to 10 for want of payment of process. The plaintiffs had thereafter filed an application for setting aside the ex parte order along with a petition to condone delay of 22 days in I.A.No.408 of 2021 and the same was allowed by the trial Court on payment of costs of Rs.4,000/-. The C.R.P.No.1211 of 2024 2 petitioner herein/defendant No.3 has challenged the said order by filing a Civil Revision Petition No.446 of 2024 before this Court. The petitioner, therefore, has filed a Memo before the trial Court on 29.02.2024 to defer the hearing of the suit. It is submitted that the trial Court, instead had permitted the plaintiffs to deposit the costs in Mandal Legal Service Committee, Zaheerabad, Sangareddy District and also observing that there are no speaking orders in the C.R.P., has directed the office to restore the suit against defendants 3, 4 and 6 to 8 by allowing I.A.No.2013 of 2023. The Docket order in I.A.No.2013 of 2023 dt.29.02.2024 restoring the suit is under challenge in this C.R.P.
3. Learned counsel for the petitioner submits that though the suit was dismissed for non-payment of process, the petition for restoration of the suit was filed under Order 9 Rule 4 of CPC and under the said provision, though there is no requirement for issuance of notice to the defendants, but allowing the restoration of the suit without issuing notice is violative of principles of natural justice and hence not in accordance with law. In support of this contention, he placed reliance upon the judgment of the Orissa High Court in the case of Prahlad C.R.P.No.1211 of 2024 3 Pursty Vs. Sheokh Abdul Rahman 1, wherein the High Court of Orissa has considered the provisions of Order 9 Rule 4 of CPC and also whether service of notice is mandatory in setting aside such an order under Order 9 Rule 4 of CPC and it was held that Rule 14 of Order 9 of CPC is to be applied even in case of suit being dismissed and a petition is filed for restoration of the suit under Order 9 Rule 4 of CPC. He submitted that in similar circumstances, the A.P. High Court, as it then was, in case of Dasina Neelamma and others Vs. Dasina Kanakamma and another2 has also held that service of notice is necessary. He therefore prayed that the impugned order dt.29.02.2024 be set aside.
4. Learned counsel for the respondents/plaintiffs, however, supported the impugned order and submitted that under Order 9 Rule 4 of CPC, there is no provision for issuance of notice and therefore, the impugned order needs no interference. He relied upon the following judgments of the Karnataka High Court in support of his contention.
(1) V. Narayanaswamy Vs. Smt. Dodda Venkatamma and others 3 1 AIR 1966 Orissa 232 2 1989 SCC OnLine AP 326 3 2006(1)KARLJ566 : ILR2006KAR983 C.R.P.No.1211 of 2024 4 (2) Smt. Byamma Vs. D.Sundara Rami Reddy 4 (3) Smt. Shailaja Vs. Manohar Shamu Metri 5 (4) Sevya Naik Vs. Smt. Gopi Bai 6.
5. Having regard to the rival contentions and the material on record, this Court finds that the petition entertained by the trial Court is under Order 9 Rule 4 read with Section 151 of CPC. For the sake of ready reference, Order 9 Rule 4 of CPC is reproduced hereunder:
"Order IX Appearance of Parties and Consequence of Non-
appearance.
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 make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."
6. Rule 14 of Order 9 of CPC reads as under:
"14. No decree to be set aside without notice to opposite party.--No decree shall be set aside on any such 4 W.P.No.13878/2018 (GM - CPC) dt.31.05.2018 5 CRP No.100101/2016 dt.19.08.2017 6 W.P.No.7085 of 2024 (GM - CPC) dt.13.03.2024 C.R.P.No.1211 of 2024 5 application as aforesaid unless notice thereof has been served on the opposite party."
Therefore, Rule 14 of Order 9 of CPC refers to restoration of decrees, only after serving notice on the opposite party.
7. Though principles of natural justice are strictly not applicable to the proceedings before the Civil Court and the impugned order is passed under Order 9 Rule 4 of CPC, this Court is of the opinion that they would apply in this case as a right has accrued to the defendants as they have already put in appearance and have also contested the condone delay petition filed by the plaintiffs for condoning the delay in filing the petition for restoration of the suit which was dismissed for non-payment of process. If any order, which is in favour of the defendants, needs to be set aside, it is but necessary that the opposite party be given a notice. It is also an admitted fact that the petition under Order 9 Rule 4 of CPC was filed along with the application for condonation of delay and the delay has been condoned and the C.R.P. was also contested before this Court and that defendant No.3 is aware of the petition filed under Order 9 Rule 4 of CPC. Therefore, before the petition is taken up by the trial Court, the trial Court having allowed the process to be paid, ought to C.R.P.No.1211 of 2024 6 have given the defendant No.3, i.e., the petitioner herein, an opportunity of hearing.
8. The judgment of the Orissa High Court in the case of Prahlad Pursty Vs. Sheokh Abdul Rahman (1 supra) is after considering the judgment of the earlier judgment of the same High Court in the case of Ratnakar Ray Vs. Kulamoni Ray 7, wherein it was held as under:
"If the suit had not been set down ex parte against them and if they were going to be bound by the order of restoration that had been passed, I do not understand how any order affecting them could be passed in their absence. Some support is prayed in aid from the absence of a provision in the terms or the like of Sub-rule (2) of Rule (9) of the order from Rule 4. But that does not necessarily mean that in any default under Order IX, Rule 3, restoration can be had in the absence of the opposite parties. There can be a case in which defendant has not at all appeared or having appeared has not filed any defence. In such cases it is quite possible that the Court, in its discretion, may say that no notice is necessary to be served upon him in the matter of restoration, as he must be served again after the suit is restored to its file. But what about the case in which the defendant had entered into contest and had put the plaintiff to proof of his case?
In these cases certainly the dismissal of the plaintiffs' suit, be it under whatever provision of the Code, gives rise to a valuable right in his favour. It is difficult to conceive that they can be deprived of that right without being heard. It may be said even without restoration the plaintiff has a right to fresh suit on the same cause of action. It may 7 AIR 1951 Orissa 266 C.R.P.No.1211 of 2024 7 be-so, but that does not answer the defendants cause. It may be for the purpose of a fresh suit lot of money is necessary by way of payment of court-fees and the plaintiff may not be able to institute a fresh suit. There is always many a slip between cup and lip. Under the circumstances, the right to prevent restoration of the suit is no doubt a valuable right."
9. The judgments of the Karnataka High Court in the cases of (1) V. Narayanaswamy Vs. Smt. Dodda Venkatamma and others (3 supra), (2) Smt. Byamma Vs. D.Sundara Rami Reddy (4 supra), (3) Smt. Shailaja Vs. Manohar Shamu Metri (5 supra) and (4) Sevya Naik Vs. Smt. Gopi Bai (6 supra) relied upon by the learned counsel for the respondents are all distinguishable on facts. They are all in respect of merits of recalling the ex parte dismissal of the suit and not as to whether the defendants in the suit were entitled to a hearing while allowing the petition filed under Order 9 Rule 4 of CPC.
10. Therefore, the order dt.29.02.2024 in I.A.No.2013 of 2023 in O.S.No.54 of 2020 on the file of the Junior Civil Judge at Zaheerabad is set aside and the trial Court is directed to issue notice to defendant No.3 before passing any order in the said I.A.No.2013 of 2023.
11. The Civil Revision Petition is accordingly allowed. No order as to costs.
C.R.P.No.1211 of 20248
12. Pending miscellaneous petitions, if any, in this CRP shall stand closed.
___________________________ JUSTICE T. MADHAVI DEVI Date: 28.06.2024 Svv