Allahabad High Court
Abbas vs Petamber @ Premdas Fatirul Akl on 15 March, 2021
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- MISC. SINGLE No. - 6755 of 2021
Petitioner :- Abbas
Respondent :- Petamber @ Premdas Fatirul Akl
Counsel for Petitioner :- Suraj Narain Srivastava
Hon'ble Mrs. Sangeeta Chandra,J.
(1) Heard the learned counsel for the parties and perused the record.
(2) This petition has been filed challenging the order dated 26.02.2021 passed by the learned Additional District Judge, Court No.4, Barabanki, on Application No.Ga-8 filed by the petitioner objecting to the maintainability of the Miscellaneous Civil Appeal No.57/2018 (Pitamber @ Premdas Vs. Abbas).
(3) It has been submitted by the learned counsel for the petitioner Shri Suraj Narain Srivastava, that the opposite party no.1 through his next friend i.e. his wife filed a Suit No.69/1997 (Pitamber @ Premdas Vs. Abbas) on 03.02.1997 before the learned Civil Judge (Junior Division), Barabanki, praying for permanent injunction against the petitioner and for cancellation of sale deed dated 25.07.1996 executed in favour of the petitioner. It was submitted that he was of unsound mind when he executed the sale deed on 25.07.1996. The Suit No.69/1997 was dismissed for want of prosecution on 22.05.2008 by the learned Trial Court. The Opposite party no.1 filed an application under Order 9 Rule 9 read with Section 151 of CPC and Section 5 of the Limitation Act on 02.08.2008 which was registered as Miscellaneous Case No.41/2008. The plaintiff prayed for recall of order dated 22.05.2008 on the ground that when the case was fixed on 22.05.2008 for disposal of Application No. Ka-93, the Opposite party no.1 felt ill as a result whereof his wife Savitri who was doing pairvi could not reach in time to the Court. When the opposite party no.1 felt better his wife Savitri Devi contacted the counsel for the plaintiff on 01.08.2008 and came to know of the dismissal of the Suit for non-prosecution.
(4) The petitioner filed his objection on 30.10.2010 saying that the application for recall of order under Order 9 Rule 9 read with Section 151 of the CPC and Section 5 of the Limitation Act had been filed on misconceived grounds and attempt was made at misleading the learned Trial Court. The objection of the petitioner was accepted and the application rejected by the learned Trial Court by a detailed order on 14.11.2018. The Opposite party filed an Appeal against the order dated 14.11.2018 under Order 43 Rule (c) of the CPC stating that the applicant had failed to attend the Trial Court only once on 25.02.2008 and taking several other grounds.
(5) It has been argued that the petitioner moved an application/objection numbered as Paper No.Ga-8 on 16.02.2021 in the said Miscellaneous Civil Appeal raising an objection that the order dated 14.11.2018 passed by the learned Trial Court is in fact the order passed under Section 5 of the Limitation Act rejecting the ground taken for Condonation of delay, as a consequence whereof the Order 9 Rule 9 application has been rejected and against such order no appeal lies under Order 43 Rule 1 (c), as there is no decision on the merits of the application but the rejection is only on the grounds of delay not being properly explained.
(6) It has been argued that the learned Additional District Judge, Barabanki, rejected the objection of the petitioner by his order dated 26.02.2021 impugned in this petition on misconceived ground without looking into the judgments cited by the petitioner namely [2008 (3) ARC 362] Shiv Sharan Lal Gupta and Another Vs. Usha Kiran Gupta (Smt.) and Others.
(7) Learned counsel for the petitioner has brought to the notice of this Court the judgment cited before the learned Additional District Judge, namely Shiv Sharan Lal Gupta and another (supra). It has also been filed as Annexure-9 to this petition to say that the fact in the said judgment of the High Court were similar to the facts of the case before the Additional District Judge but the Additional District Judge has wrongly distinguished the case.
(8) This Court has gone through the judgment of Shiv Sharan Lal Gupta and another (supra) filed as Annexure-9 to the petition which is a judgment arising out from the First Appeal From Order, by a Division Bench wherein the Court was considering the Appeal arising out of an order passed by the Civil Court, on 23.05.2007 by which the application of the appellant Shiv Sharan Lal Gupta under Section 5 of the Limitation Act had been rejected and consequently under Order-9 Rule 13 of the CPC was also rejected holding it to be barred by time. It is apparent from a perusal of the judgment of the Division Bench of this Court that it was rendered in a case where the Order 9 Rule 13 application was rejected.
(9) Learned counsel for the petitioner has submitted that an Order 9 Rule 9 application is identical to the application under Order 9 Rule 13 of the CPC, this Court is not convinced.
(10) Learned Standing Counsel Shri Hemant Kumar Pandey, has pointed out the Section 12 of the CPC wherein a bar is created for subsequent filing of a Suit in respect of any cause of action, in case the same is barred by the Rules as mentioned in the Court. Shri Pandey has also pointed out Order 9 Rule 9 of the CPC where it has been provided that if the Suit is dismissed under Rule 9, the plaintiff shall be precluded from bringing a fresh Suit in respect of the same cause of action, but he can apply for an order to set the dismissal aside, and if he satisfied 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 after hearing all the parties to the Suit.
(11) It has been submitted by Shri H.K. Pandey, that the legislature intended that an Order 9 Rule 9 application to be treated differently from an Order 9 Rule 13 application, therefore, under Order 43 Rule 1 the enumeration of orders from which the Appeal would lie refers to an order rejecting application under Order 9 Rule 9 under Sub clause (cc), whereas it refers to an order rejecting an application under Order 9 Rule 13 in Sub Clause (d).
(12) This Court has perused the order passed by the Additional District Judge on 26.02.2021 on application of the petitioner rejecting his objections to the maintainability of the Appeal. This Court finds that the Appellate Court's order specifically mentions that plaintiff moved a composite application Paper No.Ka-3 moved under Order 9 Rule 9 with Section 151 of the CPC and Section 5 of the Limitation Act. The said application on rejection would amount to an order passed under Order 43 Rule 1 (c) of the Code, therefore, he has held the Appeal to be maintainable.
(13) Learned counsel for the petitioner has placed reliance upon the Supreme Court decision in Ratan Singh Vs. Vijay Singh and Others reported in (2001) 1 SCC 469. This Court has carefully perused the judgment cited by the learned counsel for the petitioner and finds that it relates to the merits of the case set up by a litigant for getting the order of the learned Trial Court set aside and also says that the reasons should be sufficient for a person to get the benefit of Section 5 of the Limitation Act.
(14) This Court finds that the judgment cited by the learned counsel for the petitioner is inapplicable as the order impugned passed by the Additional District Judge has only held that the Appeal is maintainable. There is no order on the merits of the case of the appellant by the learned Additional District Judge which are yet to be decided by him after hearing the parties.
(15) The writ petition stands dismissed. No order as to costs.
Order Date :- 15.3.2021
PAL
