Munukurthy China Tatabbai vs Munukurty Appa Rao Bullabbai
2023 Latest Caselaw 2967 AP

   THE HON'BLE DR. JUSTICE K.MANMADHA RAO

     CIVIIL REVISION PETITION No. 1129 OF 2019


ORDER:

This Civil Revision Petition is filed under Article 227 of

Constitution of India, aggrieved by the order in I.A.No.30 of

2018 in I.A.No.457 of 2016 in O.S.No.247 of 2015, dated

22.02.2019 passed by the Principal Junior Civil Judge Cum

Judicial Magistrate of First Class, Yellamanchili.

2. The brief facts of the case are that the petitioner

herein is the respondent/defendant and the respondent herein

is the petitioner/plaintiff, who filed the suit in O.S.No.247 of

2015 for specific performance of agreement of sale before the

Court of Principal Junior Civil Judge Cum Judicial Magistrate of

First Class, Yellamanchili (for short "trial Court"). The said suit

was dismissed for default on 29.07.2017, as such, the

respondent filed I.A.No.457 of 2016 under IX Rule 9 of the

CPC and the same was also dismissed for default on

29.12.2017 for non-payment of costs. Thereafter, on

04.01.2018 the respondent filed the I.A.No.30 of 2018, for

restoration of I.A.No.457 of 2016 by contending that on

29.12.2017, as he fell sick, he unable to comply the condition

imposed by the Court. After hearing both sides, the trial

Court allowed the said application, on payment of costs of

Rs.1000/- to the petitioner herein. Challenging the said

order, the present Civil Revision Petition came to be filed by

the petitioner/respondent.

4. Heard Sri Ramana Allu, learned counsel for the

petitioner and Sri B.Shaik Mohd Aquib Hussain, learned

counsel for the respondent.

5. During hearing, the learned counsel for the

petitioner submits that the respondent filed the I.A.No.30 of

2018 under order IX Rule 9 and r/w. Section 151 of the

C.P.C., thereby, praying to restore the dismissal order dated

29.12.2017 and the said provision arise only where the suit

exists that is pending, but here no such suit is pending as it

was dismissed for default at the stage of processing of

notices, hence, said provision is not applicable to the present

case. At first instance the suit was posted for fresh summons

on 29.04.2016, but the respondent intentionally failed to

process the same within stipulated period. Again the same

was posted to 08.06.2016, even on the date, the respondent

failed to pay process, as such, the suit is liable to dismissed

for default. Subsequently, the respondent filed an application

for restoration of the suit vide I.A.No.457 of 2016 and the

same was also dismissed for default on 29.12.2017, so he

filed I.A.No.30 of 2018, it appears that to drag on the matter

for years and years and the respondent takes plea that on the

date of adjournment, he fell sick, but he did not produce any

documents and prays this Court to allow this Revision Petition.

In support of his contentions, he relied upon the following

judgments: -

(1) D.Devadanam Vs. M.Jnana Prakasam and

another1 wherein the Hon'ble Apex Court held that:

"In the present case, the plaintiff admittedly did not pay the necessary charges for sending the summons even when the suit was dismissed. In other words, his default continued for a period of more than 3 months from the date of the order of the court. It must therefore, be held that the dismissal of the suit was under Rule 5 and not under Rule 2 of Order IX CPC and for that reason, the petition for restoration is not competent in law."

CRP 1289 OF 1975

(2) Vishwanath Satwaji Gaikwad Vs. Laxman

Abaji Kawale and others2 Wherein the Bombay High Court

held that: -

"17. It is already pointed out that the application presented by the plaintiff for setting aside the order of dismissal of the suit as against defendant No. 2 is not disclosing any reasonable or sufficient cause. On the contrary, it clearly indicates that the plaintiff had altogether neglected to take proper steps within the prescribed period. So, from factual aspect also, in the present case, the Court had no ground to exercise inherent jurisdiction. The application, therefore, was rightly rejected by the learned Civil Judge."

6. On the other hand, the learned counsel for the

respondent submitted that due to illness on the date of

adjournment, he unable to attend to the Court to obey the

order and he has good grounds to succeed in his case and he

also paid entire consideration to purchase the schedule

property, in spite of several requests, the petitioner did not

AIR 2000 BOMBAY 307

come forward to execute registered sale deed, hence, prays

to dismiss the Revision Petition.

7. The contention of the petitioner herein is that the

respondent filed petition under IX Rule 4 CPC vide I.A.No.457

of 2016 in O.S.No.247 of 2015, which is not at all

maintainable as Order IX Rule 5 (1) of the CPC is directory

and mandatory procedure. So, if any petition is dismissed for

default on failure of payment of Batta, then petition should file

under Order IX Rule 5 (1) of the CPC, then Order 5 (2) of the

CPC.

In view of contention raised by the petitioner, it is

mandate to extract the provision under Order IX Rule 5 (1) of

the CPC:

Order IX Rule 5 CPC - Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons.

Order 9 Rule 5 of Code of Civil Procedure 1908

- Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons

(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of seven days from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such

defendant, unless the plaintiff has within the said period satisfied the Court that-

(a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

In the instance case, on perusal of the petition in

I.A.No.30 of 2018, the respondent filed petition under

order IX Rule IX and Section 151 of the CPC, instead of

order IX Rule 5 of CPC. As such, the petition filed by the

respondent is not at all maintainable under Order IX Rule

9 CPC.

8. Further, it is the case of the respondent in

I.A.No.30 of 2018 that the trial Court posted the matter

for hearing on 29.12.2017 on costs of Rs.100/-, but he

could not attend before the trial Court due to ill health,

as such, the trial Court dismissed the said application for

default. In I.A.No.457 of 2016 also, the respondent

taken same stand of ill health for prosecuting his case,

resulting which, the petition is dismissed for default. On

perusal of record, the respondent taken common ground

ie., ill health in prosecuting his case in the suit as well as

petition. The common ground taken by the respondent/

plaintiff in both the petitions i.e., ill health is not at all

acceptable, because it is not the denial of the

respondent/plaintiff that he does not know the status of

the case. Though, he is having knowledge that the suit

is coming for payment of batta to the petitioner/

defendant, he pleaded that he is unable to give

instructions to his counsel is not a justifiable ground,

because now a days, the technology has been developed,

if really the respondent is having interest in prosecuting

his case, he could make a phone call to his counsel to

pay batta to the petitioner and it is known to all that no

signature or thumb impression of the respondent/plaintiff

is required on batta to the defendant. It demonstrates

there is gross negligence on the part of the respondent in

prosecuting his case.

9. In view of the facts and circumstances of the

case and considering the judgments referred supra, this

Court opines that the respondent/plaintiff had altogether

neglected to take proper steps and did not file the

petition in I.A.457 of 2016 under correct provision of law

and the learned trial judge without observing the issues,

decided the matter in favour of the respondent,

therefore, the interference of this Court warranted by

setting aside the orders in I.A.30 of 2018, passed by the

trial Court.

10. In the result, this Civil Revision Petition is

allowed. The order in I.A.No.30 of 2018 in I.A.No.457 of

2018 in O.S.247 of 2015 is passed by the trial Court is

hereby set aside. There shall be no order as to costs.

Miscellaneous Petitions pending, if any, in this case

shall stand closed.

____________________ DR.K.MANMADHA RAO, J 09.05.2023 MNR

THE HON'BLE DR. JUSTICE K.MANMADHA RAO

CIVIL REVISION PETITION No. 1129 OF 2019

09.05.2023

MNR