Rajasthan High Court
Kunwar Pal S/O Late Shri Prabhu ... vs Deendayal S/O Shri Fattelal on 7 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Restoration Application No. 206/2019
In
S.B. Civil Restoration Application No. 423/2018
In
S.B. Civil First Appeal No. 157/2010
1. Kunwar Pal S/o Late Shri Prabhu Datt, Aged About 54 Years,
R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
2. Purushottam Urf Tunda S/o Late Shri Prabhu Datt (Deceased),
R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
(Swargwas Date 13.07.2015) Through Legal Heirs And
Representatives
2/1. Smt. Gomti Devi W/o Late Shri Purushottam Urf Tunda, Aged
About 44 Years, R/o Nibhera, Tehsil Roopwas, District
Bharatpur (Raj)
2/2. Devendra S/o Late Shri Purushottam Urf Tunda, Aged About
23 Years, R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
2/3. Somdutt S/o Late Shri Purushottam Urf Tunda, Aged About 19
Years, R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
2/4. Om Dutt S/o Late Shri Purushottam Urf Tunda, Aged About 17
Years, Minor Through Mother Smt. Gomati Devi W/o Late Shri
Purushottam Urf Tunda, R/o Nibhera, Tehsil Roopwas, District
Bharatpur (Raj)
3. Krishan Datt Urf Kalua S/o Late Shri Prabhu Datt, Aged About
43 Years,R/o Nibhera, Tehsil Roopwas, District Bharatpur (Raj)
----Petitioners
Versus
1. Deendayal S/o Shri Fattelal, R/o Nibhera, Tehsil Roopwas,
District Bharatpur (Raj)
2. Prabhudatt S/o Shri Fattelal, R/o Nibhera, Tehsil Roopwas,
District Bharatpur (Raj) (Swargwas Date 15.01.2013 And
Name Deleted In Cause Title Through Vide Order Dated
20.04.2015 In Civil First Appeal No. 157/2010
3. Smt. Khemwati D/o Late Shri Fattelal W/o Shri Suresh Chand,
R/o Suroth, Tehsil Hindon, District Alwar (Raj)
4. Smt. Satyawati D/o Late Shri Fattelal W/o Shri Ramesh Chand,
R/o Mohalla Bhoorameer, Kama, Tehsil Kama, District
Bharatpur (Raj)
----Respondents
For Petitioner(s) : Mr. R.M. Jain
For Respondent(s) : Mr. Sanjay Sharma
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
Reportable
07/04/2022
(2 of 10) [CRES-206/2019]
1. In order to meet out the defect pointed out by office for
mismatch of parties in the restoration application No.206/2019
with parties in original restoration application No.423/2018 and
first appeal No.157/2010 is concerned, the applicants-appellants
have filed an application dated 10.06.2019, purportedly under
Section 151 CPC alleging inter alia that applicant No.2 namely
Purushottam had passed away on 13.07.2015 during pendency of
first appeal. However, this fact was not brought on record and due
to inadvertent error, appropriate application to bring the factum of
his death and his LRs on record could not be filed in first appeal as
also in restoration application No.423/2018.
2. It has been alleged that since thereafter, the first appeal was
dismissed on 08.07.2016 due to non-compliance of peremptory
order dated 27.04.2016, hence, restoration application
No.423/2018, which was filed with some delay. The restoration
application too was dismissed due to non-presence of counsel for
applicants on 30.04.2019, hence, in second restoration
application, the factum of death of applicant No.2 -Purushottam
has been brought on record, which fact may be taken on record
and his legal representatives may be allowed to be substituted in
his place.
3. The present restoration applications arise out of civil first
appeal involving the dispute between parties in relation to
partition of immovable properties.
4. For reasons mentioned in application and mentioned
hereinabove, the delay in filing application is condoned and legal
representatives of deceased applicant No.2 are allowed to be
substituted, the present restoration application. The applicants
have already filed the present restoration application with
(3 of 10) [CRES-206/2019]
impleadment of legal representatives of deceased applicant No.2,
hence, office objection stands meet out in view of allowing the
application and same is overruled.
5. With consent of counsel for both parties, heard on both
restoration applications bearing Nos.206/2019 and 423/2018.
6. It appears from record that applicants have filed one Civil
First Appeal No.157/2010, assailing judgment and preliminary
decree for partition dated 06.03.2010. The first appeal was
admitted for hearing vide order dated 16.04.2010 and notices
were issued to respondents. Out of four respondents, notice on
respondent No.1-plaintiff Deendayal had been served and he had
put in appearance through an Advocate. Proceedings on filing of
first appeal were pending at the stage of filing of PF and notices
for unserved respondent Nos.3 and 4. On the notice of respondent
No.2, report was received that he had passed away. At that stage,
this Court passed a peremptory order dated 27.04.2016 for filing
PF and notices for unserved respondents and it was observed that
if applicant-defendant failed to file required PF and notices, appeal
would stand dismissed without further reference to the Court. It
appears that applicant-appellant could not file required PF and
notices within prescribed time. Accordingly, the first appeal was
dismissed on 08.07.2016 pursuant to non-compliance of the
peremptory order dated 27.04.2016.
7. Thereafter, applicants filed a restoration application
No.423/2018 on 29.06.2018. Since, there was some delay in filing
restoration application, separate application under Section 5 of the
Limitation Act was also filed seeking condonation of delay. This
Court, vide order dated 15.01.2019 issued notices on the
application under Section 5 of the Limitation Act before
(4 of 10) [CRES-206/2019]
considering the restoration application of applicant on merits. It
appears from record that notices of Section 5 of the Limitation Act
were served on respondent No.1-plaintiff and he had appeared
before the Court, however, restoration application was dismissed
vide order dated 30.04.2019 due to non presence of counsel for
applicants. It may be observed that on 30.04.2019, no one
appeared on behalf of respondent No.1-plaintiff as well.
8. Since, the restoration application No.423/2018 was
dismissed due to non appearance of counsel on behalf of
applicants on 30.04.2019, another fresh restoration application
No.206/2019 has been filed seeking restoration of their restoration
application No.423/2018 which was dismissed due to non
appearance. This second restoration application is within time
limit.
9. In the present restoration application No.206/2019, counsel
for non-applicant No.1-plaintiff has also appeared.
10. The issue falls for consideration by this Court is that whether
the application for restoration No.206/2019, seeking to restore the
first restoration application No.423/2018 which was filed for
beseeching restoration of civil first appeal on its original number
for hearing on merits, can be maintained and entertained.
11. In order to dealt with the issue, few relevant provisions of
the Code of Civil Procedure, 1908 may be taken its consideration.
Order IX of CPC deals with the appearance of parties and
consequence of non-appearance. Rule 3 of Order IX provides
power to the Court to dismiss the suit in default where neither of
the party appears. Rule 4 provides that, where suit is dismissed
either under Rule 2 or Rule 3, the plaintiff may either bring a fresh
suit subject to limitation or may apply to an order to set aside the
(5 of 10) [CRES-206/2019]
dismissing order, by involving sufficient cause for his non-
appearance. Section 141 of CPC stipulates that the procedure
provided in CPC in regard to suit shall be followed, as far as it can
be made applicable, in all proceedings in any Court of civil
jurisdiction. As per Section 141 of CPC, provisions of Order IX
which is applicable on proceedings of suit are applicable to all
other proceedings before any Court of Civil jurisdiction.
Proceedings of the restoration application fall within the purview of
other proceedings pending before the Court having a civil
jurisdiction. Nevertheless, in relation to appeal, additional
provisions under Order XLI CPC have been prescribed with regard
to dismissal and for restoration of appeal under Order XLI Rule 11,
17 & 19 CPC.
12. In the present case, first appeal was filed under Order XLI
Rule 1 CPC read with Section 96 of CPC invoking civil jurisdiction
of first Appellate Court under the Code of Civil Procedure. After
dismissal of first appeal on account of non-compliance of
peremptory order (not on merits), the restoration application to
restore the first appeal was filed under Order XLI Rule 19 CPC.
Since the restoration application too was dismissed due to non
appearance of counsel for applicants, and on that day no one
appeared for non-applicant No.1 despite service, hence, the
restoration application No.423/2018 was dismissed in default, due
to non-appearance of both parties on 30.04.2019. The application
seeking order of dismissal dated 30.04.2019, set aside by
recalling the same to restore the original restoration, restoration
application has been filed within time on 28.05.2019. There is no
specific provision under the Code of Civil Procedure to file an
application seeking restoration of the restoration application, if the
(6 of 10) [CRES-206/2019]
previous restoration is dismissed in default and due to non-
appearance. In the opinion of this Court, in such eventuality,
parties may not be left remedy less and cannot be debarred to get
adjudicate their dispute on merits by disallowing restoration of the
original dispute. Since it is no in dispute from the record that the
original restoration application was dismissed in default due to
non-appearance of either of the parties, by virtue of Section 141
CPC, such restoration application can be treated as other
proceedings pending in the Court of civil jurisdiction and its
dismissal falls within scope of Order IX Rule 3 CPC. Hence,
another application for restoration, to set aside the dismissal order
and to restore back the original restoration application can be held
maintainable under Order IX Rule 4 CPC. Nevertheless, in any
case, if such provision are treated as inapplicable on the
proceedings arise during course of appeal, then that panacea
provision of Section 151 CPC becomes applicable. It is no more
res integra that where there is no specific provision is available in
the Code of Civil Procedure to deal with any situation, the inherent
powers of Civil Court enshrined under Section 151 CPC can be
invoked, for advancement of justice. The inherent powers
enshrined under Section 151 CPC are available to all the Civil
Courts either exercising original jurisdiction or appellate
jurisdiction.
13. The Supreme Court in case of Manohar Lal Chopra Vs.
Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527], has held
as under:-
"Section 151 itself says that nothing in the
Code shall be deemed to limit or otherwise affect the
inherent power of the Court to make orders
necessary for the ends of justice. In the fact of such
(7 of 10) [CRES-206/2019]
a clear statement, it is not possible to hold that the
provisions of the Code control the inherent power by
limiting it or otherwise affecting it. The inherent
power has not been conferred upon the Court; it is a
power inherent in the Court by virtue of its duty to
do justice between the parties before it. Further,
when the Code itself recognized the existence of the
inherent power of the Court, there is no question of
implying any powers outside the limits of the Code."
14. The Supreme Court in case of Sangram Singh Vs. Election
Tribunal Kotah & Anr. [AIR 1955 SC 425] has observed as
under:-
"A code of procedure must be regarded as such.
It is procedure something designed to facilitate
justice and further its ends: not a penal enactment
for punishment and penalties; not a thing designed
to trip people up. Too technical a construction of
sections that leaves no room for reasonable elasticity
of interpretation should therefore be guarded against
(provided always that justice is done to both sides)
lest the very means designed for the furtherance of
justice be used to frustrate it. Our laws of procedure
are grounded on a principle of natural justice which
requires that men should not be condemned
unheard, that decisions should not be reached behind
their backs, that proceedings that affect their lives
and property should not continue in their absence
and that they should not be precluded from
participating in them. Of course, there must be
exceptions and where they are clearly defined they
must be given effect to. But taken by and large, and
subject to that proviso, our laws of procedure should
be construed, wherever that is reasonably possible,
in the light of that principle."
(8 of 10) [CRES-206/2019]
15. Counsel for applicant has placed reliance upon judgments
passed in case of Mysore Urban Development Authority Vs.
S.S. Sarvesh [2019 (1) WLC (SC) Civil 345] and Pralhad
Shankarrao Tajale & Ors. Vs. State of Maharashtra through
its secretary (Revenue) [2018 (1) WLC (SC) Civil 737].
16. The Supreme Court in case of Mysore Urban Development
Authority (supra), has held that the first appeal is a valuable right
of appellant and appellant may not be deprived from their valuable
right to prosecute the first appeal on merits, accordingly the first
appeal was allowed to restore for hearing on merits.
17. In case of Pralhad Shankarrao Tajale (supra), the Supreme
Court, brushed aside the hyper technicalities, allowing to restore
the review application which was dismissed for non-compliance of
Registrar's mandatory order.
18. Now it is one of the relevant factor that the original
restoration application was dismissed due to non-appearance of
the counsel for applicants, hence, default lies on the part of his
advocate. For default of appearance by advocate, bonafide and
innocent party may not be allowed to suffer.
19. The Supreme Court in case of Rafiq Vs. Munshilal [(1981)
2 SCC 788] and Ram Kumar Gupta Vs. Har Prasad [(2010) 1
SCC 391] has also observed that if we reject this appeal, the
only one who would suffer would not be the lawyer who did not
appear but the party whose interest he represented. The problem
that agitates us is whether it is proper that the party should suffer
for the inaction, deliberate omission, or misdemeanor of his agent.
The answer obviously is in the negative. Maybe that the learned
Advocate absented himself deliberately or intentionally. We have
no material for ascertaining that aspect of the matter. We say
(9 of 10) [CRES-206/2019]
nothing more on that aspect of the matter. However, we cannot be
a party an innocent party suffering injustice merely because his
chosen advocate defaulted.
20. In present case, no malafides are attributed against the
applicants neither for moving the first restoration application with
delay nor for non appearance in restoration application and
moving another application for restoration. Similarly, the another
application for restoration has also not been alleged to be suffer
from any malafides. The dispute between parties is pertaining to
partition of properties. The impugned judgment in first appeal is
the preliminary decree for partition.
21. Having considered facts and circumstances of present case
mentioned hereinabove and considering relevant provision of law
supported with judgments of Supreme Court, this Court is of the
considered opinion that the application for restoration
No.206/2019, filed for setting aside the order of dismissal dated
30.04.2019, dismissing the original application for restoration
No.423/2018 due to non-appearance and default of the counsel
for applicants is held maintainable. The applicants have assigned
the cause for non-appearance of their counsel on 30.04.2019 due
to not marking the case in cause list, which seems to be given,
uninteresting and sufficient reason to condone the non-
appearance. Otherwise also due to non-appearance of advocate,
applicants may not be allowed to suffer. The application has been
filed well within time. Thus, application for restoration
No.206/2019 deserves to be allowed, hence, allowed. As a
consequence the original application for restoration No.423/2018
becomes alive and comes for consideration.
(10 of 10) [CRES-206/2019]
22. As far as original restoration application No.423/2018 is
concerned, the applicant has shown sufficient cause supported
with affidavit seeking condonation of delay and to explain the non-
compliance of peremptory order. It has been alleged that the
peremptory order dated 27.07.2016 in the first appeal was passed
in absence of counsel for applicant which could come to
knowledge. Further applicant No.2 Purushottam was in regular
contact to counsel, since he passed away on 13.07.2015. So the
applicants came to know about the dismissal of the appeal only
when they inquired. The delay in filing restoration, does not seems
to suffer from malafides nor it is exceptional, exhorbitant and
unusual. The reasons assigned by applicant have not been denied
or opposed by respondent and no reply to the restoration
application has been filed. In that view, the delay in filing
restoration application No.423/2018 deserves to be condoned and
restoration application also deserves to be allowed.
23. Accordingly, both restoration application Nos.206/2019 and
423/2018 stand allowed. The Civil First Appeal No.157/2010 is
restored to its original number. The office may proceed accordingly
and applicants may proceed to take necessary steps in the first
appeal in accordance with law.
24. No order as to costs.
(SUDESH BANSAL),J
NITIN /36 & C-1
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