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

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

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

AIR 1966 Orissa 232

1989 SCC OnLine AP 326

2006(1)KARLJ566 : ILR2006KAR983

(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

W.P.No.13878/2018 (GM - CPC) dt.31.05.2018

CRP No.100101/2016 dt.19.08.2017

W.P.No.7085 of 2024 (GM - CPC) dt.13.03.2024

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

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

AIR 1951 Orissa 266

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