Whether the court can restore suit dismissed in default

in the exercise of inherent powers?

lawweb.in/2019/12/whether-dismissed-suit-can-be-restored.html

Overruling the view taken by the learned Single Judge of this Court and answering
the reference by declaring that Section 151 of the Code could be invoked to seek
restoration of a Suit dismissed under Sub-Rule (1) of Rule 5 of Order IX of the
Code, we lodge the caveat. The caveat would be that the Plaintiff would have to
show a sufficient cause. The previous conduct of the Plaintiff would also require to
be considered. The inconvenience and the prejudice caused to the served
defendants or the defendant who was not served as a consequence of restoration
of the Suit would also have to be kept in mind.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 896 of 2007, 7552 of 2009 and Civil Application Stamp No. 901 of 2019

Decided On: 16.10.2019

Hariba Tatyaba More Vs. Dada Ekhatnath More and Ors.

Hon'ble Judges/Coram:
Pradeep Nandrajog, C.J., M.S. Karnik and Bharati H. Dangre, JJ.

Citation: 2019(6) MHLJ 511(FB)

1. We answer the reference as framed vide order dated 10th February, 2010 in Writ
Petition No. 896 of 2007.

2. The Writ Petition was filed because Suit filed by the Petitioners was dismissed by the
learned Trial Judge on 3rd May, 2002 against Defendant Nos. 5 and 6 on account of the
failure of the Petitioners to apply for fresh summons to be served upon the said
Defendants. The Suit against said Defendants was dismissed in exercise of power under
Sub-Rule (1) of Rule 5 of Order IX of the Code of Civil Procedure, 1908. Application filed
by the Petitioners before the learned Trial Judge for setting aside the order of dismissal
dated 3rd May, 2002 was rejected vide order dated 16th August, 2003; with the reasoning
that in view of Sub-Rule (2) of Rule 5 of Order IX of the Code the only remedy of the
Petitioners was to bring a fresh Suit, a reasoning which finds sustenance from a decision
of a learned Single Judge of this Court reported as MANU/MH/0633/2000 : 2000 (4)
Mh.L.J. 498 Vishwanath Satwaji Gaikwad vs. Laxman Abaji Kavale & Ors.

3. We have heard learned Counsel for the parties.

4. The arguments in support of the law declared in Vishwanath's case (Supra) center
upon the legislative intent to be gathered from the various Rules comprising Order IX of
the Code. Order IX concerns Appearances of Parties and Consequences of Non-
appearance. As per Rule 1, on the day fixed in the summons for the defendant to appear
and answer, the parties have to be in attendance at the Court-house in person or by their
respective pleaders, and the Suit has to be heard unless the hearing is adjourned to a
future day fixed by the Court. As per Sub-Rule (2), where on the day so fixed it is found
that the summons has not been served upon the defendant in consequence of the failure
of the plaintiff to pay the Court-fee or postal charges, if any, chargeable for such service
or failure to present copies of the plaint as required by Rule 9 of Order VII, the Court may
make an order that the Suit be dismissed. As per Rule 3, when neither parties appear
when the Suit is called for hearing, the Court may make an order that the Suit be
dismissed. The right of the plaintiff pertaining to an order dismissing a Suit either under
Rule 2 or Rule 3 of Order IX is provided for in Rule 4. The said Rule gives two rights in
favour of the Plaintiff. The first right is that subject to the law of limitation the Plaintiff can
institute a fresh Suit. The second right is to apply to the Court seeking setting aside of the
order dismissing the Suit but upon the discharge of burden by the Plaintiff of satisfying
the Court that there was sufficient cause for such failure or non appearance as the case
may be. Upon being satisfied, the Court would be empowered to set aside the order
dismissing the Suit. Rule 5 requires that wherever a summons has been issued to the
defendant or to several defendants and the summons are/is returned unserved and the
Plaintiff fails for a period of seven days from the date of the return made to the Court to
apply for issuance of a fresh summons, the Court can dismiss the suit against such
Defendant unless the Plaintiff has within the said period (seven days) satisfied the Court
that he has failed inspite of using his best endeavour to discover the residence of the
Defendants or such Defendant is avoiding service of process or there is any other
sufficient cause to extend time, in which case, the Court would be empowered to extend
the time. Sub-Rule (2) of Rule 5 of Order IX provides for the consequences. It empowers
the Plaintiff to bring a fresh Suit subject to the law of limitation.

5. The contention in support of the view taken by the learned Trial Judge which gets
reinforced by the decision of a learned Single Judge of this Court in Vishwanath Satwaji
Gaikwad (Supra) is that the legislature was conscious of various circumstances or events
resulting in dismissal of a Suit. Whereas a dismissal of a Suit under Rule 2 and Rule 3 of
Order IX is made subject to it being restored if sufficient cause is shown as envisaged by
Rule 4 of Order IX, no such power has been vested in the Court if dismissal is on account
of the reasons mentioned in Rule 5. The argument is that pertaining to a dismissal under
Sub-Rule (1) of Rule 5 by providing the right to the Plaintiff to bring a fresh Suit subject to
the law of limitation in contradistinction to the Plaintiff's right under Rule 4 where the right
is to bring a fresh Suit subject to law of limitation or seek restoration of the Suit which is
dismissed, the legislative intent is that such Suit cannot be restored.

6. There being no provision in the Code empowering the Court to restore a Suit
dismissed under Sub-Rule (1) of Rule 5 of Order IX, extended limb of the argument is
that the inherent power of the Court under Section 151 of the Code cannot be exercised
for the reason said power cannot be exercised where expressly or impliedly the
legislature has made provision for the consequences of a default.

7. The argument of learned Counsel for the proponent of the view as taken by the learned
Trial Judge and a learned Single Judge of this Court prima facie is attractive and
apparently logical and also appears to be without blemish. However, it has to be kept in
mind that laws of procedure are intended to sub-serve the cause of substantive justice.
The cause of substantive justice is that disputes brought before a Court of law are
adjudicated on merits and not sacrifice on the anvil of procedural laws.

8. If the legislature had not provided under Rule 4 that notwithstanding dismissal of a Suit
either under Rule 2 or Rule 3 a fresh Suit could be instituted, since dismissal of a Suit in
default would not operate as res judicata a fresh Suit could always be filed subject to the
law of limitation. Similarly, a Suit dismissed under Sub-Rule (1) of Rule 5 would not have
precluded the Plaintiff from instituting a fresh Suit subject to the law of limitation. Thus, it
is apparent that the declaratory right provided for under Rule 4 and Rule5 of Order IX of
the Code is by way of abundant precaution and not by way of conferring upon the Plaintiff
a right to file a fresh Suit on the same cause of action on which the Suit which was earlier
dismissed was rested.

9. On the subject of the inherent power of the Court under Section 151 of the Code, is the
illuminative decision of the Supreme Court reported as MANU/SC/0056/1961 : AIR 1962
SC 527 Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal.

10. An anti Suit injunction was sought to be justified tracing the power of the Trial Judge
to Section 151 of the Code for the reason concededly the said injunction could not have
been granted in exercise of the power under Section 94 of the Code or Order XXXIX Rule
1 or Rule 2 of the Code. The argument before the Supreme Court was that if an area of
law is occupied by a legislation, the legislation would be presumed to cover the entire
field of the law. Meaning thereby, interim injunctions could be issued only in exercise of
the power under Section 94 read with Order XXXIX Rule 1 and Rule 2 of the Code.

11. The Supreme Court held that there is no express prohibition contained in the Code
that save and except situation contemplated by Section 94 read with Order XXXIX Rule 1
and Rule 2 of the Code, injunctions could not be issued. The Supreme Court highlighted
that so wide where the situations which may arise before a Civil Court that it was
impossible for the legislature to conceive of all and provide for a consequence thereof.
Thus, the Supreme Court held that an anti suit injunction could be justified by pressing
the power of the Court to Section 151 of the Code of Civil Procedure. The decision would
be a law on the point that unless there is a prohibition on the power of a Civil Court,
power under Section 151 of the Code could be exercised in the interest of justice.
12. Pertaining to restoration of a Suit dismissing in exercise of power under Sub-
Rule (1) of Rule 5 of Order IX of the Code, a distinct additional reasoning would
justify the recognition of inherent power in the Court to restore such Suit. It is
settled law that negligence by an agent is treated at a lower level of culpability vis-
a-vis negligence by the principal. We have a catena of judgments where on account of
defaults of lawyers such as refiling of plaints which are returned with objections by the
Registry, the Courts have been extremely liberal in condoning the delay on the reasoning
that once the litigants engage a lawyer and executes the Vakalatnama, the lawyer, as the
agent of the client has to take reasonable steps to prosecute the Suit. Ground realities
cannot be ignored. Procedural steps required in the onward movement of a Suit are left at
the hands of the lawyer by the clients. The lawyers in turn take the help of their court
clerks. The court clerks have to visit the registry to find out whether summons sent have
been returned served or unserved. If unserved, the court clerk has to inform the counsel
that steps need to be taken to file an application and request the court to issue fresh
summons. This also would justify a view to be taken that inherent powers of the Court
would always exist if procedural compliances are not made resulting in a penal order
being passed. Cry for justice has to be responded to by a court of justice and equity and
unless there is a power, there can be no response to help.

13. Noting that there is no express prohibition in the Code for a Suit dismissed under
Sub-Rule (1) of Rule 5 of Order IX of the Code to be restored, we hold that in such
situation inherent power under Section 151 of the Code would be available.

14. Overruling the view taken by the learned Single Judge of this Court and
answering the reference by declaring that Section 151 of the Code could be
invoked to seek restoration of a Suit dismissed under Sub-Rule (1) of Rule 5 of
Order IX of the Code, we lodge the caveat. The caveat would be that the Plaintiff
would have to show a sufficient cause. The previous conduct of the Plaintiff would
also require to be considered. The inconvenience and the prejudice caused to the
served defendants or the defendant who was not served as a consequence of
restoration of the Suit would also have to be kept in mind.

15. The Writ Petitions be placed before the learned Single Judge for decision in
accordance with law.

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