Case Note & Summary
The petitioner, Rajendra Mohanlal Paliwal, filed a suit for partition and separate possession in 2004. The suit was dismissed in default by the trial court on 25/02/2010 because the plaintiff was absent and his advocate could not furnish reasons for not adducing evidence. The petitioner filed an application for restoration, which was dismissed by the trial court on the ground that the sufficiency of cause could only be considered in an appeal. The petitioner then appealed to the District Court, which dismissed the appeal, agreeing with the trial court. The petitioner challenged both orders in the High Court by way of a writ petition. The High Court held that the courts below erred in not considering the sufficiency of the cause shown by the petitioner. The High Court set aside the orders of the trial court and the appellate court and remanded the matter to the trial court for fresh consideration of the restoration application on merits, directing the trial court to decide the same within three months.
Headnote
A) Civil Procedure - Restoration of Suit - Order 9 Rule 9 CPC - Sufficiency of Cause - The trial court dismissed the suit in default and refused to restore it, holding that the sufficiency of cause could only be considered in an appeal. The appellate court dismissed the appeal on the same ground. The High Court held that the courts below erred in not considering the sufficiency of the cause shown by the plaintiff for his absence. The matter was remanded to the trial court for fresh consideration of the restoration application on merits. (Paras 3-8)
B) Civil Procedure - Appellate Court's Duty - Order 41 Rule 23 CPC - Remand - The appellate court dismissed the appeal without considering the merits of the restoration application. The High Court held that the appellate court should have examined whether the trial court's order was justified and, if necessary, remanded the matter for fresh consideration. The High Court set aside the appellate order and directed the trial court to decide the restoration application afresh. (Paras 5-8)
Issue of Consideration
Whether the courts below were justified in dismissing the suit in default and refusing to restore it without considering the sufficiency of the cause shown by the plaintiff, and whether the appellate court erred in dismissing the appeal on the ground that the issue of sufficiency of cause could only be considered in an appeal.
Final Decision
The High Court allowed the writ petition, set aside the orders of the trial court and the appellate court, and remanded the matter to the trial court for fresh consideration of the restoration application on merits, directing the trial court to decide the same within three months.
Law Points
- Restoration of suit dismissed in default
- Order 9 Rule 9 CPC
- Sufficiency of cause
- Appellate court's duty to consider merits
- Liberal approach in procedural matters
Case Details
2020 LawText (BOM) (02) 125
Writ Petition No. 6364 of 2016
Mr. M. D. Lakhey for petitioner, Mr. K. J. Topale for respondents
Rajendra S/o Mohanlal Paliwal
Jugalkishor S/o Mohanlal Paliwal, Prabhudayal S/o Mohanlal Paliwal, Sau. Shushila w/o Harichandra Paliwal
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Nature of Litigation
Civil writ petition challenging orders dismissing suit in default and refusing restoration.
Remedy Sought
Petitioner sought restoration of the suit for partition and separate possession dismissed in default.
Filing Reason
The suit was dismissed in default due to absence of the plaintiff; the restoration application was rejected on the ground that sufficiency of cause could only be considered in appeal.
Previous Decisions
The trial court dismissed the suit in default on 25/02/2010 and rejected the restoration application. The appellate court dismissed the appeal against that order.
Issues
Whether the trial court was justified in dismissing the restoration application without considering the sufficiency of cause.
Whether the appellate court erred in dismissing the appeal on the ground that sufficiency of cause could only be considered in an appeal.
Submissions/Arguments
Petitioner argued that the courts below erred in not considering the sufficiency of cause for his absence.
Respondents supported the orders of the courts below.
Ratio Decidendi
The courts below must consider the sufficiency of cause shown by a plaintiff for restoration of a suit dismissed in default under Order 9 Rule 9 CPC, and the appellate court should examine the merits of the trial court's order rather than dismissing the appeal on procedural grounds.
Judgment Excerpts
By this writ petition, the petitioner (original plaintiff) has challenged orders passed by the Court below, dismissing in default the suit filed by the petitioner, and thereafter, refusing to restore the same by holding that if the sufficiency of cause sought to be shown by the petitioner was to be considered by the Court below, it would not be appropriate because as per the procedure prescribed under the Code of Civil Procedure, 1908 (CPC) this was an aspect which could be considered only in an appeal.
The brief facts leading upto filing of the present writ petition are that the petitioner had filed a suit for partition and separate possession in the year 2004. The suit stood dismissed in default by impugned order dated 25/02/2010, passed by the Court below.
Procedural History
The petitioner filed a suit for partition and separate possession in 2004. The suit was dismissed in default on 25/02/2010. The petitioner filed an application for restoration, which was dismissed. The petitioner appealed to the District Court, which dismissed the appeal. The petitioner then filed the present writ petition in the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 9 Rule 9, Order 41 Rule 23
