Case Note & Summary
The petitioner, K. M. Dastagir Sab, filed a suit (O.S.No.1280/2020) before the II Additional Senior Civil Judge, Bengaluru Rural District, seeking relief against the respondents. The suit was dismissed for default on 10.10.2022. The petitioner filed an application for restoration of the suit, but the trial court rejected it on the ground that the suit was barred by an arbitration agreement under Section 8 of the Arbitration and Conciliation Act, 1996, as per I.A.No.II filed by the respondents. The petitioner then filed a writ petition under Article 227 of the Constitution of India before the High Court of Karnataka, challenging the order dated 10.10.2022 and seeking restoration of the suit. The High Court observed that the dismissal for default was not a decision on merits and that the trial court ought to have considered the restoration application independently. The court held that the issue under Section 8 should be decided after the suit is restored. Accordingly, the High Court allowed the writ petition, set aside the impugned order, and directed the trial court to restore the suit to its original number and then decide I.A.No.II on its merits in accordance with law.
Headnote
A) Civil Procedure - Restoration of Suit - Dismissal for Default - Order IX Rule 9 CPC - The trial court dismissed the suit for default and later rejected the restoration application solely on the ground that the suit was barred by an arbitration agreement under Section 8 of the Arbitration and Conciliation Act, 1996. The High Court held that the dismissal for default was not on merits and the court ought to have considered the restoration application on its own merits, and the issue under Section 8 should be decided after restoration. (Paras 1-10) B) Arbitration and Conciliation Act, 1996 - Section 8 - Application for Reference to Arbitration - The trial court, while dismissing the suit for default, cannot simultaneously decide the application under Section 8 without restoring the suit. The High Court directed the trial court to restore the suit and then decide I.A.No.II under Section 8 on merits. (Paras 5-10)
Issue of Consideration
Whether the trial court was justified in dismissing the suit for default and refusing to restore it on the ground that the suit is barred by an arbitration agreement under Section 8 of the Arbitration and Conciliation Act, 1996.
Final Decision
The High Court allowed the writ petition, set aside the order dated 10.10.2022 passed by the II Additional Senior Civil Judge, Bengaluru Rural District in O.S.No.1280/2020, and directed the trial court to restore the suit to its original number and then decide I.A.No.II filed under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996 on its merits in accordance with law.
Law Points
- Restoration of suit dismissed for default
- Section 8 of Arbitration and Conciliation Act
- 1996
- Order IX Rule 9 CPC
- Article 227 of Constitution of India
- Inherent power of court to restore suit
