Case Note & Summary
The judgment deals with an appeal from order challenging the restoration of a suit dismissed for default. The respondent had filed a suit on 10.06.2002 in the Bombay City Civil Court. On 23.02.2005, the suit was dismissed for want of prosecution as neither party appeared. After a lapse of five years, in March 2010, the respondent took out a notice of motion for restoration of the suit. Notice was served on the appellant. The application was listed on 09.04.2010, adjourned to 26.04.2010, and the board was discharged, with the matter being adjourned to 02.07.2010. However, the application was actually heard and disposed of on 25.06.2010, when the court allowed the restoration with costs of Rs.5000. The suit was restored to file for hearing on merits. The appellant then sought to set aside the ex parte order of restoration, which application was rejected. The appeal was filed against that order. The core legal issue was whether the order restoring the suit was appealable under Order 43 Rule 1(d) of the Code of Civil Procedure. The appellant contended that it was appealable as it was akin to setting aside a decree, while the respondent argued that the order was not under Order 9 Rule 13 CPC and hence not appealable. The court analyzed the relevant provisions of the CPC, particularly Order 9 Rules 3, 4, 8, 9, 13 and 14, and held that the order allowing restoration under Order 9 Rule 4, where the suit was dismissed for default of both parties, is not a decree under Section 2(2) and is not covered by Order 43 Rule 1(d). The appeal was thus held not maintainable. Even on merits, the court found that the restoration was just and equitable, as the matter should be heard on merits and the appellant failed to show how it had acted upon the dismissal to its prejudice. The appeal was dismissed with costs of Rs.10,000.
Headnote
A) Civil Procedure - Appeal - Maintainability of Appeal against order restoring suit dismissed for default - The order allowing restoration of a suit dismissed under Order 9 Rule 3 CPC for non-appearance of both parties is not an order under Order 9 Rule 13 CPC, hence not appealable under Order 43 Rule 1(d) CPC; such order does not amount to a decree under Section 2(2) CPC (Paras 1-2). B) Civil Procedure - Restoration of Suit - Notice to Opposite Party - Under Order 9 Rule 4 CPC, when suit dismissed for default of both parties, the plaintiff alone may apply for restoration and no notice to opposite party is mandated by the CPC; however, in practice, notice is given in interest of justice (Paras 7, 11). C) Civil Procedure - Restoration of Suit - Just and Equitable Order - Restoring a suit to enable hearing on merits is a just and equitable order, especially where the order is passed with costs and the opposite party fails to show how it acted upon the dismissal order; the appellate court should not interfere (Para 13). D) Civil Procedure - Courts' Discretion - Condonation of Delay - Where there is a delay of five years in applying for restoration, costs of Rs.5000 were imposed; the court emphasized that the matter should be heard on merits and the vehement opposition to restoration spoke much of inequity (Para 13).
Issue of Consideration
Whether an order allowing restoration of a suit dismissed for default under Order 9 Rule 3 CPC is appealable under Order 43 Rule 1(d) CPC? Whether the restoration was justified on merits?
Final Decision
The appeal was dismissed with costs of Rs.10,000/-. The Court held that the order allowing restoration of a suit dismissed for default where both parties failed to appear is not an appealable order under Order 43 Rule 1(d) CPC. Even if maintainable, the restoration was just and equitable as the matter should be heard on merits and no prejudice was shown.
Law Points
- Order 43 Rule 1(d) CPC applies only to orders under Order 9 Rule 13 CPC setting aside ex parte decree
- not to orders restoring suit dismissed for default of both parties
- order dismissing an application for restoration or allowing restoration is not a decree under Section 2(2) CPC
- restoration under Order 9 Rule 4 CPC does not require notice to opposite party
- court should lean in favour of hearing on merits
- costs can be imposed to compensate for delay.
