Case Note & Summary
The plaintiff, Arvind Nathubhai Dattani, filed a testamentary suit seeking probate of an alleged will. The plaintiff's evidence was recorded on 16 April 2009, but the attesting witness did not appear despite issuance of witness summons. The plaintiff failed to serve the summons or adduce any other evidence. On 18 January 2011, when the matter was called, the plaintiff was absent. The court, invoking the Explanation to Order 17 Rule 2 of the Code of Civil Procedure, 1908, proceeded to consider the evidence on record and dismissed the suit on merits, holding that the will was not proved without the attesting witness. The plaintiff then filed a Notice of Motion under Order 9 Rule 9 CPC seeking to set aside the dismissal order, along with a prayer to condone delay. The High Court held that the suit was dismissed on merits after evidence was recorded, not in default under Order 9 Rule 8. Therefore, the remedy lies in appeal, not under Order 9 Rule 9. The motion was dismissed as misconceived, with no order as to costs.
Headnote
A) Civil Procedure - Dismissal of Suit - Order 17 Rule 2 Explanation - Order 9 Rule 9 - Remedy - Where a suit is dismissed on merits after the court proceeds under the Explanation to Rule 2 of Order 17 of the Code of Civil Procedure, 1908, the appropriate remedy is an appeal and not an application under Order 9 Rule 9 CPC. The Explanation permits the court to proceed with the case as if the absent party were present when evidence or a substantial portion thereof has already been recorded. In the present case, the plaintiff's evidence was recorded, and the court dismissed the suit on merits for failure to prove the will, not for default. Hence, the notice of motion under Order 9 Rule 9 was misconceived. (Paras 2-6)
Issue of Consideration
Whether a notice of motion under Order 9 Rule 9 of the Code of Civil Procedure, 1908 is maintainable to set aside a decree dismissing a suit on merits after evidence has been recorded, as opposed to a dismissal in default.
Final Decision
The Notice of Motion No.75 of 2011 is dismissed as misconceived. No order as to costs.
Law Points
- Order 17 Rule 2 CPC
- Explanation to Order 17 Rule 2 CPC
- Order 9 Rule 9 CPC
- Remedy of appeal against decree on merits
- Distinction between dismissal in default and dismissal on merits
Case Details
Notice of Motion No.75 of 2011 in Testamentary Suit No.59 of 2010 in Testamentary Petition No.227 of 2010
Mr. Bhavin Gada with Ms. Yogini Gada i/b Harakchand & Co. for the plaintiff; Mr. S. Wasoodew i/b M/s. M.P. Vashi & Associates for defendant no.4
Maniben Karsandas Dattani & Anr
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Nature of Litigation
Testamentary suit for probate of a will.
Remedy Sought
Plaintiff sought to set aside the order dated 18 January 2011 dismissing the suit, by way of a notice of motion under Order 9 Rule 9 CPC, after condonation of delay.
Filing Reason
The plaintiff's suit was dismissed on merits by the court on 18 January 2011 for failure to prove the will, as the attesting witness was not examined and the plaintiff was absent.
Previous Decisions
The suit was dismissed on merits by order dated 18 January 2011 after the court proceeded under the Explanation to Order 17 Rule 2 CPC.
Issues
Whether a notice of motion under Order 9 Rule 9 CPC is maintainable to set aside a decree dismissing a suit on merits after evidence has been recorded.
What is the appropriate remedy when a suit is dismissed on merits under the Explanation to Order 17 Rule 2 CPC?
Submissions/Arguments
Plaintiff argued that the suit was dismissed in default and sought to set aside the dismissal under Order 9 Rule 9 CPC.
Defendant (impliedly) contended that the suit was dismissed on merits, not in default, and thus the remedy is by way of appeal.
Ratio Decidendi
When a suit is dismissed on merits after the court proceeds under the Explanation to Order 17 Rule 2 CPC (i.e., after evidence or a substantial portion thereof has been recorded and the party fails to appear), the dismissal is not a dismissal in default under Order 9 Rule 8 but a decree on merits. The appropriate remedy is an appeal, not an application under Order 9 Rule 9 CPC.
Judgment Excerpts
In my view, the suit of the plaintiff has been dismissed on merits after the court proceeded under explanation to Rule 2 of Order 17 of the Code of Civil Procedure... As such, the appropriate remedy of the plaintiff is to file an appeal against the decision.
Perusal of the order dated 18 January 2011 clearly shows that the suit was not dismissed in default under Order 9 Rule 8 of the Code but the suit was dismissed on merits.
The court considered the evidence adduced by the plaintiff and observed: 'the evidence of the plaintiff alone is of no consequence. Validity of the will cannot be seen without the evidence of the attesting witness'.
Procedural History
The plaintiff filed a testamentary petition (No.227 of 2010) which was converted into a testamentary suit (No.59 of 2010). The plaintiff's evidence was recorded on 16 April 2009. The attesting witness was not examined despite issuance of witness summons. On 18 January 2011, the plaintiff was absent and the court dismissed the suit on merits. The plaintiff then filed Notice of Motion No.75 of 2011 under Order 9 Rule 9 CPC to set aside the dismissal, which was dismissed by the High Court on 19 December 2011.
Acts & Sections
- Code of Civil Procedure, 1908: Order 17 Rule 2, Explanation to Order 17 Rule 2, Order 9 Rule 9, Order 9 Rule 8
