Case Note & Summary
The appellants, original plaintiffs, filed a suit which was dismissed by the City Civil Court on 13th August 1996. The dismissal was under Order XVII Rule 2 of the Code of Civil Procedure, 1908, as the court proceeded to decide the suit on merits after the plaintiffs failed to appear. The appellants then took out a Notice of Motion under Order IX Rule 9 CPC seeking to set aside the dismissal and restore the suit. The learned Trial Judge held that the Notice of Motion was not maintainable because the dismissal was under Order XVII Rule 2, which results in a decree on merits, not a dismissal for default under Order IX. The appellants challenged this order in appeal. The High Court, per Justice A.S. Oka, examined the Roznama and the impugned order. The court noted that the Trial Judge had correctly held that Order IX Rule 9 applies only to dismissals for default under Order IX, not to dismissals under Order XVII Rule 2. The court observed that the proper remedy for the appellants was to appeal against the decree of dismissal, not to seek restoration under Order IX Rule 9. Consequently, the High Court dismissed the appeal, upholding the Trial Judge's order that the Notice of Motion was not maintainable.
Headnote
A) Civil Procedure - Restoration of Suit - Order IX Rule 9 CPC - Maintainability - Suit dismissed under Order XVII Rule 2 CPC for non-prosecution on merits - Notice of Motion under Order IX Rule 9 CPC held not maintainable as dismissal under Order XVII Rule 2 is a decree on merits, not a dismissal for default under Order IX - Proper remedy is appeal against the decree (Paras 2-3).
Issue of Consideration
Whether a Notice of Motion under Order IX Rule 9 of the Code of Civil Procedure, 1908 is maintainable when the suit was dismissed under Order XVII Rule 2 of the said Code.
Final Decision
Appeal dismissed; order of Trial Judge holding Notice of Motion not maintainable upheld.
Law Points
- Order IX Rule 9 CPC not applicable to dismissal under Order XVII Rule 2 CPC
- Order XVII Rule 2 CPC dismissal is on merits
- remedy is appeal not restoration
Case Details
2005 LawText (BOM) (03) 11
Appeal from Order No.1140 of 1996
Mr. Jitendra G. Damani for the Appellants, Mr. A.A. Kumbhakoni with Mr. T.D. Deshmukh i/b Mr. Ashok V. Jain for the Respondents
Erick Ansulem Mendes, Haven Ansulem Mendes, Dr. Babubhai Ishwarbhai Patel
Dr. Surendra N. Bhasale, Dr. Suprita Bhasale
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Nature of Litigation
Civil appeal against order dismissing Notice of Motion for restoration of suit
Remedy Sought
Appellants sought to set aside dismissal of suit and restore it
Filing Reason
Suit was dismissed under Order XVII Rule 2 CPC; appellants sought restoration under Order IX Rule 9 CPC
Previous Decisions
Suit dismissed on 13th August 1996 under Order XVII Rule 2 CPC; Notice of Motion under Order IX Rule 9 dismissed on 11th September 1996
Issues
Whether a Notice of Motion under Order IX Rule 9 CPC is maintainable when the suit was dismissed under Order XVII Rule 2 CPC
Submissions/Arguments
Appellants argued that the suit was dismissed for default and could be restored under Order IX Rule 9
Respondents contended that dismissal under Order XVII Rule 2 is on merits and not a default dismissal
Ratio Decidendi
A suit dismissed under Order XVII Rule 2 CPC is a decree on merits, not a dismissal for default under Order IX, and therefore cannot be restored under Order IX Rule 9 CPC; the proper remedy is an appeal against the decree.
Judgment Excerpts
The learned Trial Judge held that Notice of Motion taken out under Order IX Rule 9 of Code of Civil Procedure, 1908 was not maintainable.
The learned Trial Judge held that the Court proceeded under Order XVII Rule 2 of the said Code and the suit was dismissed on merits.
Procedural History
Suit filed by appellants dismissed on 13th August 1996 under Order XVII Rule 2 CPC. Appellants filed Notice of Motion under Order IX Rule 9 CPC for restoration. Trial Judge dismissed Notice of Motion on 11th September 1996 holding it not maintainable. Appellants appealed to High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order IX Rule 9, Order XVII Rule 2
