Case Note & Summary
The dispute arose from a suit for specific performance (Spl.C.S. No.74/1997) filed by the respondent’s father (since deceased) against the revision applicants regarding a plot of land, based on an agreement to sell dated 08.08.1994 for Rs.3,51,000, with Rs.3,41,000 already paid and possession handed over. The suit was dismissed in default on 12.01.2006, but the counterclaim for possession filed by the revision applicants was dismissed on merits on 30.09.2006. The revision applicants subsequently filed another suit (Spl.C.S. No.34/2007) for possession based on title, which was also dismissed on merits on 08.10.2012; the appeal against that order was pending. The respondent initially moved M.A.R.J.I. No.664/2007 to have the dismissal set aside and delay condoned, but that application was dismissed in default on 25.02.2009. Nearly two years later, the respondent filed M.A.R.J.I. No.1238/2011 seeking condonation of delay of 5 years 9 months 18 days and restoration of Spl.C.S. No.74/1997 under Order IX Rule 9 of the Code of Civil Procedure, 1908. The trial court, the 4th Joint Civil Judge (Senior Division), Aurangabad, vide order dated 02.05.2013, allowed the application, condoned the delay subject to costs of Rs.3000, and restored the suit. The revision applicants challenged this order before the High Court in Civil Revision Application No.164 of 2013. They contended that a second restoration application was barred under Order IX Rule 9(1) as the earlier application for the same relief had been dismissed in default; further, the delay was not sufficiently explained and the trial court’s reliance on ‘interest of justice’ was misplaced. The respondent argued that the second application was maintainable under Section 151 CPC, relying on the decision in State of Karnataka vs Y. Moideen Kunhi, and that sufficient cause—such as the illness of his sisters and the fact that the counterclaim had been dismissed—was shown. The respondent also urged that under Section 115 CPC as amended in 2002, the High Court’s revisional jurisdiction was limited. The High Court heard the matter, reserved judgment on 05.08.2013, and pronounced it on 14.08.2013. The available text of the judgment does not contain the final decision, so the outcome remains unknown.
Headnote
A) Civil Procedure - Restoration of Suit - Order IX Rule 9, Code of Civil Procedure, 1908 - Dismissal of suit in default bars fresh suit on same cause of action, but a second application for restoration may be entertained under Section 151 CPC where first restoration application was dismissed in default, as the bar under Order IX Rule 9 does not apply to such procedural applications. (Paras 3, 11)
B) Limitation - Condonation of Delay - Section 5, Limitation Act, 1963 read with Order IX Rule 9, Code of Civil Procedure, 1908 - While delay of over 5 years requires strict scrutiny, the trial court may condone it on sufficient cause, particularly where rights in immovable property are concerned and the opposing party's counterclaim for possession has already been dismissed on merits; liberal construction to advance substantial justice is permissible as per State of Karnataka v. Y. Moideen Kunhi, AIR 2009 SC 2577. (Paras 4, 8-9)
C) Civil Procedure - Revisional Jurisdiction - Section 115, Code of Civil Procedure, 1908 - Post-2002 amendment, High Court's revisional power under Section 115 is restricted to orders that, if made in favour of revision applicant, would finally dispose of the suit; interference is not permissible on mere technical grounds when no injustice is caused. (Para 10)
D) Civil Procedure - Inherent Powers - Section 151, Code of Civil Procedure, 1908 - The inherent jurisdiction of the court under Section 151 can be invoked to restore a restoration application dismissed in default, as Section 141 does not apply to such miscellaneous applications, ensuring that substantive rights are not defeated by procedural lapses. (Para 11)
Issue of Consideration
Whether a second restoration application under Order IX Rule 9 CPC is maintainable when earlier restoration application was dismissed in default; Whether the trial court rightly condoned the delay of 5 years 9 months; Whether the High Court can interfere under Section 115 CPC
Law Points
- Order IX Rule 9 CPC
- condonation of delay
- sufficient cause
- revisional jurisdiction under Section 115 CPC
- Section 151 CPC
- second restoration application maintainability
- liberal construction of sufficient cause
Case Details
2013 LawText (BOM) (08) 23
Civil Revision Application No. 164 of 2013
Shri. P.F. Patni for applicants, Shri. S.N. Surwase for respondent
Nandkishor s/o Damodhar Wadgaonkar, Satishkumar s/o Damodhar Wadgaonkar
Gajanan s/o Uttamrao Pede
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Nature of Litigation
Civil revision against trial court order condoning delay and restoring suit for specific performance dismissed in default.
Remedy Sought
Revision applicants (original respondents in the suit) sought to set aside the trial court's order allowing the application for condonation of delay and restoration of Spl.C.S. No.74/1997.
Filing Reason
The trial court condoned a delay of 5 years 9 months in filing the restoration application and ordered restoration of the suit, which the revision applicants alleged was contrary to Order IX Rule 9 CPC and without sufficient cause.
Previous Decisions
Suit Spl.C.S. No.74/1997 dismissed in default on 12.01.2006; counterclaim of revision applicants dismissed on merits on 30.09.2006. Revision applicants filed Spl.C.S. No.34/2007 for possession based on title; dismissed on merits on 08.10.2012; appeal pending. Respondent filed M.A.R.J.I. No. 664/2007 for setting aside dismissal and condonation; dismissed in default on 25.02.2009. Respondent filed M.A.R.J.I. No. 1238/2011 for condonation of delay and restoration of Spl.C.S. No.74/1997; allowed by trial court on 02.05.2013, with cost of Rs.3000.
Issues
Whether the second restoration application under Order IX Rule 9 CPC is maintainable when the earlier application for restoration was dismissed in default.
Whether the trial court erred in condoning the delay of 5 years 9 months without sufficient cause disclosed.
Whether the High Court's revisional jurisdiction under Section 115 CPC permits interference with the trial court's order condoning delay and restoring the suit.
Submissions/Arguments
Revision applicants argued second restoration application barred under Order IX Rule 9(1) CPC as earlier application for same relief dismissed; fresh proceedings on same cause of action precluded.
Revision applicants contended delay of over 5 years not explained satisfactorily; trial court merely relied on 'interest of justice' without appreciating insufficient grounds, rights accrued to applicants.
Respondent argued second restoration application maintainable under Section 151 CPC as earlier dismissal was in default, not on merits; sufficient cause shown due to illness of sisters and counterclaim dismissed on merits.
Respondent submitted revisional jurisdiction under Section 115 CPC after 2002 amendment limited; order does not finally dispose of suit, so High Court should not interfere.
Judgment Excerpts
when earlier proceedings for the same relief were dismissed in default by the court, in that event subsequent proceedings for the same relief are not maintainable in view of Order IX Rule 9 (1) of the Code of Civil Procedure.
the trial court, upon perusal of the sufficient cause disclosed in the application for condonation of delay, was satisfied that in the interest of justice such delay is required to be condoned.
The trial Court has relied on citation in a case of State of Karnataka vs Y. Moideen Kunhi (dead) by Lrs. and Ors. reported in AIR 2009 SC 2577 (Karnataka) in which it is held that, sufficient cause must receive liberal construction to advance substantial justice
second restoration application can be considered U/sec.151 C.P.C.
Procedural History
Suit Spl.C.S. No.74/1997 filed by respondent’s father (deceased) for specific performance of contract dated 08.08.1994 regarding plot no.55, Tilaknagar, Sillod, with Rs.3,41,000 paid and possession handed over. Suit dismissed in default on 12.01.2006; counterclaim for possession by revision applicants dismissed on merits on 30.09.2006. Revision applicants filed Spl.C.S. No.34/2007 for possession based on title; dismissed on merits on 08.10.2012; appeal R.C.A. No.548/2012 pending. Respondent's M.A.R.J.I. No.664/2007 for setting aside dismissal and condonation dismissed in default on 25.02.2009. Respondent filed M.A.R.J.I. No.1238/2011 for condonation of delay (5 years 9 months 18 days) and restoration of Spl.C.S. No.74/1997 under Order IX Rule 9 CPC. Trial court allowed application on 02.05.2013, condoning delay subject to costs of Rs.3000, which was deposited on 12.07.2013. Revision applicants filed Civil Revision Application No.164 of 2013 before High Court. Heard on 05.08.2013 and judgment pronounced on 14.08.2013.
Acts & Sections
- Code of Civil Procedure, 1908: Order IX Rule 9, Section 115, Section 151
- Limitation Act, 1963: Section 5
