Case Note & Summary
The case involves an appeal filed by the defendants (Bennett Coleman & Co. Ltd. & Anr.) against an order dated 7 August 2006 passed by the Motion Judge restoring Suit No.286 of 1981, which had been dismissed for default on 9 October 2003. The respondents (original plaintiffs) raised a preliminary objection regarding the maintainability of the appeal, arguing that an order restoring a suit under Order IX Rule 9 of the Code of Civil Procedure, 1908 is not a 'judgment' within the meaning of Clause 15 of the Letters Patent and therefore not appealable. The respondents relied on the Division Bench judgment of the Calcutta High Court in Tulsiram Bhagwandas v. Sitaram Srigopal (AIR 1959 Calcutta 389), which held that an order restoring a suit under Order IX Rule 9 is not a 'judgment' and thus not appealable. The court, after considering the submissions, upheld the preliminary objection and dismissed the appeal as not maintainable. The court did not delve into the merits of the restoration order.
Headnote
A) Civil Procedure - Appealability - Order restoring suit under Order IX Rule 9 CPC - Whether a 'judgment' under Clause 15 of Letters Patent - The court held that an order restoring a suit dismissed for default is not a 'judgment' and thus not appealable under Clause 15 of the Letters Patent, relying on the principle in Tulsiram Bhagwandas v. Sitaram Srigopal, AIR 1959 Calcutta 389. (Paras 2-3)
Issue of Consideration
Whether an order restoring a suit dismissed for default under Order IX Rule 9 of the Code of Civil Procedure, 1908 is a 'judgment' within the meaning of Clause 15 of the Letters Patent and therefore appealable.
Final Decision
The appeal is dismissed as not maintainable. The preliminary objection raised by the respondents is upheld.
Law Points
- Order restoring suit under Order IX Rule 9 CPC is not a 'judgment' under Clause 15 of Letters Patent
- Appeal not maintainable
Case Details
2006 LawText (BOM) (10) 24
APPEAL NO.707 OF 2006 IN NOTICE OF MOTION NO.3733 OF 2003 IN SUIT NO.286 OF 1981
Dr. Virendra Tulzapurkar, senior counsel, with Mr. Sandip Parekh i/b. M/s. Kanga & Co., for the appellants; Mr. Devansh Mehta i/b. Mr. Vinod Juwale for the respondents
Bennett Coleman & Co. Ltd. & Anr.
Jamshed Kawasjee Vakeel & Ors.
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Appeal against order restoring suit dismissed for default
Remedy Sought
Appellants sought to challenge the order dated 7.8.2006 restoring Suit No.286 of 1981
Filing Reason
Dissatisfaction with the order restoring the suit which was dismissed in default on 9.10.2003
Previous Decisions
Suit No.286 of 1981 was dismissed for default on 9.10.2003; Motion Judge restored the suit on 7.8.2006
Issues
Whether an order restoring a suit dismissed for default under Order IX Rule 9 CPC is a 'judgment' under Clause 15 of the Letters Patent and thus appealable.
Submissions/Arguments
Respondents argued that the order restoring the suit under Order IX Rule 9 is not a 'judgment' and therefore not appealable under Clause 15 of the Letters Patent, relying on Tulsiram Bhagwandas v. Sitaram Srigopal (AIR 1959 Calcutta 389).
Ratio Decidendi
An order restoring a suit dismissed for default under Order IX Rule 9 of the Code of Civil Procedure, 1908 is not a 'judgment' within the meaning of Clause 15 of the Letters Patent and is therefore not appealable.
Judgment Excerpts
The counsel for the respondents raised a preliminary objection about the maintainability of the appeal. Relying upon the Division Bench judgement of the Calcutta High Court in the case of Tulsiram Bhagwandas v. Sitaram Srigopal (AIR 1959 Calcutta 389), the counsel for the respondents urged that an order restoring the suit made under Order IX Rule 9 of the C.P.C. is not a ‘judgement’ and, therefore, not appealable under Clause 15 of the Letters Patent.
Procedural History
Suit No.286 of 1981 was dismissed for default on 9.10.2003. The plaintiffs filed Notice of Motion No.3733 of 2003 seeking restoration. The Motion Judge allowed the motion and restored the suit on 7.8.2006. The defendants appealed against that order on 3.10.2006.
Acts & Sections
- Code of Civil Procedure, 1908: Order IX Rule 9
- Letters Patent of the Bombay High Court: Clause 15
