Case Note & Summary
The case involves a civil revision application filed by the applicant (original defendant) against an order dated 08/08/2013 passed by the Civil Judge, Senior Division, Amravati in Regular Misc. Judicial Case No. 74 of 2010, whereby the trial court condoned the delay in filing an application under Order IX Rule 9 of the Code of Civil Procedure, 1908 (CPC) for restoration of a suit that was dismissed on 11/02/2009. The applicant contended that no sufficient cause was shown for the delay and that respondent No.1 had elected to file a fresh suit under Order IX Rule 4 CPC, which was dismissed as barred by limitation, and thus could not avail the alternative remedy of restoration. The respondent argued that the remedies under Rule 4 are not mutually exclusive, relying on a Jharkhand High Court decision. The High Court examined the trial court's reasoning and found that the respondent had explained the delay by stating that he was pursuing a fresh suit, which was dismissed on limitation grounds, and thereafter filed the restoration application. The court held that the trial court's finding of sufficient cause was based on material on record and was not perverse, thus no interference was warranted. On the issue of election, the court held that the two remedies under Order IX Rule 4 CPC are alternative and not mutually exclusive; a party may pursue both simultaneously, and the principle of election does not apply. The revision application was dismissed, upholding the trial court's order condoning the delay.
Headnote
A) Civil Procedure - Condonation of Delay - Sufficient Cause - Order IX Rule 9, Code of Civil Procedure, 1908 - The trial court condoned delay in filing restoration application, finding sufficient cause in the respondent's explanation that he was pursuing a fresh suit which was dismissed as barred by limitation - Held that the trial court's finding of sufficient cause was based on material on record and not perverse, thus no interference warranted (Paras 7-8). B) Civil Procedure - Election of Remedies - Order IX Rule 4, Code of Civil Procedure, 1908 - The remedies under Order IX Rule 4 (filing fresh suit or applying for restoration) are not mutually exclusive; a party may pursue both simultaneously - The principle of election does not apply as the remedies are alternative and not inconsistent - Held that the trial court correctly rejected the election argument (Paras 9-10).
Issue of Consideration
Whether the trial court erred in condoning the delay in filing an application for restoration of a suit under Order IX Rule 9 CPC, and whether the principle of election of remedies applies to the two remedies under Order IX Rule 4 CPC.
Final Decision
The High Court dismissed the civil revision application, upholding the trial court's order condoning the delay. The court found that the trial court's finding of sufficient cause was based on material on record and not perverse. It also held that the remedies under Order IX Rule 4 CPC are not mutually exclusive and the principle of election does not apply.
Law Points
- Condonation of delay
- Sufficient cause
- Order IX Rule 4 CPC
- Election of remedies
- Restoration of suit
