Case Note & Summary
The petitioner, Arvind Vyankatrao Tarar, was the original applicant in Land Acquisition Case No. 19 of 2001 pending before the Reference Court under Section 18 of the Land Acquisition Act, 1894. The Reference Court dismissed the case on 13.08.2012, deciding all issues on merits after noting that the applicant and his counsel were absent and no evidence was led. The petitioner then filed an application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) for restoration of the reference, contending that the court could only dismiss the case for default in their absence and could not decide it on merits. The Reference Court dismissed the restoration application as not maintainable, holding that since the case was decided on merits, the proper remedy was an appeal under Section 54 of the Land Acquisition Act. Aggrieved, the petitioner filed the present writ petition. The High Court observed that when the applicant and his counsel are absent, the court has no option but to dismiss the application for default; it cannot proceed to decide the case on merits. The court noted that the petitioner had two remedies: a regular civil appeal under Section 54 of the Land Acquisition Act or an application under Order IX Rule 13 CPC to set aside the ex parte decree. However, the petitioner chose to file an application under Order IX Rule 9 CPC for restoration, presuming the dismissal was for default. The High Court held that the application under Order IX Rule 9 CPC is maintainable because the dismissal, though purportedly on merits, was effectively a dismissal for default given the absence of the applicant. The court set aside the order of the Reference Court and directed it to restore the Land Acquisition Case to its original number and decide it afresh on merits after giving the applicant an opportunity to lead evidence. The writ petition was allowed.
Headnote
A) Civil Procedure Code - Restoration of Suit - Order IX Rule 9 CPC - Maintainability - Application for restoration of Land Acquisition Reference dismissed on merits in absence of applicant - Held that when applicant and counsel are absent, the court cannot decide the case on merits; it can only dismiss for default - Hence application under Order IX Rule 9 CPC is maintainable (Paras 2-6). B) Land Acquisition Act, 1894 - Reference under Section 18 - Dismissal for Default - Remedy - Applicant has two remedies: appeal under Section 54 or application under Order IX Rule 13 CPC to set aside ex parte decree - In present case, applicant filed application under Order IX Rule 9 CPC for restoration - Held that such application is maintainable as dismissal was effectively for default (Paras 4-6).
Issue of Consideration
Whether an application under Order IX Rule 9 read with Section 151 CPC is maintainable for restoration of a Land Acquisition Reference case which was dismissed on merits after answering all issues in the absence of the applicant and his counsel.
Final Decision
Writ petition allowed. Impugned order dated 13.08.2012 passed by Reference Court dismissing restoration application is set aside. Reference Court is directed to restore Land Acquisition Case No. 19 of 2001 to its original number and decide it afresh on merits after giving opportunity to the applicant to lead evidence.
Law Points
- Order IX Rule 9 CPC application maintainable even if reference court decides case on merits in absence of applicant
- Reference Court cannot decide merits when applicant absent
- Remedy of appeal under Section 54 Land Acquisition Act is alternative
- Not bar to restoration application
