Case Note & Summary
The appellant, Prabhudayal Pande, filed a First Appeal against an order dated 14.8.2014 passed by the 8th Joint Civil Judge (Sr.Dn.), Nagpur, in Special Civil Suit No.524 of 2007. The suit was originally instituted by the appellant for declaration, permanent injunction, and compensation against the respondents (original defendants). The litigation between the parties has a long history dating back to 1985, when Regular Civil Suit No.492 of 1985 was filed by one Ramrao Mane against Ramkhilawan etc. for possession and mesne profits of the suit property. In the present suit, the trial court dismissed the suit for non-prosecution under Order IX Rule 8 of the Code of Civil Procedure, 1908, on the ground that the plaintiff's counsel was absent. However, the defendant was present and ready to proceed. The appellant challenged this dismissal and the subsequent rejection of his application for restoration. The High Court, after hearing both sides, observed that the dismissal under Order IX Rule 8 was illegal because the rule applies only when the defendant appears and the plaintiff does not. Since the defendant was present, the court could not dismiss the suit for default. The High Court set aside the impugned order and restored the suit to its original number, directing the trial court to dispose of the suit expeditiously, preferably within one year from the date of the order. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Dismissal for Default - Order IX Rule 8 CPC - Non-Prosecution - The trial court dismissed the suit for non-prosecution when the plaintiff's counsel was absent, though the defendant was present. The High Court held that dismissal under Order IX Rule 8 is not warranted when the defendant is present and ready to proceed, as the rule applies only when the defendant appears and the plaintiff does not. The court set aside the dismissal and restored the suit, directing expeditious disposal. (Paras 4-6) B) Civil Procedure - Restoration of Suit - Order IX Rule 9 CPC - The plaintiff's application for restoration was rejected by the trial court. The High Court found that the dismissal was illegal and therefore the restoration application should have been allowed. The court set aside both the dismissal order and the rejection of restoration, restoring the suit to its original number. (Paras 5-6)
Issue of Consideration
Whether the trial court was justified in dismissing the suit for non-prosecution under Order IX Rule 8 of the Code of Civil Procedure, 1908 when the defendant was present and ready to proceed, and whether the impugned order rejecting the application for restoration was proper.
Final Decision
The appeal is allowed. The impugned order dated 14.8.2014 is set aside. Special Civil Suit No.524 of 2007 is restored to its original number. The trial court is directed to dispose of the suit expeditiously, preferably within one year from the date of the order. No order as to costs.
Law Points
- Order IX Rule 8 CPC
- dismissal for default
- non-prosecution
- restoration of suit
- presence of defendant
- absence of plaintiff's counsel
