Case Note & Summary
The dispute arose from a civil suit filed by respondent no.1, Dickson Almeida, seeking a declaration that a Gift Deed dated 17/12/1996 was null and void. He claimed to be employed in New York since 1996 and visited Goa once in three years. The suit was filed in the Court of Senior Civil Judge, Margao, with the defendants being the present petitioners. During the proceedings, the plaintiff's advocate issued a notice of withdrawal from appearance by registered post, but the plaintiff failed to appear on subsequent dates. Consequently, on 30/01/2015, the suit was dismissed for default due to non-appearance of the plaintiff and his counsel. The plaintiff, learning of the dismissal through his attorney, promptly filed an application for restoration. The Additional Senior Civil Judge, by order dated 12/08/2016, allowed the restoration application, setting aside the dismissal order, after finding that the default was not willful or negligent. The petitioners, who were the defendants in the suit, challenged this order by way of a writ petition under Article 227 of the Constitution of India before the High Court of Bombay at Goa. Their main contention was that the plaintiff's advocate had sent the withdrawal notice to a different person named 'Gangadhar Anjikhan', as reflected in the postal receipt, thereby making the service dubious and the restoration order illegal. The respondent no.1, the original plaintiff, argued that the registered parcel number on the postal receipt matched the number on the notice of withdrawal, indicating that the notice was correctly addressed but the postal clerk erroneously recorded a different name; the acknowledgment card, duly signed upon delivery, should prevail over the receipt. The High Court examined the records and noted that the plaintiff was not at fault for the postal discrepancy and had acted without negligence. It observed that the trial court had correctly appreciated that the acknowledgment card of the registered post, which evidenced delivery to the addressee, carried more weight than the postal receipt. The High Court held that the trial court's order did not suffer from any illegality or perversity and declined to interfere in exercise of its supervisory jurisdiction under Article 227. Consequently, the writ petition was dismissed with no order as to costs, and the rule was discharged.
Headnote
A) Civil Procedure - Restoration of Suit Dismissed for Default - Order IX Rule 9, Code of Civil Procedure, 1908 - The trial court set aside the dismissal order upon finding that the plaintiff's default was not due to negligence, relying on the acknowledgment card of the registered post despite a discrepancy in the postal receipt - High Court held that the finding was reasonable and not perverse, and therefore did not warrant interference under Article 227 (Paras 6-9). B) Constitutional Law - Supervisory Jurisdiction - Article 227, Constitution of India - Scope of interference - High Court may interfere only if the order is patently illegal or suffered from jurisdictional error - The trial court's order was found to be just and proper, and the writ petition was dismissed (Paras 8-9).
Issue of Consideration
Whether the Additional Senior Civil Judge's order restoring the suit and setting aside the dismissal order dated 30/01/2015 was illegal, perverse, or suffered from any jurisdictional error warranting interference under Article 227 of the Constitution of India.
Final Decision
The High Court dismissed the writ petition, holding that the trial court's order restoring the suit was not perverse or illegal. The court found no fault with the trial judge's reasoning that the default was not due to negligence and that the acknowledgment card of the registered post prevailed over the postal receipt. Rule discharged, no order as to costs.
Law Points
- supervisory jurisdiction under Article 227 is limited
- interference only in case of patent illegality or perversity
- restoration of suit dismissed for default not to be set aside if default was not due to negligence
- acknowledgment card of registered post prevails over discrepancy in postal receipt
