Case Note & Summary
The petitioners, who are defendants in a suit for declaration and recovery of possession filed by the respondent/plaintiff, challenged an order dated 21.02.2018 passed by the X Additional City Civil and Sessions Judge, Bangalore, in O.S.No.9398/2013. By that order, the Trial Court restored the suit for further proceedings after recalling its earlier order passed in the morning session dismissing the suit for non-prosecution. The Trial Court's restoration order was made on the same day upon the plaintiff's application under Section 151 CPC, with a cost of Rs.5,000/-. The petitioners contended that the restoration order was passed without notice to them and that the Trial Court had become functus officio after dismissing the suit. The High Court, however, held that the Trial Court had inherent powers under Section 151 CPC to recall an order passed without proper application of mind or due to non-appearance, especially when the restoration was sought on the same day. The Court noted that the order was procedural and did not cause any prejudice to the defendants, who could raise all their contentions in the suit. Consequently, the High Court dismissed the writ petition, finding no ground for interference under Article 227 of the Constitution of India.
Headnote
A) Civil Procedure - Restoration of Suit - Inherent Powers - Section 151 CPC - The Trial Court dismissed a suit for non-prosecution in the morning session and later, on the same day, upon the plaintiff's application, recalled that order and restored the suit. The High Court held that the Trial Court acted within its inherent powers under Section 151 CPC to recall an order passed without proper application of mind or due to non-appearance, and such restoration on the same day does not require notice to the defendants as it is a procedural order. (Paras 1-4)
B) Writ Jurisdiction - Article 227 of the Constitution of India - Interference with Interlocutory Orders - The High Court declined to interfere under Article 227, observing that the impugned order was a procedural order restoring the suit on the same day of dismissal, and no prejudice was caused to the defendants as they could raise all contentions in the suit. (Paras 4-5)
Issue of Consideration
Whether the Trial Court could recall its earlier order dismissing the suit for non-prosecution and restore the suit on the same day without notice to the defendants, and whether such order is amenable to writ jurisdiction under Article 227 of the Constitution of India.
Final Decision
The High Court dismissed the writ petition, holding that the Trial Court acted within its inherent powers under Section 151 CPC in recalling the dismissal order and restoring the suit on the same day. The Court found no merit in the petition and declined to interfere under Article 227.
Law Points
- Restoration of suit
- recall of dismissal order
- inherent powers under Section 151 CPC
- same day restoration
- no notice to defendant required for procedural order
Case Details
2018 LawText (KAR) (08) 37
Writ Petition No. 14380/2018 (GM-CPC)
Hon'ble Mr. Justice Dinesh Maheshwari, Chief Justice
Smt. Rupa Ron, Advocate for Sri Poonacha C M, Advocate (for petitioners); Sri R. Nataraj, Advocate (for respondent)
Mr. Manjunath Dasappa, Smt. Vrinda Manjunath, Trans Properties
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Nature of Litigation
Civil writ petition under Article 227 of the Constitution of India challenging an interlocutory order restoring a suit for declaration and recovery of possession.
Remedy Sought
The petitioners (defendants in the suit) sought to quash the order dated 21.02.2018 passed by the Trial Court restoring the suit for further proceedings.
Filing Reason
The Trial Court dismissed the suit for non-prosecution in the morning session and later, on the same day, restored it upon the plaintiff's application under Section 151 CPC without notice to the defendants.
Previous Decisions
The Trial Court had initially dismissed the suit for non-prosecution on 21.02.2018 in the morning session, but later recalled that order and restored the suit on the same day.
Issues
Whether the Trial Court had the power to recall its earlier order of dismissal for non-prosecution and restore the suit on the same day under Section 151 CPC.
Whether the impugned order restoring the suit without notice to the defendants is liable to be interfered with under Article 227 of the Constitution of India.
Submissions/Arguments
The petitioners argued that the Trial Court became functus officio after dismissing the suit and could not restore it without notice to them.
The respondent/plaintiff contended that the restoration was a procedural order passed on the same day and within the inherent powers of the court.
Ratio Decidendi
A Trial Court has inherent powers under Section 151 CPC to recall an order of dismissal for non-prosecution passed earlier on the same day, especially when the restoration is sought promptly and the order is procedural in nature. Such restoration does not require notice to the defendants as it does not cause any prejudice, and the defendants can raise all contentions in the suit.
Judgment Excerpts
The Trial Court restored the suit on the very date of dismissal with the short order...
Learned counsel for the petitioners submits that the Trial Court had become functus officio after dismissing the suit and could not have restored it without notice to the defendants.
Having heard learned counsel for the parties and having perused the material placed on record, this Court is not inclined to interfere with the impugned order.
Procedural History
The suit O.S.No.9398/2013 was filed by the respondent/plaintiff for declaration and recovery of possession. On 21.02.2018, the Trial Court dismissed the suit for non-prosecution in the morning session. Later the same day, upon the plaintiff's application under Section 151 CPC, the Trial Court recalled the dismissal order and restored the suit with a cost of Rs.5,000/-. The defendants/petitioners challenged this restoration order by filing the present writ petition under Article 227 of the Constitution of India.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 151
- Constitution of India: Article 227
