CONDONATION OF DELAY, SETTING ASIDE EXPARTE ORDER, DECREE, ABATEMENT, AND RESTORATION OF SUITS WITH SPECIAL REFERENCE TO ORDER 22 OF CPC – A LEGAL STUDY.
Y. SRINIVASA RAO,
M.A (English Lit.)., B.Ed., LL.M.,
Research Scholar in Law of Tort.,
Principal Senior Civil Judge, Tirupati.
One of the many aspirations set out in the Constitution of India is the operation of a legal system that promotes justice on the basis of equal opportunity. One of the biggest challenges that is facing our Judiciary today is the inordinate delay in the disposal of civil cases. The Code of Civil Procedure, 1908, besides Civil Rules of Practice, which is the law governing procedure of courts in civil judicature required the manner in which suit is to be disposed of. “The main question which arises in this essay is whether the prevailing delay in disposal of interlocutory applications in civil litigation can be curbed”. The thoery of alternate dispute resolution system is well stated by Abraham Lincoln—
“Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time.”
In India, Section 89 of the Code of Civil Procedure has been amended w.e.f. 1-7-2002 with a view to bring alternative systems into the mainstream. After having come to know about the huge pendency of Interlocutory applications in Subordinate Courts, I am prompted to share my views and also apprise the Judicial Officers with the law settled by the Supreme Court and the High Courts with regard to the scope and power of Subordinate Courts in adjudication or determination of Interlocutory applications. Thousands of Interlocutory applications are pending in subordinate courts , more in particular, the applications under Order 9, Rule 7, Order 9 Rule 9, Order 9 Rule 13, Order 22 Rules 3, 4, and 9 of CPC and section 5 of the Limitation Act,1963 which cause hurdle for disposal of main cases.
Section 5 of Limitation Act,1963:–
Rules of limitation are not meant to destroy or foreclose the rights of the parties . It is always fair and appropriate that matters be heard on merits rather than shutting the doors of justice at the threshold. The main purpose for which Section 5 of the Limitation Act, 1963 was enacted is to enable the Court to do substantial justice and that is the precise reason why very elastic expression sufficient cause is employed therein, so as to sub-serve the ends of justice Section 5 Expression sufficient cause employed therein is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice No hard and fast rule can be laid down in dealing with the applications for condonation of delay. See. Oriental Aroma Chemical Industries Ltd. Vs Gujarat Industrial Development Corporation and another – 2010 (2) SCJ 973 ( D.B. ). See also. Agolapu Raju Vs Agolapu Gangaram – 2016 (3) ALT 429. Section 5 of theLimitation Act, 1963, expression ‘sufficient cause’ must receive a liberal construction so as to advance substantial justice, as was held in State of Karnataka Vs Y. Moideen Kunhi (dead) by Lrs. and others – 2009 (5) SCJ 606 ( D.B. ). For condonation of delay, sufficient cause be shown Court must not be pedantic in deciding delay condonation petition It should not be dismissed on the mere ground of long delay if the explanation offered is bona fide In the present case. See. Majji Somulu @ Swamynaidu Vs Majji Nagaraju @ Nagesh & Ors, 2015 (6) ALT 301. In Vardhineedi Narasimha Rao Vs Gadiraju Bapiraju – 2015 (6) ALT 740 , the contention of D.Hr. that Section 5 of Limitation Act does not apply to revision/review petitions filed in cases arising out of applications filed under Order 21, CPC is rejected.
Sufficient cause is distinct from good cause:- Sufficient cause is distinct from good cause, in that, the requirement of good cause is complied with on a lesser degree of proof than that of sufficient cause Sufficient cause be given liberal interpretation, but only as long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned Court has no power to extend period of limitation on equitable grounds. See. Basawaraj and another Vs Special Land Acquisition Officer, 2013 (6) ALT(SC) 43 ( D.B. ). See also. K. Chandra Sekhara Rao (died per LRs) and others Vs District Collector, Ranga Reddy District, Hyderabad and others – 2019 (1) ALT 377.
Earlier view of day-to-day explanation:- One cannot now dispute the legal proposition that the earlier view of the Apex Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of the Hon’ble Supreme Court and is, therefore, held as no longer good law. Observing the same, it was held that cause shown by the appellant for condoning the delay in filing the appeal before the High Court was/is a sufficient cause within the meaning of Section 5 of the Limitation Act and, therefore, the application filed by the appellant for Condonation of delay of 554 days in filing the appeal deserves to be condoned Appeals succeed and are accordingly allowed Impugned order is set aside. See: Ummer Vs Pottengal Subida and others – 2018 (3) ALT (SC) 11 ( D.B. ).
Earlier, in Chairman and Managing Director, APSPDCL, Tirupathi, Chittoor Dist. and another Vs G. Venkatesh and another – 2017 (6) ALT 121, it was pointed out thatthe offer of the petitioner cannot be accepted in view of the judgment of the Apex Court in GMG Engineering Industries and others v. Issa Green Power Solution and others ((2015) 15 SCC 659) wherein the Apex Court held that while the trail Court has exercised the discretion to condone the delay in filing the application to set aside the exparte decrees, should not have imposed onerous condition of depositing the amount In the instant case, the delay was deliberate inaction on the part of the petitioners-government agency, who failed to respond even after receiving summons from the Court Except stating that the concerned clerk did not bring the same to the notice of the Superintending Engineer, with regard to receipt of suit summons, the petitioners did not explain the day today delay or even month to month delay, in filing the application to set aside the exparte order From the judgments referred to above, it is clear that the delay cannot be condoned as a matter of course and that a reasonable and sufficient cause has to be shown, as to why the delay has occurred In the present case, there is absolutely no explanation with regard to delay, which is nearly 1000 days Accordingly, the Civil Revision Petition is dismissed.
In 2019, in M.S. Naudine Pharma, rep. by its Partner and another Vs M/s. Med Manor Organics Pvt. Ltd., rep. by its Director – 2019 (2) ALT 270, it was held that the need to explain every days delay is no longer necessary. The length of the delay is not the criteria but the correctness of the reasons or the explanation for the delay is the important factor As per the settled law on this subject, sufficient cause has to be liberally interpreted provided negligence, inaction, lack of bona fides etc., are not made out. The purpose of the Courts are established to render justice. There is no hard and fast rule for condoning the delay and each case should be dealt with on its own merits.
When there is no specific provision, then inherent powers under Section 151 CPC can be invoked :- The settled proposition of law is that an application under Section 5 of the Limitation Act is not maintainable in case where a special enactment of Payment of Gratuity Act is holding the field under Section 7 (7) of the Act The inherent powers of the High Court cannot be invoked in such a case where there is a specific provision. When there is no specific provision, then inherent powers under Section 151 CPC can be invoked . See. Narahari Kamala Sastry, Correspondent, Siddardha College of Education, Nellore District and another Vs State of A.P. rep. by its Secretary, Department of Labour and Employment, Viajawada and others – 2019 (3) ALT 380.
Distinction between the question of limitation under the Limitation Act, 1963 or the limitation prescribed by Special Enactments :- The fundamental distinction between the question of limitation under the Limitation Act, 1963 or the limitation prescribed by Special Enactments and the question of delay and laches is that the period to be reckoned in respect of the former is statutorily fixed, while the period to be reckoned in respect of the latter, depends upon the facts and circumstances of each case. See. State of Andhra Pradesh, rep. by District Collector, Chittoor District Vs Estate Abolition Tribunal, Chittoor (District Judge, Chittoor) and others – 2019 (1) ALT 462.
Interplay of Sections 29 and 5:- As per Section 29 for invoking Section 5, twin requisites to be satisfied are (i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application (ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act. See. K. Somasekhar Reddy and others Vs State Anti Corruption Bureau, rep. by its Inspector of Police, 2015 (3) ALT(CRI.) 181
No demur for application of Limitation Act to proceedings in Criminal Court :- Preamble of Limitation Act, though, predominantly refers to civil matters, does not exclude its application altogether to proceedings before criminal court, may be in a limited sphere. See. K.Venkeswara Rao and another v. Bekkam Narasimha Reddi and others, AIR 1969 SC 872 and K. Somasekhar Reddy and others Vs State Anti Corruption Bureau, rep. by its Inspector of Police, 2015 (3) ALT(CRI.) 181. See also. A.Sambaiah Nayak and another Vs State of Telangana, rep. by its Special Public Prosecutor, 2017 (1) ALT(CRI.) 372
Abald unsubstantiated statement in the affidavit:-
In Allala Bhagavanth Rao Vs Garvandula Vijayalaxmi and others – 2016 (4) ALT , it was observed that petitioner not made out any sufficient cause except making a bald unsubstantiated statement in the affidavit Courts cannot allow petitions under Section 5 of Limitation Act, when no sufficient cause is made out Therefore, basing on lame excuse or unsubstantiated cause, delay cannot be condoned liberally. However, in D. Manemma and another Vs V. Anantha Reddy (died) per L.Rs. and others – 2013 (2) ALT 332 , it was held that having accepted the costs without any protest, petitioners/defendants are not entitled to question the order condoning the delay.
Application under Section 5 of Limitation Act and Order 9 Rule 13 CPC:- Under the said provision, if the appeal preferred against ex parte judgment is disposed of on any ground other than the ground that it was withdrawn, an application under Order 9 Rule 13, CPC is not maintainable In the present case, appeal was not disposed of, on merits Withdrawing the appeal or not pressing the appeal is one and the same as in both the cases, there will be no order on merits No illegality committed by lower court in allowing the petition Revision petition by plaintiff dismissed as devoid of merits. See. S. Davender Reddy Vs S. Ravinder Reddy, 2016 (4) ALT 53. In another case,application under Section 5 of the Limitation Act seeking condonation of delay of 101 days in filing application under Order 9 Rule 13 CPC, the Hon’ble Court held that petitioners, in their affidavit, categorically stated about the knee operation undergone by their Counsel at Hyderabad But the said aspect missed the attention of the Court below Since it is a suit for partition and substantial rights of parties are involved and having regard to the reasons stated in the affidavit, held, this Court is of the considered opinion that the ends of justice would be served, if the petitioners are permitted to prosecute the suit, however, subject to certain terms Revision allowed, subject to payment of costs of ` 2,000/- to the plaintiffs within a period of three weeks from date of receipt of copy of this order. See. Padigi Pedda Ranga Reddy and others Vs Padigi Sreerami Reddy and others – 2016 (6) ALT 341. See also. P. Buchanna Vs B. Yadagiri – 2017 (3) ALT 596; Gudu Saheb Vs Shaik Khasim Saheb – 2020 (4) ALT 485; and Chittibomma Veera Venkata Raju Vs Chittibomma Sakuntala – 2020 (3) ALT 589. Collector is not a Civil Court:- Provisions of Section 5 of the Limitation Act have not been made applicable to proceedings before the Collector under the Act. See. Bhagwan Das and others Vs State of U.P. and others – 2010 (2) SCJ 865. See also. D. Umarani and others Vs District Collector, Karimnagar and others – 2015 (1) ALT(REV.) 468.
Whether the decision of second appellate authority to entertain second appeals filed after the prescribed period of limitation and to pass interlocutory and final orders, is valid:- In A. Sridhar and others Vs II Appellate Authority and Deputy Commissioner of Labour (Twin cities), Hyderabad and others – 2017 (4) ALT 51 , it was held that in view of the law laid down by the Full Bench of this Court in the Nalgonda Co-operative Marketing Society Limited, rep. by its Secretary, Sri S.Narahari v. Labour Court, Hyderabad, rep. by its Presiding Officer, Hyderabad and others (1993 (2) ALT 661), directly on the point and also in view of the judgment of the Supreme Court in M.P. Steel Corporation v. Commissioner of Central Excise ((2015) 7 SCC 58), this Court is of the considered opinion that a second appeal is not maintainable, unless the same is filed within 30 days from the date of receipt of copies of orders of the first appellate authority If no second appeal is filed within 30 days, the second appellate authority is denuded of power to entertain the second appeals and becomes functus officio Thus, even assuming that the second appellate authority has considered the delay in filing second appeals, as second appeals are not maintainable if they are not filed within 30 days, it would have no power and jurisdiction to decide the second appeals Therefore, the second appellate authority erred in entertaining the second appeals filed by the 3rd respondent-Bank after the prescribed period of 30 days and disposing of the same on merits The decisions made by the second appellate authority are perverse Thus, the orders of the second appellate authority made in M.P. Nos.1 to 40 of 2008 and final orders in S.A. Nos.10, 12, 28, 29, 30, 32, 33, 35 and 40 of 2008, impugned herein, liable to be and accordingly set aside. In this case, the Writ petitions are allowed.
Matter of discretion of the Court :–
It is now a crystallized principle in our jurisprudence that condonation of delay is a matter of discretion of the Court and Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain or even a reasonable limit. Length of delay is, thus, not of significance, but what is most vital is the acceptability of the explanation and that was the only criteria by which the cause for condonation of delay should be judged. The main purpose for which Section 5 was enacted was to enable the Court to do substantial justice and that is the precise reason why very elastic expression sufficient cause is employed therein, so as to sub-serve the ends of justice. It is well to remember that the very purpose sought to be achieved by the Courts is to sub-serve the ends of justice Therefore, when substantial justice and technical consideration are pitted against each other, cause of substantial justice had to be preferred to that of the technicalities, inasmuch as, no party can every claim a vested right when injustice is being done, all due to the delay in approaching the Court by the other party. See. G. Haribabu Vs Lagula Krishnaiah Goud and others , 2017 (6) ALT 136 .
The date of order mentioned in Section 5 of the Limitation Act means:- he expression within 30 days after making of the order means within 30 days after the date on which communication of the order reached the affected party The time can begin to run only from the date on which the decision is communicated The date of order mentioned in Section 5 of the Limitation Act means date of knowledge of that order Knowledge means knowledge of the contents of the order, but not mere knowledge that an order was passed. See. K. Chandra Sekhara Rao (died per LRs) and others Vs District Collector, Ranga Reddy District, Hyderabad and others – 2019 (1) ALT 377.
Some cases where section 5 petitions are dismissed:-
If sufficiency of cause is not shown for condonation of delay, generally, such petitions are liable for dismissal. There are some cases where application for condonation of delay was dismissed. See. A.P. Housing Board, rep. by its Housing Engineer, Vijayawada, Krishna District and another Vs G. Vijaya Bhaskar Rao – 2018 (1) ALT 334 ( D.B. ); State of Andhra Pradesh, rep. by its Principal Secretary, Collegiate Education, Guntur District, and others Vs Darsi Phebe Sarah and another – 2017 (6) ALT 689 ( D.B. ); G. Haribabu Vs Lagula Krishnaiah Goud and others – 2017 (6) ALT 13. In Jagdish Vs Smt. Saresh and others – 2018 (2) An.W.R. 379, it was observed that due Diligence by applicant-appellant Appellant along with respondent-driver was held liable jointly and severally Held, mere technicalities should not stand in the way of dispensation of substantial justice, applicant-appellant is unable to show that due diligence was exercised by him It is clear that a casual approach was adopted and the present is clearly not a case which calls for a liberal delineation Applications seeking Condonation of delay in filing of this appeal and exemption from complying with condition as provided under proviso to Section 173 (1) of the Motor Vehicles Act, 1988, are dismissed Main appeal also stands dismissed. The Hon’ble Full Bench of the Apex Court in Baljeet Singh (Dead) through Lrs. and others etc. etc. Vs State of U.P. and others – 2019 (5) ALT(SC) 298 ( F.B. ), held that to make out a case for condonation of delay, the applicant has to make out a sufficient cause/reason which prevented him in initiating the proceedings within the period of limitation The applications for condonation of delay stand dismissed.
Applicability of section 5 of Limitation Act to SARFAESI Act :-
The provisions of Section 5 of the Act of 1963 would therefore be very much applicable to an application filed beyond time under Section 17(1) of the SARFAESI Act The Appellate Tribunal did not adjudicate upon the findings of the Tribunal as to the petitioner company failing to substantiate sufficient cause for condonation of the delay under Section 5 of the Act of 1963 Writ petition is accordingly allowed. See. Porus Laboratory Private Limited Vs Indian Bank, Asset Recovery Management Branch, Hyderabad and another – 2018 (5) ALT 108 ( D.B. ).
There is no general proposition that mistake of counsel by itself is a sufficient ground for condoning delay It is always a question of fact whether the mistake committed by a counsel is bona fide or merely a device to cover laches on the part of litigant or an attempt to save limitation in an underhand way. See. V.S.H. Babu Vs V. Savithri & Ors, 2015 (4) ALT 134. As was pointed out in Allavarapu Veerabhadra Rao and others Vs Paasi Tata and others – 2015 (4) ALT 368, silence of appellants for more than two years would create a legitimate expectation in the respondents that the litigation has come to an end Respondents cannot be subjected to prolonged litigation by condoning inordinate delay in the absence of proper explanation Application and consequently the appeal dismissed. What principles are to be applied for Condonation of delay under section 5 of the Limitation Act are succinctly explained in State of A.P. and another Vs Allu Swaminaidu and others, 2000 (1) ALT 444. In State of A.P. and another Vs Allu Swaminaidu and others – 2000 (1) ALT 444, it was observed that where public interest is involved, delay can be condoned and heavy costs can be imposed for negligence by the State. As per decision in Om Prakash Vs Ashwani Kumar Bassi – 2010 (7) SCJ 415 ( D.B. ), section 5 of the Act can be applied in Rent Control cases.
Conditions for condonation of delay:-
While considering whether or not to condone delay, the guiding principle is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. (Para 21). – M. Rajamannar Vs. B. Fakruddin – 2014 (6) ALT 802. Costs accepted without protest:- Having accepted the costs without any protest, petitioners/defendants are not entitled to question the order condoning the delay. (Para 13).- D. Manemma and another Vs. V. Anantha Reddy (died) per L.Rs. and others – 2013 (2) ALT 332. Imposition of a condition to file an affidavit in lieu of chief-examination of plaintiff for allowing an application filed for condonation of delay in filing the application to restore the suit dismissed for default is improper. – P. Ranjith Kumar Reddy v. S. Satyanarayana Raju – 2008 (2) ALT 565. Reasons that are sufficient to condone delay in filing an application under Order 9 Rule 13, CPC would hold good for setting aside the ex parte decree also. (Para 7). – K. Bhaskar Reddy and others Vs. Ahmed Waseemuddin and another – 2013 (1) ALT 100. Inordinate delay in prosecuting the suit by wanton and deliberate negligence cannot be condoned. (Para 12). See. Mohd. Rafiuddin Vs. Sri Amruthlal –2012 (3) ALT 673.
Exparte Orders and decrees – Restoration – Set aside – under Order 9 Rules 7, 9 and 13 of CPC:-
Separate application for condonation of delay u/Sec. 5 of limitation not necessary :- If the affidavit filed in support of an application filed for restoration of a suit dismissed for default or on a representation made by Counsel of the party that the parties compromised the suit out of Court, makes out sufficient cause for condonation of delay and the reasons given are convincing, they can be taken into account without the necessity to file a separate application for condonation of delay under Section 5 of the Limitation Act, as the language of the said Section does not expressly or by necessary implication mandate the filing of a written application to obtain a relief under the said Section. (Paras 28 and 29). – Basheerunnisa Begum (died) per L.Rs. Vs. Meer Fazeelath Hussaini (died) per L.Rs. and others – 2014 (2) ALT 97 .
Order 9 Rule 7:– Mere pendency of application to set-aside the exparte order is not a ground to take advantage to disobey the order of the Court/Tribunal. (Para 10). – Syed Sadullah Hussaini and another Vs. Syed Waliullah and another- 2017 (1) ALT 553.
Practice and Precedents:- Pre 1954 Judgments of Madras High Court Not binding on the High Court of Andhra.- E. Mangamma Vs. A. Muniswamy Naidu – 1982 (2) ALT(NRC) 87 ( D.B. ).
Petition filed by the plaintiffs advocate to set aside the exparte order. Whether court can dismiss the petition on the ground that no fresh vakalat has been filed.:- Held:-It is manifest that if the default order is set aside the suit will be restored to its original number and will not be treated as a fresh suit requiring a fresh vakalatnama. It would be anomalous if a fresh or special vakalat is required for the limited purpose of getting the suit restored to file. -Turlapati Nagabhushanam and others Vs. Kancheti Narasimhayya and others –1975 (1) ALT 541.
Exparte decree:– Where the defendant is set ex parte, the trial court is not relieved of its duty to examine the merits of the matter and to render a reasoned judgment before passing a decree. – Namburi Chenna Reddy and others v. Devireddy Kotareddy and others – 2006 (2) ALT 369. Executing Court is not competent to entertain objection of judgment-debtor in execution as to jurisdiction of Court which passed the decree and to hold the decree as a nullity. – Union Bank of India, Ongole. Vs. M. China Ankaiah and others – 1988 (2) ALT(NRC) 38.1.
Order 9 Rule 13- Expression “upon such terms as to costs as. the Court thinks fit” Scope and effect:- Rule 13 of Order 9 C.P.C. lays down that two grounds on which the Court can set aside on exparte decree passed against the defendant consequent upon his failure to attend the Court on the day to which the trial or hearing of the suit was posted; The grounds are stated in the second paragraph of the rule which are (I) non-service of summons and (2) non- appearance for sufficient cause.- Tadikonda Sree Ramulu Vs. M. Venkata Narasimha. & Others –1979 (2) ALT 394.
Limitation to set aside exparte decree– Art. 123 :- The application is not barred by limitation. In the present case, the certified copies having been received by the petitioner on 28-2-1991, the knowledge of passing of the decree can be attributed to the petitioners only as on that date. The limitation commences from that date. The application under Order 9, Rule 13 C.P.C. filed by the petitioners on 25-3-1991 is within 30 days from the date of the receipt of the certified copies of the judgment and decree. i.e. on 28-2-1991. – K.R. Pentaiah Vs. Mandabad Harijana Abhivrudhi Sangam – 1992 (2) ALT 333.
Dismissed for default:-
Suit is dismissed for default:- Order 9 Rule 9. In a case where suit is dismissed for default on account of plaintiffs absence to appear on the day to which it was posted, when sufficient cause is shown for his absence on that day and when restoration application was filed within time without any delay, his absence on the earlier dates of hearing, if any, should not be taken into account for consideration of such application. (Para 12). – Chapiri Kuderu Shakshavali and another Vs. Shaik Isthak Ahamed and others –2016 (1) ALT 735.
Bar of fresh suit:– Dismissal of suit under Order 9 Rule 8, CPC bars fresh suit in respect of the same cause of action. It does not preclude fresh suit if the cause of action is separate and distinct. (Para 17). – Yachamaneni Chandra Mohan Rao and another Vs. Edmala Narsamma @ Narsavva and others – 2015 (5) ALT 611.
Restoration of interim orders:-
Once the main case is restored to file by setting aside the order of dismissal, the I.As. filed therein earlier and interim orders passed therein automatically get restored even in the absence of a specific order in that regard, unless the Court passed an express order declining such restoration. (Para 8).- Sri Sanjeevi Mechanical Works Pvt. Ltd., rep. by its Managing Director (died) per L.Rs. Vs. Amberlite Resins Pvt. Ltd, rep. by its Managing Director, Sri A.S.Narayana – 2015 (4) ALT 57. Suit for compensation is dismissed for default:- Lower court ought to have been more generous in considering the application by mother for restoration of suit dismissed for default as it is a suit claiming compensation for the death of her son due to collapse of school building. (Paras 4 and 5). – G. Shareefunnisa Begum Vs. Kurnool Municipal Corporation, rep. by its Municipal Commissioner and others –2015 (1) ALT 758.
Cancellation of ex parte decree:- Filing of a separate suit for cancellation of an ex parte decree by the parties to such decree without following the procedure prescribed by Order 9 CPC for setting aside of such decree or without preferring an appeal against such decree is opposed to provisions of CPC and also to public policy. (Paras 8 and 9). Filing of a separate suit to set aside the decree is available only to a person who was not a party to the decree sought to be set aside. See. Nannuri Sathi Reddy Vs. Nannuri Narsi Reddy and others – 2012 (2) ALT 113.
Imposition of costs:– Each and every order passed imposing costs cannot be brought within the ambit of Section 35-B, CPC unless it is made so clear in the order by recording reasons for imposition of such costs.(Para 11). See. V.Veeresh and another v. Chiloth Kumari – 2011 (5) ALT 248.
Dismissal of appeal for default is set aside:-
Revision against order of dismissal passed by trial court in IA No.668/2006 for appointment of Advocate Commissioner to partition suit schedule properties on ground that dismissal of earlier application, I.A. No.885/1999, operates as res judicata. – Once the decree of dismissal of appeal for default is set aside, no decree exists. Therefore, I.A. No.885/1999 for appointment of Advocate Commissioner on basis of such decree held, not valid and maintainable – Any order passed by the Court taking into consideration such a decree is not valid – Consequently principles of res judicata not applicable. – Rapally Siddhamma v. Kokkula Gangubai (Died) and others – 2011 (4) ALT 24.
Dismissal of suit for default :- Application made under Order 9 Rule 9, CPC for restoration of suit dismissed for default on the ground of plaintiff appearing but not proceeding with suit is maintainable as his mere presence cannot be considered as appearance under Explanation added to Rule 2 of Order 17 CPC by A.P. State Amendment.(Para 7). – Vemana Venkataratnam v. Koppanna Chakradharudu and others. – 2010 (4) ALT 263.
Limitation Act, 1963, Sections 122 and 137:-
Civil Procedure Code, 1908, Order 9 Rule 9 – Application filed under Order 9 Rule 9 CPC seeking restoration of application filed for setting aside ex parte decree – Whether barred by limitation – Held: Word ‘suit’ under Section 2 (l) of the Act excludes an appeal or an application – Article 122 of the Act does not apply to miscellaneous applications – Application filed under Order 9 Rule 9, CPC for restoration of a miscellaneous application does not fall within the scope of Article 122 which prescribes period of limitation of 30 days from date of dismissal. No specific provision under the Act dealing with applications for restoration of miscellaneous applications. All such applications therefore governed by residuary Article 137 under which period of limitation is three years from the date when the right to apply accrues – The definition of the word ‘suit’ under Section 2 (l) of the Limitation Act expressly excludes an appeal or an application. It is also clear that Article 122 has been confined only to an “application for review” but not miscellaneous application. Hence undoubtedly the application under Order 9 Rule 9 of C.P.C. for restoration of a miscellaneous application filed for setting aside an ex parte decree does not fall within the scope of Article 122. (Para 22)Since there is no other specific provision in the Limitation Act, 1963 dealing with an application for restoration of miscellaneous applications, all such applications shall be governed by the residuary article of the Limitation Act i.e., Article 137 under which the period of limitation has been prescribed as three years from the date when the right to apply accrues. (Para 24)In the instant case, I.A.No.188 of 1996 was dismissed for default on 7.6.2006 and thereafter I.A.No.364 of 2008 was filed under Order 9 Rule 9 of C.P.C. for its restoration in June, 2008. Thus it was well within the period of limitation of 3 years prescribed under Article 137. Therefore the conclusion of the Court below that I.A.No.364 of 2008 was barred by limitation and there was no explanation for the delay was erroneous. (Para 25). See. L. Venkata Krishna Reddy (Died) Per L.Rs. v. M. Anjinappa (Died) and others.- 2010 (3) ALT 817.
Order XLI Rule 17 r/w Order XLII Rule 1:-
Once an appeal is admitted and is placed for hearing i.e., hearing on merits, it can be dismissed for default but cannot be decided on merits in absence of appellant (or his advocate). See. – Secretary, Department of Horticulture, Chandigarh and another Vs. Raghu Raj – 2009 (1) SCJ 21 ( D.B. ).
Second revision petition :-–
Second revision petition is maintainable if earlier revision petition was dismissed for default due to absence of both parties.(2) Applicability of CPC – Provisions of CPC are applicable to proceedings under A.P. (TA) Tenancy and Agricultural Lands Act, 1950. – Mothukuri Ranga Rao and another v. Royyala Laxminarayana and others – 2008 (4) ALT 96.
Dismissal of appeal for default:- Order 41 Rule 17. If appellant’s counsel does not address arguments, appeal be dismissed for appellant’s default – Dismissal of appeal on merits after hearing the arguments of respondent’s counsel is not legal. – Sk. Azgarali vs. Sk. Nazir Basha and others – 2007 (6) ALT 12.
Affidavit in I.A. as per Civil Rules of Practice, Rule 54:– – An interlocutory application should normally be supported by affidavit of party or the deponent should be a person who has knowledge of the facts sworn to in the affidavit. – B. Mallikarjuna Reddy Vs. G.V. Subba Reddy, 2007 (3) ALT 727.
Any recording made by a Judge in judicial proceedings is conclusive and absolutely correct Either lawyer or litigant cannot contradict it anywhere else except before the Judge himself. – Banwarilal Kedia and another v. A.P. State Electricity Board rep. by its Secretary, Hyderabad and others, 2006 (6) ALT 646 (DB).
Partition decree:- It is not mandatory that two kinds of decrees, preliminary and final, must be passed invariably where partition can be made without further enquiry. – Rakamapalem Bhupathamma (died) per L.Rs. v. Ambakam Varthamma, 2006 (4) ALT 440.
Passing of ex parte decree on the same day:– Passing of ex parte decree on the same day on which the suit was restored to file after setting aside the default order without giving opportunity to defendant to contest the matter is irregular and unjust. See. Zahoor Bee and others v. Unkonda Venkataiah (died) per L.Rs. – 2006 (3) ALT 431.
Past conduct of party:- Past conduct of party- Not to be taken into consideration in considering application filed for restoration – Court has to see whether there was sufficient cause for the absence of plaintiff on the relevant date to which case is posted. See. Mohd. Moizuddin Siddiqui and another vs. Mohd. Ismail – 2000 (6) ALT 401. Dismissal of application filed under Section 5 of Limitation Act for condoning delay in filing an application to restore the application filed under Section 148, CPC (for extension of time) dismissed for default on the ground that affidavit is filed by Advocate and not by the applicant – Unsustainable – Impugned order set aside. – T. Krishnaswamy vs. Maniyamma – 2000 (6) ALT 211.
Order 9 Rule 9 of CPC:-
Order 9 Rule 9 of CPC deals with restoration of suit, when it is dismissed for default. In a case where suit is dismissed for default on account of plaintiffs absence to appear on the day to which it was posted, the plaintiff has to show sufficient cause for his absence on that day. The restoration application must be filed within time. The period of limitation is 30 days from date of dismissal. It is well-settled law that for the laches on the part of the counsel, parties to the lis cannot be deprived of their legitimate right of adjudication. While considering whether or not to condone delay, the guiding principle is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. See. M. Rajamannar Vs. B. Fakruddin – 2014 (6) ALT 802. When sufficient cause is shown by the plaintiff for his absence on that day and when restoration application was filed within time without any delay, his absence on the earlier dates of hearing, if any, should not be taken into account for consideration of such application.
When a suit is dimissed for default, the following remedies are available to the plaintiff:-
If suit is dismissed for default under Or.9 Rule 8, the aggrieved plaintiff has two remedies:
- To apply Under Or.9 Rule 9 of CPC, for setting aside the order of the dismissal of the suit and for restoration of it.
- To apply review as was observed in Arjun Singh Vs. Mohindra Singh – (1964) 5 SCR 946.
- The review would lie subject to fulfilling one of grounds in Rule 1 Or.17 CPC
- There is a conflict of opinion as to application of review under Order 47 Rule 1. See. Chhaju Vs. Neki – AIR 1922 PC 112 , wherein it was observed that when a suit is dismissed for default, it is not an error apparaent on the face of record nor a case of discovry of new and important matter.
- An order grating a petition under Or.9 Rule 9 of CPC is deemed to be a ‘ case-decided’ in view of Sec. 115 of CPC; But, it is subject to revisional jurisdiction of High Court as was observed by Supreme Court in AIR 1991 SC 684 – Calc utta Port Trust Vs. Shalima Tar Products Ltd.
- One of the remedies to the plaintiff when suit is dismissed for default is to file an application for review.
- No appeal U/Sec. 96 CPC, if an order granting or rejecting an application for restoration of a suit dismissed for default is not a ”decree” in view of th dicta observed in AIR 1923 PC 114 in Kanhaya Lal’s case and Velayudu Versus Mohan – AIR 1923 Bombay 395. But , an appeal lies in view of the dicta observed by Full Bench in Doma Vs. Rama Naresh reported in AIR 1959 Pat 121.
- Plaintiff cannot file fresh suit in respect of the same cause of action, if the suit is disssed for default. But, with different cause of action, the plaintiff can file a fresh suit.
The defendant, against whom an ex-parte decree has been passed, can avail the following remedies:
- to apply to the court by which such decree is passed to set it aside: Or. 9, R.13 of CPC ;or
- to prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115 of Code where no appeal lies);
- to apply for review under Order 47 Rule 1 CPC;or
- to file a suit on the ground of fraud.
The above remedies are concurrent and they can be prosecuted simultaneously or concurrently as was pointed out in Mahesh Yadav Vs. Rajeshwar Singh,(2009) 2 SCC 205.
1. In a case where suit is dismissed for default on account of plaintiffs absence to appear on the day to which it was posted, when sufficient cause is shown for his absence on that day and when restoration application was filed within time without any delay, his absence on the earlier dates of hearing, if any, should not be taken into account for consideration of such application. – Chapiri Kuderu Shakshavali and another Vs. Shaik Isthak Ahamed and others – 2016 (1) ALT 735.
2. Dismissal of suit under Order 9 Rule 8, CPC bars fresh suit in respect of the same cause of action It does not preclude fresh suit if the cause of action is separate and distinct. – Yachamaneni Chandra Mohan Rao and another Vs. Edmala Narsamma @ Narsavva and others – 2015 (5) ALT 611.
3. Once the main case is restored to file by setting aside the order of dismissal, the I.As. filed therein earlier and interim orders passed therein automatically get restored even in the absence of a specific order in that regard, unless the Court passed an express order declining such restoration. – Sri Sanjeevi Mechanical Works Pvt. Ltd., rep. by its Managing Director (died) per L.Rs. Vs. Amberlite Resins Pvt. Ltd, rep. by its Managing Director, Sri A.S.Narayana – 2015 (4) ALT 57.
4. If the affidavit filed in support of an application filed for restoration of a suit dismissed for default or on a representation made by Counsel of the party that the parties compromised the suit out of Court, makes out sufficient cause for condonation of delay and the reasons given are convincing, they can be taken into account without the necessity to file a separate application for condonation of delay under Section 5 of the Limitation Act, as the language of the said
Section does not expressly or by necessary implication mandate the filing of a written application to obtain a relief under the said Section. – Basheerunnisa Begum (died) per L.Rs. Vs. Meer Fazeelath Hussaini (died) per L.Rs. and others – 2014 (2) ALT 97
5. Imposition of a condition to file an affidavit in lieu of chief-examination of plaintiff for allowing an application filed for condonation of delay in filing the application to restore the suit dismissed for default is improper. – P. Ranjith Kumar Reddy v. S. Satyanarayana Raju- 2008 (2) ALT 565.
6. As was observed in T. Bhanumathi Petitioner (Defendant).vs. R. Hanumantha Rao (died) and others Respondents (Plaintiffs) – 1996 (1) ALT 52, it is now well settled that when once the lower Court found that the cause for the absence of the petitioner-plaintiff has not been established, the Court has no jurisdiction to allow the application overriding the express provision in the Code of Civil Procedure. This point has been decided in a catena of decisions, e.g., K. Suryaprakasa Rao vs. V. Satyanarayana; Futolite Colour Labs. vs. Aver Foto Print System; Managing Director, APSRTC vs. L. Leelavathi; Malti Devi vs. Hon’ble Board of Revenue, U.P., etc.
7. Application made under Order 9 Rule 9, CPC for restoration of suit dismissed for default on the ground of plaintiff appearing but not proceeding with suit is maintainable as his mere presence cannot be considered as appearance under Explanation added to Rule 2 of Order 17 CPC by A.P. State Amendment.(Para 7). – Vemana Venkataratnam v. Koppanna Chakradharudu and others. – 2010 (4) ALT 263.
8. Application filed under Order 9 Rule 9, CPC for restoration of a miscellaneous application does not fall within the scope of Article 122 which prescribes period of limitation of 30 days from date of dismissal. No specific provision under the Act dealing with applications for restoration of miscellaneous applications. All such applications therefore governed by residuary Article 137 under which period of limitation is three years from the date when the right to apply accrues – L. Venkata Krishna Reddy (Died) Per L.Rs. v. M. Anjinappa (Died) and others.- 2010 (3) ALT 817
9. Second revision petition is maintainable if earlier revision petition was dismissed for default due to absence of both parties.(2) Applicability of CPC .Provisions of CPC are applicable to proceedings under A.P. (TA) Tenancy and Agricultural Lands Act, 1950. – Mothukuri Ranga Rao and another v. Royyala Laxminarayana and others – 2008 (4) ALT 96.
Inherent power of Court:-
Application dismissed for non-compliance of order of substituted service can be restored by extending time for such compliance under Section 151, CPC – Period of Limitation under Limitation Act is not applicable to such cases. – K. Sudhakar Reddy v. Ind Bank Housing Limited and others – 2008 (1) ALT 151.
Abatment of Suit:-
Under Article 123 of the Limitation Act,1963, to set aside the ex- parte decree, the application has to be filed within 30 days from the date of decree or when summons or notice were not duly served, when the applicant had the knowledge of the decree. Abatement is a process which suomotu sets in motion the moment the sole defendant expires and the wheel comes full circle when 90 days since the death of the sole deceased defendant expires. Thus, the process of abatement once started can only be short circuited by filing an application for bringing LRs of deceased defendant on record or filing an application for setting aside the abatement within 60 days of abatement.
If the defendant dies after filing of suit and after service of summons then an exparte decree against defendant without brining LRs of deceased defendant on record or without applying for and obtaining exemption under Order 22 Rule 4 (4) CPC, the decree is not executable against the LRs of the deceased defendant. A decree obtained against a dead person without complying with Order 22 Rule 4 (4) CPC is a nullity. See. Elisa and others Vs. A. Doss AIR 1992 Madras 159. It was held in P.M.M Pillayathiri Amma Vs. Lakshmi Amma and others AIR 1967 Kerala 135 (V 54 C 55), the provisions of Order 22 Rule 9 are mandatory and the suit abates if the plaintiff or defendant is not alive at the time of passing of decree.
Rule 4 of Order 22 CPC deals with procedure in case of death of the sole defendant. Under the rule the suit shall not abate if the right to sue survives and an application is made to bring on record the legal representatives of the deceased defendant as a party to the suit. Order 22 Rule 3 states that where within the time limited by law no application is made under sub rule (1), the suit shall abate as against the deceased defendant. A suit to set aside an ex parte decree is not maintainable. But, In Bhanu Kumar Jain Vs. Archana Kumar, AIR 2005SC 626, it was observed that if an ex parte decree is alleged to have been obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside such decree. It is a settled law that fraud vitiates the most solemn transactions. In such suitş the onus is on the part who alleges that the ex parte decree passed against him was fraudulent.
Civil Litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed. The ruling of the Apex Court in Rama Rameshwari’s caseis a pointer to the avoidance of delay.
- The Trial Courts should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Code. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the Court in arriving at truth of the matter and doing substantial justice.
- Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants.
- No one should be allowed to abuse the process of the court.
- At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the Courts should strictly adhere to the said dates and the said time table as far as possible.
Judicial institutions in most of the developing countries in the world are currently confronted with serious crisis, mainly on account of delay in the disposal of cases and we are no exception. I hope that this paper will be helpful to the judicial officers for the speedy disposal of interlocutory applications pending in main suits.