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CASE NO.: Appeal (civil)  3185 of 2006

PETITIONER: FIRDOUS OMER (D) BY LRS. & ORS

RESPONDENT: BANKIM CHANDRA DAW (D) BY LRS.& Ors.

DATE OF JUDGMENT: 28/07/2006

BENCH: S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T (ARISING OUT OF S.L.P. (C) NO.13231 OF 2003)

P.K. BALASUBRAMANYAN, J.

      Leave granted.  

1.              The original plaintiff, Sheikh Mohammad Omer,  the predecessor-in-interest of the appellants herein, filed  the suit C.S. No.145 of 1983 in the High Court of Calcutta  praying for a declaration that he was a valid and lawful  tenant in respect of the plaint schedule premises and  indicated in the plan annexed to the plaint, for a perpetual  injunction restraining the defendants, the owner and  those who were claiming under or through him from the  interfering with his possession of the premises and for  other consequential reliefs.  The case of the plaintiff was  that he had taken the suit premises on lease for being  enjoyed along with the adjacent premises belonging to him  and that on the expiry of the term of the lease which was  for 25 years, the plaintiff continued to be a tenant from  month to month and the owner and those claiming under  or through him, were not entitled to interfere with his  right as a tenant.  The defendants, the owner and those  claiming under or through him, resisted the suit by  denying the claim of the plaintiff that he was a tenant from  month to month and setting up a plea that on the expiry  of the term of the lease relied on by the plaintiff, the  plaintiff had abandoned the premises, the owner had  taken possession of it and there was no subsisting  tenancy in his favour as claimed by the plaintiff.

2.              Pending suit, the plaintiff died and his legal  representatives were brought on record as additional  plaintiffs 1(a) to 1(e).  The owner, defendant No.1 also died  and his legal representatives were also brought on record.   

3.              For about 15 long years, it seems that the suit  was not even listed.  On 21.7.1999, the suit appeared in  the scrutiny list of the Master under the Rules of the  Original Side of the Calcutta High Court.  No one appeared  on behalf of the additional plaintiffs.  The Master  adjourned the suit to another date in the same month.   On 29.7.1999, the suit again appeared before the Master  in the scrutiny list.  Again, there was no representation on  behalf of the plaintiffs.  The Master therefore directed that  the suit be posted before the trial judge in the special list  in terms of Rule 35 of Chapter X of the Original Side

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Rules.

4.              Thus, the suit appeared in the special list of the  Judge trying the cause on 30.8.1999.  In spite of repeated  calls, none appeared on behalf of the plaintiffs.  The suit  was hence dismissed for non prosecution in terms of Rule  35 of Chapter X  of the Original Side Rules.  For  convenience, the said Rule can be set down hereunder: "35. Disposal of suits for want of prosecution.  Suits and proceedings which have not appeared  in the Prospective List or in the Warning List or  Peremptory List within six months from the date  of institution, may be placed before a Judge in  Chambers, on notice to the parties or their  Advocates acting on the Original Side, to be  dismissed for default, unless good cause is  shown to the contrary, or be otherwise dealt  with as the Judge may think proper."

Thus, the suit stood dismissed for default on 30.8.1999. 5.              It is said that on 7.9.1999, the order of dismissal  was drawn up, completed and filed.  On 7.12.1999, the  plaintiffs filed an application for restoration of the suit,  after condoning the delay, if any, in making the  application.  The said application did not indicate under  what provision the same was being filed.  It was pleaded  that there was no latches on the part of the plaintiffs and  the suit happened to be dismissed for default under  unfortunate circumstances.  The delay had occurred  because the plaintiffs were not made aware of the  dismissal.  The said application was opposed by the  respondents to that application.  It was contended that the  application was not maintainable.  The application was  belated and that the trial Judge had become functus  officio since the order of dismissal had attained finality by  the same being drawn up, completed and filed on  7.9.1999 and that even otherwise, there was no ground  made out for restoration of the suit dismissed for default.   The learned trial judge took the view that in view of the  decision of the Division Bench of the High Court in M/s  Nanalal M. Varma and Co. (Gunnies) P. LTD. Vs.  Gordhandas Jerambhai & Ors. [AIR 1965 CALCUTTA  547], the suit dismissed for default under Rule 35 of  Chapter X  of the Original Side Rules could not be restored  to file once the order had been drawn up, completed and  filed.  Though the learned judge was inclined to condone  the latches on the part of the plaintiffs, he felt bound by  the decision and the practice followed in that court and  hence dismissed the application as not maintainable,  without going to the merits of the application.  The  plaintiffs have approached this Hon’ble Court  with this  Petition for Special Leave to Appeal challenging that order  of the learned Single Judge of the High Court.

6.              Before proceeding to consider the contentions  raised, one aspect requires to be noticed.  It is seen that  on 20.7.2002, when the application for restoration was  pending, petitioner No. 1(e) therein, plaintiff 1(e), S.M. Naqi,  one of the legal representatives of the deceased original  plaintiff, died.  The surviving petitioners in the application,  the other legal representatives of the original plaintiff, did  not take steps to bring on record the legal representatives  of the said petitioner S.M. Naqi.  Even in this Court, the  additional plaintiffs or the petitioners in the Petition for  Special Leave to Appeal, purported to implead that Naqi as

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Respondent No.11 as if he were alive.  It may be noted that  the order rejecting the application filed by the plaintiffs  was made by the High Court on 2.7.2003 and the petition  for special leave to appeal was filed on 17.7.2003, both  after the death of S.M. Naqi, one of the legal  representatives of the original plaintiff and petitioner No.  1(e) in the application for restoration of the suit.  In this  Court, an attempt was made by the petitioners to bring on  record the legal representatives of the S.M. Naqi as if the  death of Naqi occurred during the pendency of the petition  for special leave to appeal.  

7.              In this context, learned counsel for the  respondents raised a preliminary objection to the hearing  of the appeal on merits.  He contended that the dismissal  of the suit for default has become final as against S.M.  Naqi, one of the legal representatives of the deceased  original plaintiff, since he died pending the application for  restoration of the suit and his legal representatives were  not brought on record and in view of this, this court  cannot proceed to allow the appeal and restore the suit,  even if it were possible, since it would give rise to  inconsistent decrees in the suit, one of dismissal of the  suit against Naqi, which has become final and the other, a  restoration of the suit in favour of the other legal  representatives of the original plaintiff and the re-opening  of the suit.  Learned counsel contended that such re- opening of the suit qua the surviving plaintiffs would only  be an exercise in futility since the Court cannot pass a  decree inconsistent with the decree of dismissal, that has  become final as against Naqi.  Learned counsel relied on  the leading case in State of Punjab vs. Nathu Ram  [(1962) 2 S.C.R. 636] in support.   Learned counsel for the  plaintiffs could not give any effective answer to this  submission on behalf of the defendants.  The contention  that the other legal representatives substantially represented  the estate of the original plaintiff cannot take the appellants  far.  The question is not whether the estate of the original  plaintiff is substantially represented or not, the question is,  what is the consequence of the death of one of the legal  representatives of the original plaintiff pending the application  for restoration of the suit that stood dismissed.  The decree of  dismissal as against that legal representative has become  final.  Therefore, the court cannot pass an inconsistent decree  in the same suit by granting a decree to the other legal  representatives.  This is the position adopted by this Court in  the decision relied on by the learned counsel for the  respondents and followed subsequently by this Court in Ram  Sarup Vs. Munshi & Ors. [(1963) 3 SCR 858].  Thus, the  preliminary objection has to be upheld and it has to be held  that the relief of re-opening the suit cannot be granted to the  appellants since its dismissal has become final as against  S.M. Naqi, one of the legal representatives of the original  plaintiff.   

8.              Learned counsel for the respondents also raised  the contention that according to the decisions of the  Calcutta High Court and the practice followed in that  Court, a dismissal of the suit under Rule 35 of Chapter X   of the Original Side Rules amounts a judgment and it was  appealable under clause 15 of the Letters Patent.  Hence  an appeal therefrom would lie before the Division Bench of  the High Court.  He also raised an alternative contention  that if the application for restoration of the suit is treated  as one under Order IX Rule 9 of the Code of Civil Procedure,

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then again, an appeal would lie to a Division Bench of the  High Court under Order XLIII Rule 1(c) of Code of Civil  Procedure, 1908.  He therefore submitted that in any event, a  direct approach to this Court was not permissible.  Though,  there may be some force in these contentions as well, we do  not want to go into that question for the purpose of this case,  especially in the context of what we have said earlier.  

9.              The question that arises for consideration is  whether an application for restoration of the suit  dismissed under Rule 35 of Chapter X of the Original Side  Rules of the Calcutta High Court is maintainable and if it  is maintainable whether an application could be  entertained only if it is filed before the order dismissing  the suit is drawn up, completed and filed.  The question  whether the power under Section 5 of the Limitation Act  could not be exercised by the Court in an appropriate  case, and what is the effect of exercise of that power, also  arises.  In M/s Nanalal M. Varma and Co. (Gunnies) P.  LTD. Vs. Gordhandas Jerambhai & Ors. (supra), the  Calcutta High Court held that when a suit is dismissed  under Rule 35 of Chapter X  of the Original Side Rules,  when neither party appeared before the judge, the suit  was not called on for hearing and hence Order IX Rule 3 of  the Code did not apply.  The Division Bench also held that  when the order dismissing the suit had been drawn up,  completed and filed, the jurisdiction of the Court came to  an end and thereafter the trial judge, had no power to  reconsider the matter on the application made by the  plaintiff to set aside the order dismissing the suit.  The  Division Bench also held, relying on an earlier decision of  that Court in Udoychand vs. Khetsidas [28 Calcutta  Weekly Notes 916], that an order dismissing the suit for  want of prosecution when it is placed before the trial judge  under Rule 35 of Chapter X  of the Original Side Rules,  was a ’judgment’ within the meaning of clause 15 of the  Letters Patent and was hence appealable.  This view of the  Calcutta High Court had been followed in The  Administrative General of West Bengal Vs. Kumar  Purnendu Nath Tagore [AIR 1970 CALCUTTA 231],  wherein the Court reiterated, that a suit dismissed on the  original side for non prosecution, could not be restored  under Order 9 of the Code of Civil Procedure even if an  application for restoration is made within time.  The Court also  reiterated that when an Order dismissing the suit for non- prosecution is drawn up, signed and perfected, the  concerned court had no power to recall that order.  But  the court held that the power under Order XLVII Rule 1 of  the Code could be exercised in an appropriate case and  the suit could be restored by reviewing the dismissal.  The  same view was adopted in a subsequent decision short- noted in Sethia Mining Manufacturing Corporation Ltd.  Vs. Khas Dharamband Colliery Co. Ltd. [AIR 1979 NOC  163 (CAL.]

10.             Keeping out for the moment, the Rules of the  Original Side of the Calcutta High Court or the practice  followed in that Court, it appears to us that it was a case  where the suit was dismissed for default or for non- prosecution.  Such a dismissal, no doubt, was on the  basis that the suit was placed before a Judge trying the  cause under Rule 35 of Chapter X of the Original Side  Rules.  But the dismissal still remains a dismissal for  default of the plaintiff.  It could be a dismissal under Rule  3 of Order IX, if both sides were not present when the suit

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was called on for hearing or it could be a dismissal under  Rule 8 of Order IX, if the defendant alone appeared and  the plaintiff did not appear.  In either case, the plaintiff  could apply either under Rule 4 or under Rule 9 of Order  IX of the Code for restoration of the suit, on showing  sufficient cause for non-appearance.  The application, no  doubt, had to be made within the period prescribed  therefor under the Limitation Act, which is 30 days from  the date of dismissal, under Article 122 of the Limitation  Act, 1963.  Apparently, under the practice followed in the  Calcutta High Court on the Original Side, the order is  drawn up, completed and filed after the expiry of 30 days  from the date of the order.  Section 5 of the Limitation Act  of 1908 proprio vigore did not apply to proceedings under  Order IX of the Code of Civil Procedure and the decision of  the Calcutta High Court in M/s Nanalal M. Varma and Co.  (Gunnies) P. LTD. Vs. Gordhandas Jerambhai & Ors.   (supra) dealt with a case which arose when the 1908 Act was  in force and Section 5 of the Limitation Act was not applicable.   But after the enactment of the Limitation Act, 1963, Section 5  has application to all applications other than an application  under Order XXI of the Code of Civil Procedure subject to any  special law.  That means that time for filing an application  under Rule 4 or under Rule 9 of Order IX of the Code, or  under any other provision, unless excluded, could be extended  if sufficient cause is made out therefor.  Therefore, the fact  that on the expiry of 30 days from the date of the order, the  order was drawn up, completed and filed, would not make  the court concerned functus officio since that court in an  appropriate case can exercise its jurisdiction under Section 5  of the Limitation Act and extend the time for filing the  application under Rule 9 or Rule 4 of Order IX of the Code.   Thus, it appears to us that in view of the applicability of  Section 5 of the Limitation Act, to proceedings under Order IX  of the Code, the position adopted in M/s Nanalal M. Varma  and Co. (Gunnies) P. LTD. Vs. Gordhandas Jerambhai &  Ors. (supra) and followed subsequently by the Calcutta High  Court cannot now be adopted.  

11.             After all, a dismissal of the suit for non- prosecution or for non-appearance of the plaintiff is not a  decree as specified by the Section 2(2) of the Code itself.   Hence it is not appealable as a decree.  Of course, the  Calcutta High Court seems to have taken the view that the  order of dismissal would amount to a judgment and hence  appealable under clause 15 of the Letters Patent.  We do  not think it necessary to decide for the purpose of this  case, whether dismissal of a suit for default on the part of  the plaintiff would amount to a judgment within the  meaning of clause 15 of the Letters Patent.  We leave that  question open for the present.  

12.             We also feel that the view of the Calcutta High  Court, no doubt, backed by the procedure followed in that  court and the practice of that court that once the order of  dismissal is drawn up, completed and filed, the court loses  its power to restore the suit in an appropriate case, seems  to deprive the court of a power which every court has, of  restoring a suit so as to enable the parties to contest the  same on merits. It is even possible to argue, that the  power to dismiss a suit for default, carries with it the  power to restore that suit.  That apart, in view of the  power available under Section 5 of the Limitation Act to  extend the period of limitation for making an application  for restoration of the suit, the rigid view adopted cannot be

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said to survive.  May be, the view that the order was a  judgment and it was appealable under clause 15 of the  Letters Patent, also induced the theory of the trial judge  becoming functus officio on the order of dismissal being  drawn up, completed and filed.  After all, law of procedure  is the handmaid of justice and Rule 35 of Chapter X of the  Original Side Rules itself must be taken to confer a power  on the trial judge to restore a suit which he had dismissed  for default if sufficient cause in that behalf is shown  especially in the context of Section 5 of the Limitation Act,  1963.  The fact that the records have been consigned to  the record room cannot interfere with the power of the  court to do justice in a cause.  We are therefore inclined to  hold that the position adopted by the Calcutta High Court  that on the expiry of the 30 days from the date of  dismissal of a suit for default and on the order of  dismissal being drawn up, completed and filed, the court  becomes functus officio is not sustainable.  

13.             Coming back to the case on hand, since we find  that in case we were to allow this appeal and restore the  suit, that will result in an order inconsistent with the  order dismissing the suit as against S.M. Naqi, one of the  legal representatives of the deceased original plaintiff,  which has become final, we are unable to grant the  appellants any relief.   Thus, we decline to interfere with  the decision of the High Court.  We may also notice that  the appellants have not acted bona fide in impleading the  deceased co-plaintiff as a respondent in the Petition for  Special Leave to Appeal as if he were alive and then  seeking to bring on record his legal representatives in this  Court.  

14.             Thus, though on law, we are inclined to disagree  with the High Court that the suit could not be restored, we  decline to interfere with its decision for the reason  mentioned above.  We dismiss the appeal.  In the  circumstances, we make no order as to costs.