O.P. (C) No. 440 of 2011 - C. Varghese Mathai Vs. Varghese C. Philippukutty, (2012) 269 KLR 464

posted Sep 19, 2012, 1:05 AM by Law Kerala   [ updated Sep 19, 2012, 1:06 AM ]

(2012) 269 KLR 464

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN 

WEDNESDAY, THE 2ND DAY OF FEBRUARY 2011/13TH MAGHA 1932 

OP(C).No. 440 of 2011 (O) 

AGAINST THE ORDER IN I.A.NO.920/2010 IN OS.NO.42/2005 OF SUB COURT, THIRUVALLA 


PETITIONER/PETITIONER/PLAINTIFF: 

C.VARGHESE MATHAI, CHALAKUZHY MALIYACKAL VEETIL, POLACHIRACKAL, KAVIYOOR VILLAGE. 
BY ADVS.SRI.G.UNNIKRISHNAN SRI.S.SREEDEV 

RESPONDENTS:CR.PETITIONERS: DEFENDANTS: 

1. VARGHESE C.PHILIPPUKUTTY, CHALAKUZHY MALIACKAL, AMALLOOR MURI KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK-689101. 
2. ANNAMMA JACOB, NEDUMPLAYICKAL VEETIL, MANKUZHIPPADI, MALLAPPALLY VILLAGE-689101. 
3. SUSAN, PALLICKAL VEETTIL, OLAKETTIYAMPALAM, MAVELIKARA VILLAGE, NOW AT 27 KIMBARK, CRESSENT MARKHAM,ONTARIO L3 R8 P8 CANADA 
4. ELIZABETH KURUVILLA, ADAVIMANGALATHU MODAYIL VEETIL, MANKUZHIPPADY, MALLAPPALLY VILLAGE, NOW AT 27, KIMBARK CRESSENT MARKHAM, ONTARIO L3, R8, P8, CANADA. 
5. TRITTY MARIYAM, VATTAPPARAMBATHU, KATTOOKKARA MURI, THIRUVALLA VILLAGE, NOW AT 527 TOPTON, CRT, MISSISSAUGA ONTARIO L5 R3 M6, CANADA. 
6. GENERAL MANAGER, STATE BANK OF INDIA, MAIN BRANCH, THIRUVALLA-689101. 
7. SHEELA PAUL, PUNNAKKADU VEEDU, THYMARAVUMKARA, WEST OTHERA.P.O.,PIN-689546. 
8. ANCY PAUL, DO-DO- 9. TOM C.PAUL, -DO-DO- 

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 


APPENDIX 


PETITIONER'S EXHIBITS: 

  • EXT.P1 TRUE COPY OF THE JUDGMENT DATED 26.3.2010 IN W.P. (C) NO.15463/2009 OF HIGH COURT OF KERALA. 
  • EXT.P2 TRUE COPY OF I.A.NO.920/2010 IN O.S.NO.42/05 SUB COURT, THIRUVALLA. 
  • EXT.P3 TRUE COPY OF COUNTER AFFIDAVIT IN IO.A.NO.920/10 IN O.S.NO.42/05, SUB COURT , THIRUVALLA. 
  • EXT.P4 TRUE COPY OF ORDER DATED 20.9.10 IN I.A.NO.920/10 IN O.S.NO.42/05, SUB COURT, THIRUVALLA. 

RESPONDENTS' EXHIBITS: 

  • NIL 

//TRUE COPY// AHZ/ 

K.T.SANKARAN, J. 

------------------------------------------------------ 

O.P.(C). NO. 440 OF 2011 O 

------------------------------------------------------ 

Dated this the 2nd day of February, 2011 

Head Note:-

Limitation Act, 1963 Articles 122 & 137 - Whether for restoration of a suit which was dismissed erroneously on the basis of a compromise entered into between the parties before the Lok Adalath, Article 122 of the Limitation Act or Article 137 of the Limitation Act would apply? 
Held:- To attract Article 122, the application for restoration should be on account of the dismissal of the suit for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. In the present case, the dismissal of the suit was not on any of these grounds. Therefore, Article 122 does not apply. If so, the residuary Article 137 will apply and the period of limitation is three years.
Code of Civil Procedure, 1908 - Order IX Rule 9 - When Rule 9 of Order IX of the Code of Civil Procedure makes a specific provision for restoration of a suit, whether Section 151 of the Code of Civil Procedure can be resorted to for that purpose? 
Held:- In the present case, the dismissal of the suit was not on the ground of the absence of the plaintiff when the suit was called on for hearing. Therefore, Rule 8 of Order IX of the Code of Civil Procedure will not apply. The suit was dismissed on the basis of the alleged consensus arrived at between the parties and recorded by the Adalath. It cannot be considered as a dismissal of the suit for default as provided under Rule 8 of Order IX of the Code of Civil Procedure. If so, the application for restoration could not be made invoking Rule 9 of Order IX of the Code of Civil Procedure and Section 151 of the Code of Civil Procedure could be invoked. It was found by this Court in W.P.(C) No.15463 of 2009 that the proceedings of the Lok Adalath were illegal and improper. It was also held that there was no executable decree as there was no executable award passed by the Lok Adalath. The dismissal of the suit was also held to be improper. That means, the trial court was not justified in dismissing the suit. For restoration of such a suit, Rules 8 and 9 of Order IX of the Code of Civil Procedure would have no application. A mistake committed by the Court should be rectified by the Court. The Court was apprised of the mistake by filing an application for restoration of the suit. Rectification of a mistake could be made at any time. It was the duty of the trial court to rectify the mistake. The parties to the suit need only point out that such a mistake was committed by the Court. The Court was satisfied that the suit was liable to be restored. The source of power for the same is not certainly Rule 9 of Order IX, but it could only be Section 151 of the Code of Civil Procedure. 

JUDGMENT 


The questions of law which arise for consideration in this Original Petition are: 

(1) Whether for restoration of a suit which was dismissed erroneously on the basis of a compromise entered into between the parties before the Lok Adalath, Article 122 of the Limitation Act or Article 137 of the Limitation Act would apply; and 
(2) When Rule 9 of Order IX of the Code of Civil Procedure makes a specific provision for restoration of a suit, whether Section 151 of the Code of Civil Procedure can be resorted to for that purpose. 

2. The petitioner is the first defendant in O.S.No.42 of 2005, Sub Court, Thiruvalla, which was filed by the first respondent for partition. An appeal between the parties as A.S.No.36 of 2004 was also pending before the Sub Court, Thiruvalla. The aforesaid matters were referred to the Lok Adalath. In the Lok Adalath held on 29.3.2008 at Sub Court, Thiruvalla, the following arrangement was arrived at: 

"Parties are present, agreed to settle the matters including matters and cases pending before the Munsiff's Court, Thiruvalla after measuring the properties on or before the next Lok Adalath. The connected cases are A.S.No.35/2004, A.S.36/2004." 

On the basis of the alleged settlement, O.S.No.42 of 2005 was dismissed recording the settlement. 


3. The plaintiff challenged the proceedings of the Lok Adalath and the dismissal of the suit, in W.P.(C) No.15463 of 2009. It was contended that no measurement as contemplated in the consensus among the parties was done and contrary to the consensus, O.S.No.42 of 2005 was dismissed. It was contended by the plaintiff that no award was passed by the Lok Adalath. W.P.(C) NO.15463 of 2009 was disposed of as per the judgment dated 26.3.2010. This Court set aside the proceedings of the Adalath. It was held that the plaintiff is at liberty to approach the Court for restoration of the suit by filing proper application. It was also held that if proper application is filed, the Court shall restore the suit and dispose of the same in accordance with law.


4. The plaintiff filed I.A.No.920 of 2010 to restore the suit. The application was filed on 26.7.2010, invoking Section 151 of the Code of Civil Procedure. The petitioner/first defendant filed objections. He contended that the application for restoration of the suit is barred by limitation. No application was filed to condone the delay in filing the application for restoration of the suit. The plaintiff also did not explain the delay in the affidavit. It was also contended that the application under Section 151 of the Code of Civil Procedure was not maintainable. 


5. The court below allowed I.A.No.920 of 2010 by the order dated 20.9.2010, holding that Article 137 of the Limitation Act would apply and that the application was filed well within time. That order is under challenge in this Original Petition. 


6. Learned counsel for the petitioner submitted that the application for restoration should have been filed under Rule 9 of Order IX of the Code of Civil Procedure. The application for restoration is barred by limitation under Article 122 of the Limitation Act. It is contended that Article 137 of the Limitation Act has no application. The counsel for the petitioner also raised a contention that when an express provision is made in the Code of Civil Procedure for restoration of the suit, the plaintiff was not entitled to invoke Section 151 of the Code of Civil Procedure. 


7. As held in Ram Chand and Sons Sugar Mills Private Ltd., M/s.Barabanki (U.P.) v. Kanhayalal Bhargava and others (AIR 1966 SC 1899); Arjun Singh v. Mohindra Kumar and others (AIR 1964 SC 993), Padam Sen and another v. The State of Uttar Pradesh (AIR 1961 SC 218) and Krishnan Namboodiri v. Unnikrishnan Namboodiri (2005 (3) KLT 556), the inherent power of the Court cannot override the express provisions of the law. If there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked. 


8. In G.Christhudas and another v. Anbiah and others (AIR 2003 SC 1590), the Supreme Court held:

"The dismissal for non-prosecution of the appeal by persons interested in the matter could only be under S. 151 C.P.C. and not under any other provision of O. XLI of CPC. If an appeal is dismissed under S. 151 C.P.C., Art. 122 of the Limitation Act would have no application because when a Court makes an order under S. 151 C.P.C., it is implicit that such a Court has the power to entertain an application to set aside its order made under S. 151 C.P.C. The power exercised under S. 151 C.P.C. is ex debito justitiae. An application invoking the inherent power of the Court under S. 151 C.P.C. is not one which a party is required to make under any provisions of the C.P.C. for setting in motion the machinery of the Court. Thus, Art.122 of the Limitation Act has no application to such application." 

9. In M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd. v. Kanhayalal Bhargava and others (AIR 1966 SC 1899), the Supreme Court held: 

"The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of S.151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court." 

10. In Shipping Corporation of India Limited v. Machado Brothers and others (AIR 2004 SC 2093), the Supreme Court held: 

"If there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the Courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the Court." 

11. Rule 9 of Order IX of the Code of Civil Procedure provides for restoration of suit in a case where a suit was dismissed under Rule 8 of Order IX of the Code of Civil Procedure. Rule 8 of Order IX provides that where the defendant appears and the plaintiff does not  appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far it relates to the remainder. In the present case, the dismissal of the suit was not on the ground of the absence of the plaintiff when the suit was called on for hearing. Therefore, Rule 8 of Order IX of the Code of Civil Procedure will not apply. The suit was dismissed on the basis of the alleged consensus arrived at between the parties and recorded by the Adalath. It cannot be considered as a dismissal of the suit for default as provided under Rule 8 of Order IX of the Code of Civil Procedure. If so, the application for restoration could not be made invoking Rule 9 of Order IX of the Code of Civil Procedure and Section 151 of the Code of Civil Procedure could be invoked. 


12. It was found by this Court in W.P.(C) No.15463 of 2009 that the proceedings of the Lok Adalath were illegal and improper. It was also held that there was no executable decree as there was no executable award passed by the Lok Adalath. The dismissal of the suit was also held to be improper. That means, the trial court was not justified in dismissing the suit. For restoration of such a suit, Rules 8 and 9 of Order IX of the Code of Civil Procedure would have no application. A mistake committed by the Court should be rectified by the Court. The Court was apprised of the mistake by filing an application for restoration of the suit. Rectification of a mistake could be made at any time. It was the duty of the trial court to rectify the mistake. The parties to the suit need only point out that such a mistake was committed by the Court. The Court was satisfied that the suit was liable to be restored. The source of power for the same is not certainly Rule 9 of Order IX, but it could only be Section 151 of the Code of Civil Procedure. 


13. The next question for consideration is whether Article 122 of the Limitation Act or Article 137 of the Limitation Act will apply. Article 122 occurs in the third division of the Schedule to the Limitation Act under the heading "applications". Article 137 is also included in that division, but under Part II thereof. Articles 122 and 137 read as follows: 

"-------------------------------------------------------------------------- 
Description of application Period of limitation - Time from which period begins to run 
--------------------------------------------------------------------------- 
122. To restore a suit or appeal or application for review or revision dismi- ssed for default of appea- rance or for want of pro- secution or for failure to pay costs of service of process or to furnish security for costs.  
Thirty days  The date of dismissal.
............. .... ..... 
137. Any other application Three years for which no period of limitation is provided elsewhere in this division.  
When the right to apply accrues
--------------------------------------------------------------------------" 

To attract Article 122, the application for restoration should be on account of the dismissal of the suit for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. In the present case, the dismissal of the suit was not on any of these grounds. Therefore, Article 122 does not apply. If so, the residuary Article 137 will apply and the period of limitation is three years.


For the aforesaid reasons, I am of the view that the order passed by the court below is legal and proper. No grounds are made out for interference. The Original Petition is, accordingly, dismissed. 


(K.T.SANKARAN) Judge 

ahz/ 


Comments