Ali Akbar Vs. Farijuddin and another, 53 DLR (2001) 284

Case No: Civil Revision No. 6285 of 1991

Judge: AK Badrul Huq,

Court: Appellate Division ,,

Advocate: Qamrunnessa,,

Citation: 53 DLR (2001) 284

Case Year: 2001

Appellant: Ali Akbar

Respondent: Farijuddin and another

Subject: Procedural Law,

Delivery Date: 2000-11-16

 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
AK Badrul Huq J
 
Ali Akbar
…………………Petitioner
Vs.
Farijuddin and another
………………...Opposite Parties
 
Judgment
November 16, 2000
 
Code of Civil Procedure (V of 1908)
Order IX rules 4 & 13
The provisions contained in Order 9, rule 4 of the code can be availed of only by plaintiff and definitely not by defendant. …. (19)
 
Lawyers Involved:
Qamrunnessa, Advocate—For the Petitioner.
Not represented— the Opposite Parties.
 
Civil Revision No. 6285 of 1991 (Dhaka).
Civil Revision No. 189 of 1987 (Comilla).
 
JUDGMENT
 
AK Badrul Huq J.
 
The fate of this Civil Revision Petition hinges on answer to the following core question, whether a Miscellaneous Case under Order 9, rule 13 of the Code of Civil Procedure which was directed for restoration of a suit on setting aside an ex parte decree, dismissed for default can be restored to its file and number on the strength of a Miscellaneous Case under Order 9, rule 4 of the Code of Civil Procedure in the face of efficacious remedy by way of appeal provided in the Code itself.
 
2. Propriety of an order dated 24-5-1987 recorded by learned Munsif (now Assistant Judge), Kachua, Chandpur in Miscellaneous Case No.13 of 1987 under Order 9, rule 4 of the Code of Civil Procedure restoring Miscellaneous Case No.4 (A) of 1986 laid under Order 9, rule 13 of the Code to its file and number on setting aside the order of dismissal for default dated 24-2-1987 is under challenge by petitioners in invoking this Court’s Civil Revisional Jurisdiction on laying a petition under section 115 of the Code of Civil Procedure.
 
3. Facts essential and requisite for the purpose of answering to the question posed may succinctly be stated and noticed.
 
4. Petitioner of this Civil Revision Petition as plaintiff land a suit being Title Suit No.72 of 1985 in the Court of Munsif (now Assistant Judge), Kachua, Chandpur for declaration that solenama filed by plaintiff-petitioner on 14-8-1985 in Miscellaneous Case No. 49 of 1984 and Title Suit No.87 of 1983 of the Court of Munsif (now Assistant Judge), Kachua, Chandpur by which Title Suit stood dismissed on allowing Miscellaneous Case is void and not binding upon plaintiff taking ground that solenama was executed by plaintiff-petitioner under threat and coercion by present defendants-opposite parties. Said Title Suit No.72 of 1985 was decreed ex parte on 14-1-1986 against which defendants-opposite parties filed a Miscellaneous Case being No. 4(a) of 1986 under provision of Order 9, rule 13 of the Code of Civil Procedure in the Court of Munsif (now Assistant Judge), Kachua, Chandpur praying for restoration of Title Suit No.72 of 1985 to its original file and number raising contention that summons of the said suit was not served upon them and they had no knowledge of the suit. Miscellaneous Case No.4 (A) of 1986 was dismissed for default on 24-2-1987 in the absence of defendant-opposite parties.
 
5. Defendants-opposite parties, subsequently, on 9-3-1987 presented an application under section 151 of the Code of Civil Procedure for restoration of Miscellaneous Case No.4 (A) of 1986 to this file and number. Learned Munsif (now Assistant Judge) by his order dated 9-3-1987 rejected said application laid under section 151 of the Code of Civil Procedure.
 
6. Thereafter, on 31-3-1987 defendants-opposite parties laid a Miscellaneous Case being No.13 of 1987 under Order 9, rule 4 of the Code of Civil Procedure for restoration of Miscellaneous Case No.4 (A) of 1986 raising contentions that they were not aware of the date and, as such, remained absent, and subsequently on 10-3-1987 they became aware of the said dismissal matter.
 
7. Learned Munsif (now Assistant Judge) by the order under challenge in Revision dated 24-5-1987 allowed Miscellaneous Case No. 13 of 1987 and restored Miscellaneous Case No.4 (A) of 1986 to its file and number on setting aside the order of dismissal dated 24-2-1987 recorded in Miscellaneous Case No. 4(A) of 1986.
 
8. Feeling dissatisfied plaintiff petitioner approached this Court in this Civil Revision Petition and obtained this Rule.
 
9. The basic grounds pressed into service in Civil Revision Petition are hereunder:
(i) Order dated 24-2-1987 passed in Miscellaneous Case No. 4(A) of 1986 under Order 9, rule 13 of the Code of Civil Procedure being an appealable order under Order 43 rule 1(d) of the Code the court below committed an error of law in allowing Miscellaneous Case No.13 of 1987 under Order 9, rule 4 of the Code.
(ii) The case being filed out of time by 5 days and there being no prayer for condonation of delay and the delay having not been condoned, court below committed an error in allowing the Miscellaneous Case.
 
10. Ms. Qamrunnessa learned Advocate appeared for plaintiff petitioner. None represented opposite parties though notices upon them were duly served.
 
11. In approaching the question posed relevant provisions of law contained in Order 9, rule 4, Order 9, rule 13, Order 43 rule 1(d) of the Code of Civil Procedure, and, also, Article 163 of the Limitation Act may profitably be noticed.
 
12. Order 9, rule 4 enshrines that where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit or he may apply for an order to set the dismissal aside, and, if he satisfies the Court that there was sufficient cause for his not paying the court-fee and postal charge (if any) required within the time fixed before issue of summons, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.
 
13. From a plain reading of the above provisions of law it reveals that the provision of law can be availed of only by a plaintiff in a suit if his suit stands dismissed only under rule 2 or rule 3 or for his non-appearance. Defendant cannot take resort to this provision of law.
 
14. Order 9, rule 13, of the Code postulates that in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit.
 
15. Provisions of section 5 of the Limitation Act has been made applicable to applications under rule 13(1) of Order 9 of the Code.
 
16. Rule 1(d) of Order 43 of the Code enjoins that an appeal shall lie from an order under rule 13 of Order 9 rejecting an application, for an order to set aside a decree passed ex parte. The word rejection occurring in rule 1(d) of Order 43 means the same as dismissal, striking out, etc and appeal will lie whether the word is couched as “dismissal”, or “rejection”.
 
17. Article 163 of the Limitation Act provides a period of 30 days for presenting an application for an order to set aside dismissal for default of appearance on the part of plaintiff from the date of dismissal of suit.
 
18. Title Suit No. 72 of 1985 was decreed ex parte on 14-1-1986 Miscellaneous Case No. 4(A) of 1986 under Order 9; rule 13 of the Code of Civil Procedure had been filed by defendants opposite parties on 2-2-1986. The said Miscellaneous Case was dismissed for default on 24-2-1987. Miscellaneous Case was No.13 of 1987 under Order 9, rule 4 of The Code for setting aside the order of dismissal recorded in Miscellaneous Case No.4 (A) of 1986 was laid on 31-3-1987 which was delayed by five days in view of the law of limitation envisaged in Article 163 of the Limitation Act.
 
19. The order dated 24-2-1987 recorded in Miscellaneous Case No.4 (A) of 1986 dismissing the case for default is squarely an appealable order under Order 43, rule 1(d) of the Code. Law is well settled that in the event of any remedy available in the Code itself no other remedy can be availed of. Even the inherent power under section 151 of the Code cannot be, also, invoked where the result would be nullification of Specific Procedure prescribed by the Code. Miscellaneous Case No.13 of 1987 under Order 9, rule 4 of the Code of Civil Procedure for restoration of Miscellaneous Case No.4 (a) of 1986 was wholly misconceived and untenable. Moreover, the provisions contained in Order 9, rule 4 of the Code can be availed of only by plaintiff and definitely not by defendant.
 
20. Turning now to the propriety of the Order under challenge in this Revision it appears that learned Assistant Judge without assigning any ground whatsoever allowed Miscellaneous Case only on the basis of petition under Order 9, rule 4 of the Code. No witness had been examined in support of case made out by defendant-opposite parties. The order under challenge, thus, suffers from patent illegality, perversity and a flagrant error of law and by the error failure of justice has been occasioned plaintiff-petitioner.
 
21. Before parting I like to record an observation that the course adopted by defendants-opposite parties in getting his case adjudicated in the manner they liked is highly impermissible. Miscellaneous Case No.13 of 1987 under Order 9, rule 4 was based upon misconception of law. No litigant public can be allowed to get his affairs settled in the manner he wishes. Every access to justice must not be misused as a licence to file a misconceived and frivolous petition and court is required to throw in limini misconceived and fraudulent and frivolous petitions.
 
22. Resultantly, this Rule arising out of Civil Revision Petition got merit and the same, thus, succeeds. Rule is made absolute. The order under challenge dated 24-5-1987 recorded in Miscellaneous Case No.13 of 1987 under Order 9, rule 4 of the Code of Civil Procedure stands quashed. Miscellaneous Case No. 13 of 1987 is rejected.
 
23. Order of stay granted by this Court at the time of issuance of the Rule and, thereafter, extended from time to time and lastly, extended till disposal of the Rule stand vacated.
 
No costs.
 
Ed.