* THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.254 OF 2010 AND CIVIL REVISION PETITION No.494 OF 2010 %Date: 09.04.2010 In CIVIL REVISION PETITION No.254 OF 2010: #1. L. Venkata Krishna Reddy (Died) Per L.Rs. 2. Smt. L. Swaraswathi @ Saraswathamma 3. Smt. P. Sreelatha .. Petitioners Vs. $ 1. M. Anjinappa (Died) and others. … Respondents ! Counsel for the petitioners: Sri S.V.Sundara Rajan ^ Counsel for the respondents 1 to 3: None ^ Counsel for the respondent 4 : Sri V.L.G.K. Murthy In CIVIL REVISION PETITION No.494 OF 2010: # 1. Smt. L. Uma Maheswari … Petitioner And $ 1. M. Anjinappa (Died) and others. … Respondents ! Counsel for the petitioner: Sri R.V.Nagabhushana Rao ^ Counsel for the respondents 1, 3, 5 to 9: None ^ Counsel for the respondents2, 4, 10 to 28 : Sri V.L.G.K. Murthy <GIST: >HEAD NOTE: ?CASES REFERRED: 1. AIR 1988 Calcutta 358 2. AIR 1958 Bombay 10 3. J.T. 1997 (9) SC 642 = (1998) 2 SCC 206 4. 2007 (4) ALT 14 5. 2009 (1) ALD (NOC 17) THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.254 OF 2010 AND CIVIL REVISION PETITION No.494 OF 2010 DATED: 09.04.2010 In CIVIL REVISION PETITION No.254 OF 2010: Between: 1. L. Venkata Krishna Reddy (Died) Per L.Rs. 2. Smt. L. Swaraswathi @ Saraswathamma 3. Smt. P. Sreelatha … Petitioners And 1. M. Anjinappa (Died) and others. … Respondents AND In CIVIL REVISION PETITION No.494 OF 2010: Between: 1. Smt. L. Uma Maheswari … Petitioner And 1. M. Anjinappa (Died) and others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.254 OF 2010 AND CIVIL REVISION PETITION No.494 OF 2010 COMMON ORDER : These two Revision Petitions which are directed against the order dated 19.10.2009 in I.A.No.364 of 2008 in I.A.No.188 of 1996 in O.S.No.33 of 1985 on the file of the Court of the Senior Civil Judge, Hindupur are heard together and decided by this common order: O.S.No.33 of 1985 filed by the respondents 1 to 5 herein for specific performance of the agreement of sale dated 19.04.1980 was decreed ex parte by judgment dated 11.8.1992. The petitioners in these two Revision petitions filed I.A.No.188 of 1996 under Order 9 Rule 13 of C.P.C. for setting aside the ex parte decree dated 11.08.1992. The said application was dismissed for default on 7.6.2006. Thereafter, the Revision petitioners filed I.A.No.364 of 2008 under Order 9 Rule 9 of C.P.C. to set aside the dismissal order dated 7.6.2006 and to restore I.A.No.188 of 1996. After hearing both the parties, I.A.No.364 of 2008 was dismissed by the Court below by order dated 19.10.2009. The said order is under challenge in these two Revision Petitions. I have heard Sri S.V. Sundararajan, the learned Counsel appearing for the petitioners in C.R.P.No.254 of 2010, Sri R. Prasad, the learned counsel appearing for the petitioner in C.R.P.No.494 of 2010 as well as Sri V.L.N.G.K. Murthy, the learned counsel appearing for the respondents and perused the material available on record. Before adverting to the contentions raised by the learned counsel for the parties, it is necessary to notice the following undisputed facts borne out of the record. The respondents 1 to 5 herein – M. Anjinappa and four others filed O.S.No.30 of 1983 on the file of the Court of the Sub-Judge, Penukonda, against one L. Venkata Krishna Reddy for specific performance of the agreement of sale dated 19.04.1980 executed by him in respect of the suit schedule property. The said suit was renumbered as O.S.No.33 of 1985 on transfer to the Court of Additional District Judge, Hindupur. The suit was contested by the defendant L. Venkata Krishna Reddy by filing a written statement dated 26.06.1984. Subsequently, the defendant’s son by name L. Ramana Gopala Reddy was impleaded as defendant No.2. While the suit was coming up for trial, the advocate for the defendants reported no instructions and they were set ex parte. Consequently, by judgment dated 11.08.1992, the suit was decreed ex parte directing the 1st defendant to execute a Registered Sale Deed as per the terms of the Agreement of Sale, dated 19.04.1980. On 10.09.1992 the 1st defendant – L. Venkata Krishna Reddy – filed an application under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree dated 11.8.1992. Even before the said application (I.A.No.363 of 1994) was taken up for enquiry, L. Venkata Krishna Reddy died. By that time, the Court of the Senior Civil Judge was constituted at Hindupur and I.A.No.363 of 1994 was renumbered as I.A.No.188 of 1996. While so, the wife of L. Venkata Krishna Reddy, by name L. Saraswathamma and his daughter P. Srilatha filed I.A.No.189 of 1996 in the Court of the Senior Civil Judge, Hindupur, to bring them on record as legal representatives of the deceased petitioner – L. Venkata Krishna Reddy - in I.A.No.188 of 1996 and the same was ordered on 1.11.2003. By virtue of the said order, apart from adding L. Saraswathamma and P. Srilatha as petitioners 2 & 3, four sons of the deceased L. Venkata Krishna Reddy, including the 2nd defendant - L. Ramana Gopal Reddy, were added as respondents 6 to 9 to I.A.No.188 of 1996 as it was pleaded by L. Saraswathamma that they were not evincing any interest to pursue the proceedings. In the meanwhile, the 1st plaintiff M. Anjinappa died and his legal representatives were added as respondents 10 to 16 to I.A.No.188 of 1996. Similarly, on the death of the 5th plaintiff M. Govinda Reddy, his legal representatives were added as respondents 17 to 20, and on the death of the 3rd plaintiff – M. Thimma Reddy – his legal representatives were added as respondents 21 to 28. That apart, the respondent No. 7 (son of the deceased defendant – L. Venkata Krishna Reddy) also died and his legal representatives – L. Nageswara Reddy and L. Uma Maheswari - came on record as petitioners 4 and 5 in I.A.No.188 of 1996. Separate counters were filed on behalf of the respondents 1 to 5 and the respondents 21 to 28, contesting I.A.No.188 of 1996. However, when the said petition came up for hearing on 7.6.2006, the advocate for the petitioners reported no instructions and the petitioners were also called absent. Accordingly on 7.6.2006, I.A.No.188 of 1996 was dismissed. Two years thereafter, the petitioners in I.A.No.188 of 1996 filed I.A.No.364 of 2008 under Order 9 Rule 9 of C.P.C. to set aside the order dated 7.6.2006 and to restore I.A.No.188 of 1996. The 2nd petitioner Smt. L. Saraswathamma filed an affidavit in support of I.A.No.364 of 2008 stating that due to her old age there was a communication gap with her advocate and that on 13.05.2008 when she approached her advocate at Hindupur and enquired about the stage of I.A.No.188 of 1996, it was revealed that the said application was dismissed for default as the advocate had reported no instructions on 7.6.2006. It was alleged that her advocate reported no instructions without notice to her and till 13.05.2008 she was under an impression that her advocate was prosecuting the case and that I.A.No.188 of 1996 was pending. It was further pleaded that since they came to know about the dismissal of I.A.No.188 of 1996 only on 13.05.2008, the application under Order 9 Rule 9 of C.P.C. was filed within 30 days from the date of knowledge. The respondents filed a counter contending that the petition was barred by limitation. The plea that there was communication gap between the 2nd petitioner and her advocate and that she came to know about the dismissal of I.A.No.188 of 1996 only on 13.05.2008 was denied and it was stated that the petitioners were in contact with their advocate constantly and they were closely following the proceedings in the Court. It was also specifically pleaded that the same advocate was appearing in E.P.No.50 of 1996 and was contesting the execution proceedings even after 7.6.2006 till it was allowed on 19.01.2007 directing execution of the sale deed. It was also alleged in the counter that the advocate reported no instructions in I.A.No.188 of 1996 with full knowledge of the petitioners and at the instance of the petitioners and that they were fully aware of the dismissal of I.A.No.188 of 1996 on the day of dismissal of the application itself. It was also stated that challenging the order dated 19.01.2007 in E.P.No.50 of 1996 directing the petitioners to execute a sale deed in terms of the decree in O.S.No.33 of 1985, the petitioners filed C.R.P.No.607 of 2007 and the same was allowed by order dated 1.11.2007 remanding the matter to the trial Court for fresh consideration. It was alleged that I.A.No.364 of 2008 was filed only thereafter seeking restoration of I.A.No.188 of 1996 apprehending that their objections raised in E.P.No.50 of 2006 may not be accepted. It was contended that the fact that the petitioners filed C.R.P.No.607 of 2007 itself showed that the petitioners had knowledge of the dismissal of I.A.No.188 of 1996. It was contended before the Court below on behalf of the petitioners that it was the duty of the Court to issue notice to the party and I.A.No.188 of 1996 could not have been dismissed merely on the ground that the advocate for the petitioners reported no instructions. The said contention was rejected by the Court below relying upon Order 17 Rule 2 of C.P.C. which provides for disposal of the suit where the parties or any of them failed to appear on any date to which the hearing of the suit was adjourned. Having taken note of the fact that the advocate by name, Sri K.S. Rajasekhar, who reported no instructions in I.A.No.188 of 1996 had also appeared for the petitioners in E.P.No.50 of 1996, the Court below disbelieved the plea that the petitioners came to know about the dismissal of I.A.No.188 of 1996 only on 13.05.2008 and accordingly held that I.A.No.364 of 2008 under Order 9 Rule 9 of C.P.C. which was filed beyond the period of 30 days from the date of dismissal of I.A.No.188 of 1996 was barred by limitation. Thus I.A.No.364 of 2008 was dismissed by order dated 19.10.2009. Challenging the said order, dated 19.10.2009, Smt. L. Saraswathamma and P. Srilatha (petitioners 2 and 3 in I.A.No.364 of 2008) filed C.R.P.No.254 of 2010, whereas Smt. L. Uma Maheswari (petitioner No.4 in I.A.No.364 of 2008) filed C.R.P.No.494 of 2010 under Section 115 of C.P.C. Sri S.V. Sundara Rajan, the learned counsel appearing for the petitioners in C.R.P.No.254 of 2010, contended that the Court below had grossly erred in holding that I.A.No.364 of 2008 was barred by limitation. While placing reliance upon the decision of the Calcutta High Court in MST. NURNAHAR BEWA AND ANOTHER v. RABINDRA NATH DEV AND OTHERS[1] and P.N. FILMS LTD. v. OVERSEAS FILMS CORPN LTD.[2], the learned Counsel submitted that Article 123 of the Limitation Act was not applicable to an application filed under Order 9 Rule 9 of C.P.C. for restoration of a miscellaneous application but the same was governed by Article 137 as per which the period of limitation was 3 years. Thus, according to the learned counsel, I.A.No.364 of 2008 filed in the year 2008 under Order 9 Rule 9 of C.P.C. for setting aside the dismissal order dated 7.6.2006 was well within the limitation. The learned counsel for the petitioners further contended that as there was no notice to the petitioners before dismissing I.A.No.188 of 1996 on the ground that the advocate for the petitioners had reported no instructions, the Court below ought to have set aside the order of dismissal and allowed I.A.No.364 of 2008 on that ground alone. In support of the said submission, the learned counsel relied upon the decisions in MALKIAT SINGH AND ANOTHER v. JOGINDER SINGH AND OTHERS[3], THANNERU VENKATAIAH (DIED) v. VADLAMUDI KASAIAH[4] and BODA VENKATARAMANAMMA AND OTHERS v. I. SATYAVATHAMMA AND ANOTHER[5]. Sri R. Prasad, learned counsel appearing for the petitioner in C.R.P.No.494 of 2010 while bringing to the notice of this Court that the advocate Sri K.S. Rajasekhar, who reported no instructions, had appeared only for the petitioners 2 and 3 in I.A.No.188 of 1996 submitted that since the petitioner No.4 had no knowledge of the proceedings in I.A.No.188 of 1996, there was no justifiable reason for dismissing the application for restoration so far as petitioner No.4 was concerned. On the other hand, the learned counsel for the respondents, Sri V.L.N.G.K. Murthy, who sought to justify the dismissal of I.A.No.364 of 2008 as barred by limitation, further contended that the application under Order 9 Rule 9 of C.P.C. itself was not maintainable by virtue of Section 141 of C.P.C. for restoration of a miscellaneous application for setting aside an ex parte decree. In the light of the rival contentions, the first question that arises for consideration is whether I.A.No.364 of 2008 filed under Order 9 Rule 9 of C.P.C. was maintainable. As per Section 141 of C.P.C. as it stood prior to the amendment by Act 104 of 1976, the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. While interpreting the said provision, it was held by the Courts that the expression “proceedings” under Section 141 of C.P.C. were of wider amplitude and they were not confined to only original proceedings. It was also held that the Rules under various Orders of C.P.C. were not absolutely procedural but they also dealt with substantive rights and therefore they were not outside the purview of Section 141. The said interpretation was reinforced by Amendment Act 104 of 1976 by inserting the Explanation to Section 141 of C.P.C. and making it clear that the expression “proceedings” includes proceedings under Order 9 of C.P.C. Section 141 as amended by Act 104 of 1976 is extracted hereunder: “141. Miscellaneous proceedings The proceedings provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. Explanation: In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceedings under Article 226 of the Constitution.” Having considered the scope and object of Section 141 of C.P.C. in detail, a Special Bench of three-judges of the High Court of Calcutta in MST. NURNAHAR BEWA’S case (1 supra) held that in view of the inclusive definition under the Explanation to Section 141 of C.P.C., whatever may be the nature of the proceedings initiated under Order 9 of C.P.C. such proceedings were to be treated as miscellaneous proceedings within the meaning of Section 141 of C.P.C. as amended and therefore the application for restoration of a miscellaneous case arising out of an application under Rule 4, 9 or 13 of Order 9 for restoration of the miscellaneous case if such miscellaneous case itself was dismissed for default was maintainable under Order 9 read with Section 141 of C.P.C. Hence, there cannot be any dispute about the maintainability of I.A.No.364 of 2008 under Order 9 Rule 9 of C.P.C. for restoration of I.A.No.188 of 1996 for setting aside the ex parte decree in the suit. So far as the next question i.e., whether I.A.No.364 of 2008 was filed within limitation is concerned, the Court below while relying upon Article 122 of Schedule-I to the Limitation Act, 1963 held that the application was barred by limitation. However, the learned counsel for the Revision petitioners would contend that Article 122 has no application and the appropriate provision is Article 137 as per which the period of limitation shall be three years. Article 122 and Article 137 of Schedule-I to the Limitation Act, 1963 may be extracted hereunder: Description of suit P e r i o d of limitation T i m e from which period begins to run 122. To restore a suit or appeal or application for review or revision dismissed 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. Thirty days The date of dismissal 137. Any other application for which no period of limitation is provided elsewhere in this Division Three years W h e n the right to apply accrues. As could be seen, Article 122 deals with restoration of (i) Suit (ii) Appeal (iii) application for Review and (iv) Revision when the same were dismissed for default. In such a case, the period of limitation is 30 days from the date of dismissal. However, 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. This issue was also considered in detail by the Special Bench of three judges of the Calcutta High Court in MST. NURNAHAR BEWA’S case (1 supra) and it was held as under: “The Statute of limitation is a disabling act and action for claiming rights flowing from various laws is barred with lapse of time as indicated in the Limitation Act. Limitation for an action in law, therefore, has to be found within the four corners of the statute. In the aforesaid circumstances, it appears to us that although the period of limitation for making an application for restoration of a suit dismissed for default under Order 9 of the Code is thirty days from the date of the order of dismissal, the application for restoration of miscellaneous case arising out of such application under Order 9, when such Misc. Case is dismissed for default, is not governed by the provisions of Article 122 of the limitation Act in view of the fact that expressly in terms of the said Article 122, the miscellaneous case arising out of an application under Order 9 is not attracted and the period of limitation in such case should be governed by Article 137.” 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. 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. However, Sri V.L.N.G.K. Murthy, the learned Counsel for the respondents vehemently contended that even if the petition was filed within limitation, unless a sufficient cause was made out by the petitioners for their non-appearance, the application under Order 9 Rule 9 of C.P.C. for restoration cannot be allowed. The learned counsel contended that having regard to the facts and circumstances of the present case, particularly the conduct of the petitioners, the Court below had rightly dismissed I.A.No.364 of 2008 and therefore the order under Revision warrants no interference. Under Order 9 Rule 9 of C.P.C. a party against whom an order of dismissal for default is passed has to satisfy the Court that there was sufficient cause for his non-appearance on the date when default occurred. Thus the existence of sufficient cause for the non- appearance of the party is a condition prrecedent. The law is well- settled that “sufficient cause” is a question of fact depending upon the circumstances of each case. What is sufficient cause has to be made out only on the basis of specific pleading supported by acceptable evidence. In the instant case, I.A.No.364 of 2008 under Order 9 Rule 9 of C.P.C. was filed by three petitioners – L. Saraswathamma, P. Srilatha and L. Uma Maheswari. The affidavit in support of the said application was sworn to by L. Saraswathamma on her behalf as well as the other petitioners. It was stated that the advocate reported no instructions in the petition without notice to her or other petitioners and that they had no knowledge about the dismissal of the application on 7.6.2006. It was also stated that she was under the impression that her advocate was looking after the matter and due to her old age she could not contact her advocate. For proper appreciation, it is necessary to extract the following paragraphs from the said affidavit : “I submit that I got filed I.A.No.188/1996 in O.S.No.33/1985 to set aside the ex parte decree dt. 11.8.1992 made in O.S.No.33/1985. The said petition in I.A.No.188/1996 in O.S.No.33/1985 is filed within the period of limitation and I was under the impression that my advocate is looking after the matter and due to my old age I could not contact my advocate. Thus there is a communication gap between me and my advocate. It is submitted that recently i.e., on 18.5.2008 I approached my advocate at Hindupur and enquired with him with regard to the stage of the petition filed by me in I.A.No.188/1996 in O.S.No.33/1985. On my enquiry it was revealed that my advocate reported no instructions on 7.6.2006 and the petition in I.A.No.188/1996 was dismissed for default. It is submitted that my advocate did not informed me that he is going to report no instructions in the above said petition and thus without notice to me or other petitioners in the petition my advocate reported no instructions. Thus the petition stands dismissed for default.” In view of the finding recorded above that I.A.No.364 of 2008 was filed within the period of limitation prescribed under Article 137 of the Limitation Act, it is not necessary to go into the question whether the petitioners had knowledge about the dismissal of I.A.No.188 of 1996. Thus the only question that requires consideration by this Court is whether the petitioners have made out “sufficient cause” for their non-appearance on 07.06.2006. As noticed above, it was pleaded in the affidavit filed in support of I.A.No.364 of 2008 that there was communication gap between the 2nd petitioner L. Saraswathamma and her advocate since she could not contact her advocate due to her old age. However, there was no explanation as to why the other petitioners namely P. Srilatha and L. Uma Maheswari were not in touch with their advocate. In the counter filed by the respondent No.4, the plea that the petitioners were not in contact with their advocate was specifically denied. The further plea of the petitioners that their advocate reported no instructions on 7.6.2006 without notice to any of the petitioners was also denied in the counter and it was asserted that for every adjournment one petitioner or other was attending the Court and closely following the proceedings in the Court. It was also contended in the counter that the advocate had reported no instructions at the instance of the petitioners and that the same advocate was appearing for the petitioners in E.P.No.50 of 1996 also. However, the petitioners did not choose to adduce any evidence, either oral or documentary, to substantiate their plea that they were not aware of the posting of I.A.No.188 of 1996 on 7.6.2006. None of the petitioners came into the witness box to depose about the reasons for their non-appearance on 7.6.2006. Even the contention that the advocate had reported no instructions without notice to the petitioners was not supported by any evidence. It is relevant to note that E.P.No.50 of 1996 filed by the decree-holders for execution of the