LexJASWANT SINGH & ORS versus PARK.ASH KAUR & ANR
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[2017] 8 S.C.R. 731 JASWANT SINGH & ORS v. PARK.ASH KAUR & ANR (Civil Appeal No. 9409of2017) JULY 21, 2017 [A.K. SIKRI AND ASHOK BHUSHAN, JJ.) A B Code of Civil Procedure, 1908 - 01: IX r. 9 and s.141 -Appeal against order dismissing application for restoration of application u/Or. IX, r. I 3 - Maintainability of - Respondent-Plaintiff filed suit C against the defendant, predecessor-in-interest of the appellants - The suit proceeded ex parte against the defendant and was decreed - Defendant filed application u/Or. IX. r.I 3 to set aside the ex parte decree, howeve1; the same was dismissed in default - Thereafter, defendant died - Legal heirs of the defendant i.e. appellants filed application praying for restoration of application filed u/Or. IX D r. I 3 - Application dismissed by trial Court - Appellate Court i.e. District Judge allowed the appeal u/Or. XLJIJ, r. I rlw. s. I 04 and restored the application u/Or. IX, r. I 3 - High Court, however, proceeded to examine the question of maintainability of appeal and held that appeal filed by the appellant before the District Judge E was not maintainable - Held: The application.filed by the appellants for restoration was registered in miscellaneous proceedings and as per s.I4I, provisions of Or. IX were applicable for the same 'application - When Or. IX is made applicable to proceedings in the nature of application seeking recall of the order dismissing application u/Or. IX r. I 3, the order passed by the civil court rejecting such application is clearly referable to Or. IX r.9 and an order which is clearly referable to Or. IX, r.9 is also appealab/e by virtue of Or. XLJIJ, r. I (c) - Hence, appeal against the order of the trial Court was clearly maintainable u!Or. XLJJJ, 1: 1 (c) - High Court erred in holding that such appeal was not maintainable. F G Delay/Laches - Condonation of delay - Application filed by appellants for restoration of application u/Or. IX r.13 dismissed by the trial Court - Appellate Court i.e. District Court allowed the appeal - However, High Court held that restoration application was not maintainable and also observed that application was bmred H 731 732 SUPREME COURT REPORTS [2017] 8 S.C.R. A by time - Held: The appellants in their application itself had already given sufficient explanation for filing the delayed application - They were not aware of the application u!Or. IX, r.13 flied by their predecessor-in-interest - Application flied by the predecessor-in-interest was called on 19.10.2001, which was B dismissed in default and he died on 20.11.2001 - The predecessor- in-interest had fallen seriously ill and was busy in treatment, hence no one could appear and after he died the application was filed - He died within a span of one month from dismissal of suit - Appellate Court rightly reversed the finding of the trial Court having found sufficient cause for restoration, it is just and C equitable to conclude that there was sufficient cause for condonation of delay - Limitation Act, 1963- s.5. Allowing the appeal, the Court HELD: 1.1 The application filed by appellant dated 21.08.2002 for restoration of the application under Order IX Rule D 13 C.P.C., which was dismissed in default, is not expressly covered by the provisions of Order IX C.P.C •• The application dated 21.08.2002 was miscellaneous proceeding on which Civil Miscellaneous Case was registered. What are the provisions and procedure for miscellaneous proceeding have to be looked into E for deciding the Issue. Section 141 of C.P.C. is relevant in this context. Section 141 C.P.C. deals with miscellaneous proceeding. An Explanation has been inserted under Section 141 by Act 104 of 1976. As per Section 141, the procedure provided in Civil Procedure Code In regard to suit shall be followed, as far as, it can be made applicable in all proceedings in any Court of civil F jurisdiction. By insertion of explanation, it has now been expressly provided that expression "proceedings" includes proceedings under Order IX C.P.C. [Paras 26, 271 (741-G-H; 742-A-B, DI 2 When Section 141 expressly refers to proceedings under Order IX, as miscellaneous proceedings and appeals from such G orden are expressly provided by Order XLllI Rule l(c) & (d), it Is clear that right of appeal has been given, from the orders arising out of the miscellaneous proceeding. [Para 28) 1742-El H 3. It Is relevant to note that expression "proceedings
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