Order 43 Rule 1(c) CPC | Appeal Maintainable Against Rejection Of Delay Condonation In Plea For Restoration Of Suit: Gujarat High Court
The Gujarat High Court has held that an appeal under Order 43 Rule 1(c) CPC is maintainable against an order rejecting condonation of delay in filing an application for restoring a suit which was dismissed for default, holding that such rejection effectively amounts to dismissal of the restoration application itself.The question involved petition was whether a Civil Miscellaneous Appeal...
The Gujarat High Court has held that an appeal under Order 43 Rule 1(c) CPC is maintainable against an order rejecting condonation of delay in filing an application for restoring a suit which was dismissed for default, holding that such rejection effectively amounts to dismissal of the restoration application itself.
The question involved petition was whether a Civil Miscellaneous Appeal is maintainable in cases where an application for condonation of delay for setting aside the dismissal of the suit is rejected.
Justice Devan M. Desai observed:
“In my opinion, considering the specific provisions of Order XLIII Rule 1(c), the order under challenge before the learned District Court was though an order under Section 5 of the Limitation Act but virtually by rejection of the application, the application under Order IX Rule 9 is dismissed. When an order is passed rejecting an application under Order IX Rule 9 of the Code, the remedy is an appeal before the learned District Court… any order rejecting an application under Section 5 of the Limitation Act would certainly mean that the Court has rejected the application under Rule 9 of Order IX of Code. There is no other remedy available under the Civil Procedure Code when the application under Order IX of Rule 9 is rejected except an appeal.”
For context, Order 9 Rule 9 CPC prevents a plaintiff from filing a fresh lawsuit on the same cause of action if their previous suit was dismissed due to default/for not appearing in the matter under Rule 8.
The Court was hearing a petition filed by Rathva Meenaben Pahadsinh and another challenging the order of the Additional District Judge, Chhota Udepur, which had dismissed their Appeal on the ground that it was not maintainable.
The petitioners' suit had been dismissed for default under Order 9 Rule 8 CPC in 2017 due to their absence. Upon learning about the dismissal in 2019, they filed an application under Order 9 Rule 9 CPC (decree against plaintiff by default bars fresh suit) along with an application for condonation of delay under Section 5 Limitation Act.
The Trial Court rejected the delay condonation plea, thereby refusing restoration of the suit. Their subsequent Appeal was also dismissed by the District Court on the ground of maintainability.
Appearing for the petitioners, Advocate A.V. Nair argued that under Order 43 Rule 1(c) CPC, an appeal lies against rejection of an application under Order 9 Rule 9 CPC, and since rejection of condonation of delay resulted in dismissal of the restoration application itself, the Appeal was clearly maintainable. He relied on the Supreme Court's decisions in Jaswant Singh v Parkash Kaur and Shyam Sundar Sarma v Pannalal Jaiswal.
Opposing the petition, Advocate Dhruv K. Dave for the respondents supported the impugned order and contended that the appeal was not maintainable.
Accepting the petitioners' case, the High Court held that rejection of condonation of delay cannot be viewed in isolation, since it results in dismissal of the substantive restoration application. The Court observed that under Order 43 Rule 1(c) CPC, any order rejecting an application for restoration of a suit is appealable.
The Court further relied on Supreme Court precedents which clarified that rejection of applications under Order IX CPC, including restoration pleas dismissed on limitation grounds, would still be appealable orders.
Holding that the District Court had committed a jurisdictional error in dismissing the Civil Miscellaneous Appeal as non-maintainable, the High Court quashed the impugned order and directed the District Court to decide the appeal on merits in accordance with law.
Accordingly, the petition was allowed.
Case Title: Rathva Meenaben Pahadsinh v Solanki Karansinh Gemalsinh & Ors.
Appearance: Mr. AV Nair for Petitioners and Mr. Dhruv K Dave for the Respondents
Case Number: R/SPECIAL CIVIL APPLICATION NO. 19963 of 2022