Order Dismissing Plea For Want Of Prosecution Not Directly Appealable; Correct Remedy Is To Seek Restoration Under CPC: MP High Court

The Madhya Pradesh High Court has reiterated that an order dismissing an application for want of prosecution is not directly appealable and that the correct remedy would be to seek restoration of the application under Order IX Rule 4 read with Section 151 of CPC. For context, Order IX Rule 4 empowers a plaintiff, whose suit has been dismissed for default, to either file a fresh suit or apply to the court to restore the suit to file. Section 151 of CPC authorises a court to make any orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The court noted that the present appeal, challenging dismissal of an application under Order IX Rule 13 of CPC by the District Court, was filed by bypassing the appropriate remedy.Since the impugned order was merely procedural and did not affect the rights of the parties under Order IX Rule 13 of CPC, the appeal was squarely barred, both on the language of the statute as well as on settled principles of law.Per the facts, Respondent no 1/Plaintiff had filed a suit seeking possession of the land wherein the appellant/defendant has filed their written submission. However, due to some unforeseen reasons, the appellant/defendant remained absent in the court, leading to an ex parte judgment and decree being passed against her. Aggrieved, she challenged the order under Order X Rule 13 of CPC, which allows a court to set aside a decree of ex parte against the defendant. But this application was also dismissed due to the absence of her counsel. Hence, she appealed to the High Court. The counsel for the appellant contended that the Trial Court wrongly exercised its discretion in rejecting the application, as it could have issued notice in the interest of justice. The trial court failed to consider the reasons shown by the appellant in proper perspective. The court noted that the impugned order was not passed on merits, but was dismissed under Order IX Rule 13 on account of the default on account of the non-presence of counsel for either side. The main issue in the case pertained to whether an appeal filed under Order XLIII Rule 1 CPC could be filed against an order dismissing an application under Order IX Rule 13. Citing the case of Babulal v Heera [C.R. No. 292/2019], the bench of Justice Himanshu Joshi observed;"On careful reading of the aforesaid pronouncement, an order dismissing an application for want of prosecution is not directly appealable before this Court. The proper remedy available to the aggrieved party is to seek restoration of the application before the same court by invoking Order IX Rule 4 CPC read with Section 151 CPC". The court, therefore, dismissed the appeal and granted liberty to the appellant to move an appropriate application before the learned Trial Court seeking restoration of the application under Order IX Rule 13 of CPC, strictly in accordance with law. Case Title: Sitarani v Dal Singh [MA-2469-2014]Citation: 2025 LiveLaw (MP) 252For Appellant: Advocate Sandeep KoshtaFor Respondent: Advocate Anuvad ShrivastavaClick here to read/download the Order

Order Dismissing Plea For Want Of Prosecution Not Directly Appealable; Correct Remedy Is To Seek Restoration Under CPC: MP High Court

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Order Dismissing Plea For Want Of Prosecution Not Directly Appealable; Correct Remedy Is To Seek Restoration Under CPC: MP High Court

Jayanti Pahwa

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