Whether oral application is maintainable for restoration of matter dismissed in default?

Having regard to the number of applications, which are filed, we reiterate the observations of this Court in Shamdasani's case and hold that where a matter is dismissed in default on account of slight negligence on the part of the party or Advocate in appearing before the Court, an oral application for restoration may be considered if made before the rising of the Court and it is not necessary for the party to file an application for restoration in writing.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Misc.C.A. No. 677 of 2009 in Writ Petition No. 2158 of 2009

Decided On: 06.07.2009

 Sanjay Dagadappa Kapse Vs  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.A. Bobde and F.M. Reis, JJ.

Citation: 2010 (1) ALLMR 263

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Whether proceeding for grant of maintenance U/S 125 of crpc which is dismissed in default can be restored?

A Division Bench of Punjab and Haryana High Court, in "Smt. Kamla Devi and Ors. v. Mehma Singh" MANU/PH/0646/1989, held that Magistrate can order restoration on sufficient cause being shown because proceedings under Section 125 of the Criminal Procedure Code are civil in nature. The Division Bench observed that in a way, the provisions in Chapter-IX of the Criminal Procedure Code constitute a Code of Procedure by itself. So also, in "Sk. Alauddin alias Alai Khan v. Khadiza Bibi alias Mst. Khodeja Khatun and Ors." MANU/WB/0196/1990 and "Smt. Kusum Devi v. Ram Chandra Maurya and Ors." 2004 (1) Cri153, the Calcutta and Allahabad High Courts, respectively held that order of restoration can be passed by learned Magistrate in an appropriate case when sufficient cause regarding absentia of wife is shown.

13. So far as provisions of Section 362 of the Criminal Procedure Code are concerned, it may be mentioned that the prohibition imposed is to the extent of impermissibility pertaining to alteration of judgement or final order. The recalling of dismissal order cannot be treated as alteration in the judgement or order. There is no alteration or change in the final order and, therefore, the view of the Single Bench of the Calcutta High Court in case of "Mrs. Jamana Yusuf T. Attarwala and Anr." (supra), with great respects, does not appeal to me. I am of the opinion that the provisions contained in Chapter IX of the Criminal Procedure Code are the Code in itself. Once it is found that the Criminal Court has inherent power to grant interim maintenance allowance to the wife in the exercise of powers under Section 125 of the Criminal Procedure Code, then it follows that exercise of such inherent powers can be done for setting right the wrong. The principle "ubi-jus-ibi-remedium" is attracted in such a case. Considering the nature of the proceedings and the powers which may be availed by the learned Magistrate, I am of the opinion that the impugned judgement and order of the learned Sessions Judge is improper and unsustainable.

Equivalent Citation: 2008(110)BOMLR2581, 2009CriLJ70, 2008(6)MhLj468

IN THE HIGH COURT OF BOMBAY AT AURANGABAD

Criminal Writ Petition No. 184 of 2003

Decided On: 25.07.2008

 Sau Mandakini W/o Bhausaheb Pagire
Vs.
 Bhausaheb Genu Pagire and The State of Maharashtra

Hon'ble Judges/Coram:
V.R. Kingaonkar, J.

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Whether application for restoration of petition can be filed by advocate with his signature?

 Apex Court had occasion to consider the same legal question in 

Ananta Pandu Porobo Desai and others v. Lalita Poi [(1978) 2 SCC 681(1)]

in which it is held as follows: 

"Mr. Vineet Kumar, who appears on behalf of the respondent has not been able to contest the position that the very same advocate who appeared in the suit on behalf of the plaintiff could file an application for restoration of the suit on the authority of the original vakalatnama executed by the plaintiff in his favour.

2. On the merits, it is in the interests of justice that the order dismissing the suit for default be set aside and the suit restored to file. We accordingly direct that the trial Court will restore the suit and dispose it of in accordance with law. The appellants shall pay the costs of this appeal to the respondent, which we quantify at Rs.1000, as a condition precedent to the restoration of the suit. The costs of the suit, from its institution until its disposal hereafter, shall be paid by the appellants to the respondent in any event. The appeal is disposed of accordingly." 

Therefore, the above decision of the Apex Court shows that a suit, which was dismissed for default, can be restored to file under Order IX Rule 9 of the Code on the basis of an application made by the Advocate on the strength of vakalatnama executed by the plaintiff in his favour in the interest of justice. The order of dismissing the suit for default can be set aside and the suit restored to the original file. Accordingly, the Apex Court directed the trial Court to restore the suit and dispose of it accordingly to law. Therefore, a lawyer could file a petition, on behalf of the party he represents, under Order IX Rule 9 of Code of Civil Procedure duly signed by him on behalf of the party he represents, even though the vakalatnama did not expressly authorise an Advocate to file an application for restoration. If the Court is satisfied that there was no express prohibition in doing so, it has to assume that the counsel had implied authority to file such application.

Therefore, by virtue of vakalatnama, without having any special authority, it is presumed that counsel had an implied authority to present a petition under Order IX Rule 9 of the Code, duly signed by him for the party he represents. From the facts and circumstances of the case, we find that there was sufficient cause for the petitioner's counsel for presenting the above petition in the Family Court and we cannot say that the petition, filed by a lawyer is not in accordance with law. Therefore, the order passed by the Family Court is liable to be set aside.

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN 

THURSDAY, THE 22ND DAY OF JANUARY 2015/

Mat.Appeal.No. 325 of 2014

BALAKRISHNAN Vs  GEETHA N.G.

P.D.Rajan, J. 

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Whether court should permit husband to withdraw restoration of his divorce petition if application of wife for interim maintenance is pending?

 In view of the above, my answers to the two questions framed in Para 3 above are as under :--

(i) Pending an application under Order 9, Rule 4 of the Code of Civil Procedure, 1908, for restoration of the petition filed by the husband for divorce, the wife can initiate proceedings under Section 24 of the Hindu Marriage Act. 1955, for maintenance pendente lite and expenses of proceedings;

(ii). The husband cannot be allowed to withdraw his application for restoration under Order 9, Rule 4 of the Code of Civil Procedure so as to defeat the wife's application under Section 24 of the Hindu Marriage Act.

Bombay High Court

Vinod Kimar Kejriwal vs Usha Vinod Kejriwal on 20 March, 1992

Equivalent citations: AIR 1993 Bom 160, 1992 (2) BomCR 648, I (1993) DMC 32

Bench: A Savanat

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Limitation for restoration of execution application

Order 21 Rule 105 and 106 speak of restoration of execution application. Restoration application can be filed within thirty days. If we read Section 5 of the Limitation Act, it has no application to execution proceedings. Therefore, where restoration application is not filed within 30 days in execution proceedings, there is no provision to condone the delay. The learned judge of the Lower Court, therefore, to my mind, fell in error in allowing the application. The order patently suffers from illegality and also suffers from wrong exercise of jurisdiction. The revision is, therefore, allowed.1

Bombay High Court

Dattatraya S/O Raghunath Jog vs Radhabai W/O Laxmanrao Ghate on 29 January, 2007

Equivalent citations: 2008 (1) BomCR 718, 2007 (3) MhLj 425

C.L. Pangarkar, J.

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