Whether the court can restore suit dismissed in default in the exercise of inherent powers?

Overruling the view taken by the learned Single Judge of this Court and answering the reference by declaring that Section 151 of the Code could be invoked to seek restoration of a Suit dismissed under Sub-Rule (1) of Rule 5 of Order IX of the Code, we lodge the caveat. The caveat would be that the Plaintiff would have to show a sufficient cause. The previous conduct of the Plaintiff would also require to be considered. The inconvenience and the prejudice caused to the served defendants or the defendant who was not served as a consequence of restoration of the Suit would also have to be kept in mind.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 896 of 2007, 7552 of 2009 and Civil Application Stamp No. 901 of 2019

Decided On: 16.10.2019

Hariba Tatyaba More  Vs.  Dada Ekhatnath More and Ors.

Hon'ble Judges/Coram:

Pradeep Nandrajog, C.J., M.S. Karnik and Bharati H. Dangre, JJ.

Citation: 2019(6) MHLJ 511(FB)

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Basic principles to be followed by court while deciding application for restoration of suit

The narration of facts hereinbefore clearly reveals that the applicants were not at all diligent in conducting their case ever since May, 2005. Once the writ petition was initially dismissed for default on 19th August, 2013 and was brought back to life by an order dated 14th February, 2014, it was required to be pursued vigorously and prosecuted with due diligence and in right earnest. It has been recently held by this Court in Shankari Naskar v. Kolkata Port Trust and Others, reported in MANU/WB/1136/2015 : AIR 2016, Calcutta 91, that a lis cannot be successively brought back to life merely because a litigant has a right to file a recalling application seeking restoration of his/her lis after each dismissal. This will result in a situation where a litigant-having carriage of proceedings-is allowed to keep his/her lis pending indefinitely before a Court of law thereby causing immense prejudice to the other side who is invariable kept on tenterhooks for an indefinite period of time. It will also result in a situation simply unheard of and unacceptable in a modern justice system, i.e., a lis pending in perpetuity. Successive applications for recalling, emanating from each order of dismissal in respect of a single lis and consequently having the said lis restored to its original file and number each and every time is an unacceptable proposition, which, if indulged by a Court, will encourage a litigant to adopt such tactics only in order to keep his/her lis pending for an indefinite period of time. The closure of a lis, not prosecuted with due diligence or in right earnest by a litigant, therefore, is inevitably warranted, especially when it is evident from record that a litigant is having his/her lis restored successively, consequent upon each order of dismissal, by having the same recalled each and every time.

IN THE HIGH COURT OF CALCUTTA

CAN 7184 of 2016 and CAN 4436 of 2014 in WP No. 1955(W) of 2002

Decided On: 05.08.2016

 Biswananda Naskar and Ors.

Vs.

 State of West Bengal and Ors.

Hon'ble Judges/Coram:

Biswanath Somadder, J.

Citation:AIR 2017 Cal 53

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Whether temporary injunction will revive automatically on restoration of suit which was dismissed for default?

Temporary injunction - Revival of, on restoration of suit which was dismissed for default - Is automatic unless Court expressly or impliedly excludes its operation - Decree holder therefore prevented from executing decree during period when suit remained pending on restoration and ultimately dismissed on merits - Decree holder entitled to exclude period when suit remained pending in computing period of limitation for execution of decree. (Majority view), (S.B. Sinha, J. Dissenting).

IN THE SUPREME COURT OF INDIA

C.A. No. 2634 of 2004 (Arising out of SLP (C) No. 18699 of 2001)

Decided On: 21.04.2004

Appellants: Vareed Jacob
Vs.
Respondent: Sosamma Geevarghese and Ors.

Hon'ble Judges/Coram: V.N. Khare, C.J.I., S.B. Sinha and S.H. Kapadia, JJ.

JUDGMENT

V.N. Khare, C.J.I. and S.H. Kapadia, 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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