Suit Dismissed for Default: No Appeal Lies—Only Restoration under Order IX Rule 13 CPC; If the Restoration Petition is Dismissed for Default, it too can be Restored

Saji Koduvath, Advocate, Kottayam.

Legal Propositions in a Nutshell

• 1. Same principle as to restoration under Order IX Rule 13 CPC apply to Restoration under Order IX Rule 9 CPC.
• 2. Where a suit is dismissed for default, no appeal is provided under Order XLIII CPC. (See: Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249)
• 3. When an application under Order IX Rule 9 or Order IX Rule 13 CPC is itself dismissed for default, petition to restore it can be filed (other than an appeal under Order XLIII).
• 4. When such a (second round) restoration petition — akin to application under Order IX Rule 9 — is also dismissed for default, Appeal under Order XLIII Rule 1(c) can be filed (See: Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249).

Restoration Petition Dismissed for Default. Application to restore it is akin to O 9, r 9

The Supreme Court, in Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249, held as under:

• “57. The application filed by Ranjit Singh, predecessor-in-interest of the appellants under Order 9, Rule 13 C.P.C. was dismissed on 19.10.2001 in default. When the appellants filed application dated 21.08.2002 to recall the order dated 19.10.2001, their application in the nature of proceeding seeking recall of an order dismissing the application, the miscellaneous proceedings dated 21.08.2002 were akin to application under Order 9, Rule 9 C.P.C. seeking recall of order dismissing their application under Order 9, Rule 13 C.P.C.. … Hence, against such order the appeal was clearly maintainable under Order 43, rule 1 (c) C.P.C.”

Referring Jaswant Singh v. Parkash Kaur : AIR 2017 SC 5275, it is held by the Kerala High Court in Sam Sabu v. The General President, Indian Pentecostal Church Of God (IPC), 2020-2 KHC 363; 2020-2 KLT(SN) 13 (R. Narayana Pisharadi, J.), as under:

• “Dismissal of an application filed under Order IX Rule 13 of the Code for default is an order passed in miscellaneous proceedings and it is expressly included in the explanation provided to Section 141 of the Code. It follows that, Annexure-10 application filed by the defendants _{(Application for restoration of the application filed under Order IX Rule 13 which was dismissed in default)} is maintainable under Order IX Rule 9 of the Code.”

Suit Dismissed for Default, No Appeal: For it is Not Specifically Conferred

Jaswant Singh v. Parkash Kaur (A.K. Sikri, Ashok Bhushan, J.), AIR 2017 SC 5275; 2018-12 SCC 249, is the Authority on this matter.

The Supreme Court of India held in this case (Jaswant Singh v. Parkash Kaur) as under: Appeal is Not a Substantive Right. No Appeal Unless Appeal Specifically Conferred.

• “58. There cannot be any dispute to the view taken by the different High Courts in various judgments as noticed above that an appeal is a substantive right and not a mere matter of procedure and unless the right to appeal is specifically conferred it cannot be inferred under Section 141 of the C.P.C.”

By Section 141 – Order IX is Made applicable to all Proceedings

In Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249, it is continued as under:

• “58. ….. The present is not a case where we are reading the right of appeal from Section 141 CPC. Section 141 now expressly provides that Order 9 is applicable to all proceedings in civil jurisdiction. When Order 9 is made applicable to the proceedings in the nature of application seeking recall of the order dismissing the application under Order 9, Rule 13 C.P.C. the order passed by the civil court rejecting such application is clearly referable to Order 9, Rule 9 C.P.C. and an order which is clearly referable to Order 9, Rule 9 C.P.C. shall also be appealable by virtue of Order 43, Rule 1 (c) C.P.C. 
• Rejection of application for restoration which is referable to Order 9, we cannot refuse to treat an order rejecting application under Order 9, Rule 9 C.P.C.for the purposes of Order 43, Rule 1 (c) C.P.C.”

Second Application for Restoration of O IX r. 9 Application is Maintainable

The Supreme Court, in Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249, further continued as under:

• “58. …. The Full Bench judgment of Madhya Pradesh High Court in so far as it answered question No.1 as framed in paragraph 1 of the judgment lays down the correct law. However, the view of the Full Bench that when application under Order IX Rule 9 C.P.C. for restoration of suit is rejected, the second application for restoration of the original application although falls under the purview of the Order IX Rule 9 C.P.C. read with Section 141, rejection of the application does not fall under Order XLIII Rule 1(c) C.P.C., to the above extent, the view of the Full Bench cannot be approved. When the second application as held by Full Bench falls under Order IX Rule 9 C.P.C., hence the right of appeal shall also accrue when such application is rejected. In view of the above discussion, we are of the considered opinion that the appeal filed by the appellants against order dated 23.12.2005 was clearly maintainable and the High Court erred in holding that such appeal was not maintainable.”

The Kerala High Court, following Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275, it is held  in Latha Menon v. Ponnamma (Anil K.Narendran, P.G. Ajithkumar, JJ.), 2022-3 KLT 583, as under:

• “The Apex Court in Jaswant Singh v. Parkash Kaur [2018-12 SCC 249] was concerned with the question, where an application for restoration of application under Order IX, Rule 13 of the Code is dismissed for non-appearance of the applicant, would not that order be amenable to appeal under Order XLIII, Rule 1(c) or 1(d). The Apex Court has considered the extent of applicability of Section 141 of the Code to the interlocutory applications. After referring to various decisions of the Apex Court as well as different High Courts including what has been held by this Court in Kallianikutty Amma v. State of Kerala [AIR 1974 Kerala 171] it was observed that the provisions of Section 141 of the Code could not be applied except to the procedural matters; it could not be invoked in cases where a substantive right is involved.”

Application under O IX, R 13 must be liberally construed

In G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54, it was held that the words  ‘was prevented by any sufficient cause from appearing’ in Order IX, Rule 13 CPC must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case.

In Restoration, Sufficient Cause for Non-Appearance Material, Not conduct of Party

In Sam Sabu, v. The General President, Indian Pentecostal Church Of God (IPC), 2020-2 KHC 363; 2020-2 KLT(SN) 13 (R. Narayana Pisharadi, J.) held that in a restoration matter, past conduct of the defendants is not material. What is material to be considered is only whether the party has shown sufficient cause for non-appearance on the date of hearing of the application which was dismissed for default.

The Kerala High Court (Sathish Ninan, P. Krishna Kumar, JJ.) in Ambily M.M  v. Santha, 2025 KER 60255, referring its earlier decision in Shivananda v. Susheela, 2021 (5) KLT 1189, held that the suit being one for partition, the bar of a suit under Order IX Rule 9 of CPC has no application, and that therefore another suit could always be filed for the relief. It is also pointed out that there is no point in driving the parties to another litigation.