Suit Dismissed for Default – No Appeal, Only Restoration under Order IX Rule 13 CPC

Saji Koduvath, Advocate, Kottayam.

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.”

S. 141 – Order IX is Made applicable to all proceedings

The Supreme Court, in Jaswant Singh v. Parkash Kaur, continued as under:

• “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 IX is applicable to all proceedings in civil jurisdiction. When Order IX is made applicable to the proceedings in the nature of application seeking recall of the order dismissing the application under Order IX Rule 13 C.P.C. the order passed by the civil court rejecting such application is clearly referable to Order IX Rule 9 C.P.C. and an order which is clearly referable to Order IX Rule 9 C.P.C. shall also be appealable by virtue of Order XLIII Rule 1(c) C.P.C.
• Rejection of application for restoration which is referable to Order IX, we cannot refuse to treat an order rejecting application under Order IX Rule 9 C.P.C. for the purposes of Order XLIII 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, further continued as under:

• “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.”