Eshwarawwa Vs. Amarappa - Court Judgment

Excerpt:
(a) civil procedure code, 1908 (central act no. v of 1908) - order 9 rule 9 -- petition filed for restoration of petition under order 33 rule 1 of cpc dismissed by both the courts below on ground that second petition could be filed & restoration application not maintainable -- en revision, held, dismissal of petition under order 33 of cpc amounted to dismissal of plaint, & hence restoration petition maintainable under.; ....the rejection by the trial court of petitioner's application under order 33 rule 1 c.p.c. for default tantamounts for all legal purposes to dismissal of the plaint in a suit. as a necessary legal corollary, therefore, it follows that the provisions of order 9, rule 9 c.p.c. are dearly attracted to the instant case and hence, the impugned orders of both the courts - below are liable to be set aside as they are not sustainable in law.; (b) -- order 33 rule 1 -- petition for suing as indigent person commences from the date of filing application under, & petition for restoration for dismissal for default held, maintainable under order 9 rule 9 of cpc. - karnataka value added tax act, 2003 [k.a. no. 30/2005] sections 4 & 15: [d.v.shylendra kumar,j] scheme of the act held, under the act, persons having transaction in the nature of sale or purchase of goods who are dealers and are required to be registered themselves as dealers which enables them to collect tax on sale of goods at the rate as provided for under the provisions of the act and pass it on to the state. it is a scheme where under ultimately the goods suffer tax irrespective of the number of transactions only once and at the value at which it reaches the consumer. act also envisages a scheme of net tax liability on the dealers. act provides for an alternative mode of payment of tax option extended to a dealer for payment of tax in lieu of the normal scheme of tax. composition scheme as an option enables the class of dealers identified in section 15 of the act, to pay tax at a notified rate not exceeding 5% in general in lieu of the net amount of tax payable by a dealer, the state government by issue of notification dated 23.2.2005 for such purpose had stipulated 4% to be the rate for dealers opting for composition. dealer is required to pay the tax at the rate of 4% in respect of the entire turnover irrespective of the fact as to whether some part of the turnover was liable to tax or otherwise. sections 4 & 15: [d.v.shylendra kumar,j] constitutional validity - petitioners effected purchases from outside the state and also not eligible for claiming the benefit of section 15 of the act is an optional scheme complaining of violation of article 14 of the constitution of india held, they definitely have locus to question the validity of the provision. it is not a provision for creating any additional tax liability. differential treatment having regard to the differently situated persons is not one resulting in discrimination. alternative scheme of taxation by composition is extended to them as a rough and ready method but at the same time not losing sight of the main object of the act or raising revenue, provision cannot be found fault with on the ground of being a discriminatory provision violating article 14. section 15 :[d.v.shylendra kumar,j] catering activity held, catering activity is much more than mere selling of food items; that they have been making purchase of many capital machineries from outside which necessarily does not form part of their products which is sold such as food items; that the capital machineries and other instruments in the nature of capital is used for either hiring or leasing to generate further revenue to the petitioner need for balancing the revenue to the state even after providing the facility of composition, the classification has been made and it is a reasonable classification passing the test of article 14 of the constitution of india. section 72(2) :[d.v.shylendra kumar,j] constitutional validity held, before levy of penalty under section 72(2) of the act, an opportunity is a must and that too enabling the dealer to show cause in writing. levy of penalty will be bad for not giving an opportunity and being in violation of section 72(2). - it is well-settled that the institution of a suit by an indigent person commences from the date when he makes his application under order 33, rule 1 c. are clearly attracted to the instant case and hence, the impugned orders of both the courts -below are liable to be set aside as they are not sustainable in law.ordermohamad anwar, j1. heard the arguments of learned counsel for petitioner. the learned counsel for respondent could not be heard as he could not keep himself present to canvass his arguments.2. this revision is direction against the concurrent orders of the courts below rejecting the application of the petitioner filed under order rule 9 c.p.c. for restoration of her petition filed under order 33, rule 1 c.p.c. in misc. case no. 7/89.3. the petitioner had presented the petition under order 33, rule 1 c.p.c. in the said misc. case no. 7/1989 against respondent in the trial court seeking permission to sue as an indigent person for the reliefs prayed therein. that petition came to be dismissed for default on 4.7.91. subsequently, she made an application under order 9, rule 9 c.p.c. in misc. case no. 7/91 before the trial court to restore her said petition. the respondent opposed that application. a formal enquiry was held by the learned munsiff. the petitioner adduced evidence in support of her said application. on the basis of evidence the learned munsiff recorded positive finding holding that petitioner had shown sufficient cause for her non-appearance on 4.7.1991 in the said misc. case no. 7/89 as she was ill and was not in a position to attend the court, but he dismissed her application in misc. case no. 7/91 holding that the said application filed under order 9 rule 9 c.p.c. is not tenable since she had the right to make fresh application under order 33, rule(1) c.p.c. in her appeal before the learned civil judge, he also concurred with the conclusion of the learned munsiff and rejected the appeal by judgment dated 29.3.1993. hence this revision by the petitioner.4. on consideration of the relevant provisions under order 33, rule 1 c.p.c. and order 9, i find that both the courts - below have minconceived these provisions and have misdirected themselves with the result they have reached at wrong conclusions.5. indisputably, in the case on hand, the petitioner's application under order 33 rule 1 c.p.c. in misc. case no. 7/89 had been dismissed by the trial court for her default in appearance at the stage of enquiry into her indigent condition which was being conducted in accordance with rule 7 of order 33 c.p.c. it is well-settled that the institution of a suit by an indigent person commences from the date when he makes his application under order 33, rule 1 c.p.c. and the enquiry to be conducted by the trial court on that application in regard to the indigent condition of the applicant forms part of the suit proceedings, and that the application itself partakes the character of a plaint (ramappa parappa v. gourawwa. air 1968, mys 270 in that view of the legal position it becomes dear that the rejection i by the trial court of petitioner's application under order 33 rule 11 c.p.c. for default tantamounts for all legal purposes to dismissal of the plaint in a suit. as a necessary legal corollary, therefore, it follows that the provisions of order 9, rule 9 c.p.c. are clearly attracted to the instant case and hence, the impugned orders of both the courts - below are liable to be set aside as they are not sustainable in law.6. for the aforesaid reasons, the petition is allowed. the impugned judgment of the lower appellate court and the impugned order of the trial court are set aside and the petitioner's application made under order 9, rule 9 c.p.c. in misc. cases no. 7/91 is allowed with the result her petition in misc, case no. 7/1989 filed under order 33, rule 1 c.p.c. stands restored to the file of the trial court.the trial court shall proceed further to deal with the said petition in misc. case no. 7/1989 on its file in accordance with law from the stage at which it was dismissed by it.parties to bear their own costs.

Judgment:
ORDER

Mohamad Anwar, J

1. Heard the arguments of Learned Counsel for petitioner. The Learned Counsel for respondent could not be heard as he could not keep himself present to canvass his arguments.

2. This revision is direction against the concurrent orders of the Courts below rejecting the application of the petitioner filed under order Rule 9 C.P.C. for restoration of her petition filed under Order 33, Rule 1 C.P.C. in Misc. Case No. 7/89.

3. The petitioner had presented the petition under Order 33, Rule 1 C.P.C. in the said Misc. Case No. 7/1989 against respondent in the Trial Court seeking permission to sue as an indigent person for the reliefs prayed therein. That petition came to be dismissed for default on 4.7.91. Subsequently, she made an application under Order 9, Rule 9 C.P.C. in Misc. Case No. 7/91 before the Trial Court to restore her said petition. The respondent opposed that application. A formal enquiry was held by the learned Munsiff. The petitioner adduced evidence in support of her said application. On the basis of evidence the learned Munsiff recorded positive finding holding that petitioner had shown sufficient cause for her non-appearance on 4.7.1991 in the said Misc. Case No. 7/89 as she was ill and was not in a position to attend the Court, but he dismissed her application in Misc. Case No. 7/91 holding that the said application filed under Order 9 Rule 9 C.P.C. is not tenable since she had the right to make fresh application under Order 33, Rule(1) C.P.C. In her appeal before the Learned Civil Judge, he also concurred with the conclusion of the learned Munsiff and rejected the appeal by judgment dated 29.3.1993. Hence this revision by the petitioner.

4. On consideration of the relevant provisions under Order 33, Rule 1 C.P.C. and Order 9, I find that both the Courts - below have minconceived these provisions and have misdirected themselves with the result they have reached at wrong conclusions.

5. Indisputably, in the case on hand, the petitioner's application under Order 33 Rule 1 C.P.C. in Misc. Case No. 7/89 had been dismissed by the Trial Court for her default in appearance at the stage of enquiry into her indigent condition which was being conducted in accordance with Rule 7 of Order 33 C.P.C. It is well-settled that the institution of a suit by an indigent person commences from the date when he makes his application under Order 33, Rule 1 C.P.C. and the enquiry to be conducted by the Trial Court on that application in regard to the indigent condition of the applicant forms part of the suit proceedings, and that the application itself partakes the character of a plaint (RAMAPPA PARAPPA v. GOURAWWA. AIR 1968, Mys 270 In that view of the legal position it becomes dear that the rejection I by the Trial Court of petitioner's application under Order 33 Rule 11 C.P.C. for default tantamounts for all legal purposes to dismissal of the plaint in a suit. As a necessary legal corollary, therefore, it follows that the provisions of Order 9, Rule 9 C.P.C. are clearly attracted to the instant case and hence, the impugned orders of both the Courts - below are liable to be set aside as they are not sustainable in law.

6. For the aforesaid reasons, the petition is allowed. The impugned judgment of the lower appellate Court and the impugned order of the Trial Court are set aside and the petitioner's application made under Order 9, Rule 9 C.P.C. in Misc. Cases No. 7/91 is allowed with the result her petition in Misc, Case No. 7/1989 filed under Order 33, Rule 1 C.P.C. stands restored to the file of the Trial Court.

The Trial Court shall proceed further to deal with the said petition in Misc. Case No. 7/1989 on its file in accordance with law from the stage at which it was dismissed by it.

Parties to bear their own costs.