Sri Sushil Kumar De and anr. Vs. Smt. Chhaya De and anr. - Court Judgment

P.K. Ray, J.

1. This application under Section 115 of the Code of Civil Procedure has been filed by the plaintiff/petitioner challenging the order dated 17th May, 2002 passed by learned 5th Civil Judge (Senior Division) at Alipore in Miscelleneous Case No. 7 of 2002, arising out of title suit No. 18 of 1991 whereby and whereunder the application dated 1st April 2002 of the plaintiff/petitioner praying recall of the order dated 27th March, 2002 passed in Msic. Case No. 7 of 2002 was rejected. The opposite parties of this revisional application has raised the question of maintainability of this revisional application under Section 115 of the Code of Civil Procedure on the ground that the impugned order is an appealable order. Hence, before going into the merit of the matter, this Court heard the parties on issue about maintainability of the revisional application.

2. Before dealing with the said question, a factual matrix is required to be dealt with for proper adjudication of the issue. Miscellaneous Case No. 7 of 2002 arose with reference to the application filed by the plaintiff/ petitioner praying for setting aside the Order dated 21st September 2001 and thereby restoration of the suit being Title Suit No. 80 of 1991. Thus miscellaneous case was filed in terms of the provision of Order IX Rule 9 of the Code of Civil Procedure, 1908; hereinafter refer to as said Code. This Miscellaneous case was dismissed for default by the order dated 27th March, 2002 passed by learned Civil Judge, 5th Court (Senior Division) at Alipore. The plaintiff/petitioner filed an application for recalling the said order on 1st April 2002 which was ultimately rejected on merit by the impugned order dated 17th May, 2002 of this revisional application. Learned Court below disbelieved the ground for non-appearance of the parties on the date as fixed for hearing of Miscelleneous Case No. 7 of 2002.

3. Challenging that order, the present revisional application. On issue of maintainability of this application, learned senior advocate Mr. Sudhish Dasgupta for the opposite party, has contended that a proceeding under Order IX is a Miscellaneous proceeding in view of explanation under Section 141 of the said Code and in terms of Section 141, all the procedure provided in the said Code in regard to suits, should be followed in disposing of all the proceedings under Order IX. It has been argued that once an application under Order IX Rule 9 of the said Code is dismissed for default, the party concerned is entitled to file another Miscelleneous Case for restoration of the earlier Miscelleneous Case by filing application under Order IX Rule 9, since, the order dismissing earlier Miscelleneous Case for default would be considered as an order passed under Order IX Rule 8 or the concerned party has the option to prefer an appeal under Order 43 Rule 1(c) of the said Code, Having regard to such legal position, it is submitted by the learned senior advocate Mr. Sudhis Dasgupta that since the impugned order has been passed under the provision of Order 9 Rule 9 of the said Code; the revision application is not maintainable in view of the provision of appeal under Order 43 Rule 1(c) of the said Code. In support of such argument, learned senior advocate Mr. Sudhis Dasgupta has relied upon the judgments passed in the cases Mst. Nurnahar Bewa and Anr. v. Rabindra Nath Dev and Ors. reported in 0065/1988 : (1988)2CALLT32(HC) , a judgment of Special Bench, Dulal Chandra Ojha v. Banamali Guchait and Ors., reported in : AIR1989Cal91 , passed by learned single Judge of this Court and Hazi Rustam Ali v. Emamnuddin Khan and Ors., reported in : AIR1981Cal81 , passed by learned single Judge of this Court.

4. On the other hand, learned advocate Mr. Kargupta for the petitioner contended that impugned order was passed by the learned Court bellow on exercise of his power under Section 151 of the said Code and accordingly the provisional application is maintainable before this High Court. In support of his contention, learned advocate has strongly relied upon a Full Bench judgment of Madhya Pradesh High Court passed in the case Nathu Prasad v. Singhai Kapurchand, reported in : AIR1976MP136 , judgment passed by this Court in the case, In re: Haridas Basak, reported in : AIR1997Cal371 and the case Lakhai v. Ram Niwas and Ors., reported in AIR 1987 All 346.

5. For effective adjudication, the provisions of Order IX Rule 9, the appeal provision under Order 43 Rule 1 and the provision under Section 141 are required to be dealt with. Section 141 of the Code of Civil Procedure, by Civil Procedure Code (Amendment) Act 104 of 1976 with effect from 1st February, 1977, was amended incorporating under heading 'explanation' that the proceedings includes proceedings under Order IX of the said Code. Section 141 with amended provision with effect from 1st February, 1997 read thus:

'141. Miscellaneous proceedings--The procedure provided in this Code in regard to suit shall be followed, as far as sit can be made applicable, in all proceedings in any Court of civil jurisdiction.

[Explanation.--In this section, the expression 'proceedings' includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.]'

6. In view of the amended provision, the earlier dispute has been resolved which centered round the point whether Miscelleneous Case under Order IX of the said Code would be considered as Miscellaneous proceeding. In view of the explanation, now it is settled legal position that proceeding under Order IX is the original miscellaneous proceeding wherein all the provisions of the said Code as applicable to a suit is applicable. In that view of the matter, Order IX Rule 8 is applicable when any order dismissing the application praying restoration or recalling of the application praying dismissal order of the suit, is dismissed for default. This point has been clarified by the Special Bench judgment of this Court as relied upon by learned senior advocate Mr. Sudhis Dasgupta in the case of Mst. Nurnahar Bewa & Anr. (supra). Before this Special Bench, the following question cropped up for decision:

'(1) Whether by invoking the provision of Section 141 of the Code, an application Order 9 Rule 4 or Order 9 Rule 9 of the Code can be made for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 of Order IX of the Code?

(2) When such an application is maintainable, what would be the limitation for such an application?'

7. The question No. 1 as decided by the said Special Bench of this Court is very vital in adjudicating the present one and accordingly the answer of Special Bench to that point is quoted in extenso as the same would be profitable for deciding the case. Paragraph 10 of Special Bench judgment reads thus :

'After considering the respective contentions made on behalf of the parties, it appears to us that the Civil P.C. has got two parties which may be terms as (a) 'body of the Code and (b) the 'rules'. Mr. Bhattacharya, in our view is justified in contending that the body of the Code is some what inflexible inasmuch as the same cannot be altered except by amendment by the Legislature but the rules concerning with the details and machinery for implementing the various provisions of the Code, requires greater flexibility and necessarily they should be easily altered. Precisely for the said purpose, the High Courts have been empowered under Section 122 to bring suitable amendments to various rules under the orders contained in the Civil Procedure Code. Such orders and rules basically relate the procedural matters and they get sustenance from the section of the Code of Civil Procedure. In our view, Mr. Bhattacharya has reasonable contended that while section in the Code of Civil Procedure creates jurisdiction, the rules indicate the mode in which such jurisdiction is to be exercised and the rules provide for the procedure for implementation of substantive rights created under various sections of the Code. It however appears to us that the rules under various orders of the Code of Civil Procedure are not absolutely procedural but they also dealt with substantive rights. For example we may refer to the provisions of Order 21 of the Code. Various rules under Order 21 indicate substantive rights given to the parties to the suit and also strangers opposing the execution of the decree. It, however, appears to us that the 'proceedings' referred to in Section 141 of the Code of Civil Procedure are not confined to only original proceedings. The Supreme Court in Ramchandra's case has indicated that 'proceeding' under Section 141 are of wider amplitude. It also appears to us that the conflict as to whether or not a proceeding under Order 9 will be miscellaneous proceedings as contemplated in Section 141 of the Code of Civil Procedure has now been set at rest by the Amendment Act of 1976. The law Courts entertained different views as to whether or not a proceeding initiated on an application made under order 9 can be treated as a miscellaneous proceeding attracting Section 141 Code of Civil Procedure. Or it will be a case of substantive right outside the purview of Section 141. In order to obviate the conflicts in the decisions of various High Courts, an explanation has been added to Section 141 of the Code of Civil Procedure by the Amendment Act of 1976 and within the expression 'proceeding', the proceedings under Order 9 have been specifically included. For such inclusive definition, it is immaterial whether the proceedings initiated on the basis of an application under Order 9 partakes the character of a substantive right or procedural matter. Whatever may be the nature of the proceedings initiated under Ordcer 9 of the Code of Civil Procedure, as such proceedings are to be treated as miscellaneous proceedings within the meaning of Section 141 of the Code of Civil Procedure as amended. In our view, therefore, the application for restoration of a Miscellaneous case arising out of an application under Rules 4, 9 or 13 of Order 9 for restoration of Miscelleneous case if such Miscellaneous Case itself is dismissed for default, is maintainable under Order 9 read with Section 141 of the Code of Civil Procedure and the first question referred to the Special Bench is therefore answered in the affirmative.'

8. Prior to the decision by Special Bench, learned single Judge of this Court decided the said issue in the Case Hazi Rustam Alt (supra) holding, inter alia, that even an application under Order IX Rule 13 is dismissed for default, there would be two alternative remedies available to the party concerned namely application under Order IX Rule 9 read with Section 141 or an appeal under Order 43 Rule 1(c) of the said Code. It has been further held in the said judgment that under no circumstances, application under Section 141 of the said Code would be maintainable, in view of the settled law that where there is a specific provision in the Code, Section 141 has no applicability. Another single Judge of this Court in case Dalai Ch. Ojha (supra) also has taken the identical view that the appeal under Order 43 Rule 1(c) of the said Code is maintainable when the learned Appellate Court below rejected the appeal holding that same was not maintainable to challenge an order as passed in the application praying restoration of the Miscelleneous Case as was dismissed for default under Order IX; Rule 9 of the Code of Civil Procedure. The aforesaid judgment has been relied upon by learned senior advocate Mr. Sudhis Dasgupta raising the question of maintainability of this revisional application.

9. Mr. Kargupta, learned senior advocate on the other hand placed much reliance to the Full Bench judgment of Madhya Pradesh High Court consisting of Three Judges of the said Court and has drawn the attention of this Court to different paragraphs of said judgment.

10. Having regard to the contention of the parties, the question of maintainability of this revisional application challenging the order of learned Court below refusing to restore the application for setting aside the ex prate decree as filed under Order IX Rule 9 of the said Code by way of recalling of the said order and thereby refusal to pass the order restoring the said application, can be resolved on the reflection of the provisions of the appeal as laid down under Order 41 Rule 1 read with Section 104 of the said Code. In answering that question, since an argument has been advanced that after amendment of Section 141 by Amendment Act, 1976 incorporating the word 'miscellaneous proceeding' it means a proceeding under Order IX Rule 9 of the said Code under the heading explanation of that section, another question also is require to be answered as to whether in view of the amendment of Section 141 under the Amendment Act of 1976 of the said Code, incorporating under the heading 'explanation', the application under Order IX Rule 9 is also a miscellaneous, proceeding, wherein, all the provisions of the Civil Procedure Code would be applicable, the provision of the appeal under Order 43 Rule 1 read with Section 104 of the said Code have got its applicability automatically so far as maintainability of the appeal against that order, refusing to restore any application as dismissed for default with reference to the application under Order IX Rule 9 praying for setting aside the ex parte decree. If this Court finds that appeal is not maintainable against the impugned order of this revisional application, the automatic consequence would be that the revision would be maintainable, however, subject to the limitations and the contours of the revisional jurisdiction under Section 115 of the said Code read with the present amendments as on this date. To find the answer of maintainability of the appeal or not, a little bit introspective analysis of the provisions of the appeal qua the nature of right with reference to the appeal, are required to be taken note of in the mind, which this Court will now do.

11. Right to appeal whether is a substantive right or procedural will help to adjudicate the said issue herein. Long back in the year 1928, the Privy Council in the case of Kirpa Singh v. Ajai Pal Singh, reported in AIR 1928 Lahore 627 held 'it is settled law that right of appeal was not a mere matter of procedure but a vested right which inherent in a party from the commencement of the action in the Court of first instance and such right could not be taken away except by an express provision or by necessary implication'. The Constitution Bench of Apex Court of India consisting of Five Judges in the case Garikapati Veeraya v. N. Subbiah Choudhry and Ors. reported in : [1957]1SCR488 , on consideration different judgments of Privy Council as well as of other High Courts ultimately in paragraph 23 held thus:

'From the decisions cited above the following principles clearly emerge':

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exdercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be take away only by a subsequent enactment, if it also provides expressly or by necessary intendment and not otherwise.'

12. The Civil Procedure Code provides two rights, one is procedural and another is substantive. It is now a settled law that right to appeal and the provision to appeal is a substantive right vested to a party. Keeping in mind, the nature of right with reference to appeal, which is substantive, the provisions of the appeal under Section 104 read with Order 43 with reference to the particular provision as this Court now concerned, are to be looked into. Section 104 of Civil Procedure Code reads thus:

'104. Order from which appeal lies--(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:(i) any order made under rules from which an appeal is expressly allowed by rules;'

13. Order 43 Rule 1 Sub-rule (c) is the only relevant provision which speaks of the provision of appeal from the order under Order 9 Rule 9 of the said Code. Order 43 Rule 1 Sub-rule (c) reads thus:

1. Appeal from orders--An appeal shall lie from the following orders under the provisions of Section 104, namely:

(a) ........

(c) an order under Rule 9 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of suit;'

14. On a bare reading of the said statutory provision of Order 43 Rule 1 Sub-rule (c), it appears that the substantive right of appeal has been contoured in such a language, the interpretation of which will give the answer to the question as raised in this revisional application. The provision of the appeal under Order 43 Rule 1 Sub-rule (c) provides that an appeal will He under the provision of Section 104 of the said Code against an order under Order IX Rule 9 rejecting an application by defining and contouring the said application by subsequent words 'for an order to set aside the dismissal of a suit'. From the mere reading of the said provision, it appears that only those orders are appealable wherein an application filed under Order IX Rule 9 of the said Code praying for an order to set aside the dismissal of a suit was rejected. The legislature in its wisdom has limited and contoured only the application, which sought for an order to set aside the dismissal of a suit and none-else, to attract the provision of the appeal under Section 104 of the said Code read with Order 43 Rule 1 Sub-rule (c) of the said Code. There was a further embargo mentioned, that the order with reference to such type of application in which the prayer is made to set aside the dismissal of a suit under Order IX Rule 9 of the said Code must be also an order open to appeal. Hence, from reading of the said provision, it appears, that appeal under Order 43 Rule 1 Sub-rule (c) of the said Code is maintainable with reference to the order passed in exercise of the power under Order 9 Rule 1 of the said Code if and only if the following two conditions are satisfied and fulfilled namely (i) the order must be an order open to appeal and (ii) the order must have been passed rejecting an application praying for setting aside the dismissal of a suit. Hence, from the language of the statute, it is abundantly clear that only a particular application praying for setting aside the dismissal of the suit if rejected then the substantive right of appeal is available to a party otherwise not. Hence, on interpretation of that statutory provision, this Court is of firm view that only the order rejecting an application praying for setting aside the order of the dismissal of a suit is appealable, except such, no application if rejected even on exercise of the jurisdiction under Order IX Rule 9, can be the subject matter of decision in appeal. In the instant case, it appears from the records that the Miscellaneous Case No. 7 of 2002 was outcome of an application under Order IX Rule 9 praying for setting aside the order of dismissal of the suit as per the order dated 25th February, 2002 passed by Girish Chandra Gupta, J. in the earlier civil revision case being No. C.O. 277 of 2002, was rejected on two fold grounds namely non-appearance of the party to place the said application i.e. default ground and the deficit Court fees were not paid. Subsequent to such, the petitioner filed an application praying recalling of the said order and restoration of the original application under Order IX Rule 9 of the said Code wherein prayer was made to set aside the order of dismissal passed in the suit in question. This second application in its text and context, in its contours and colours in its periphery and width, was nothing but an application praying for restoration of the original application filed under Order IX Rule 9 of the said Code praying for setting aside the ex parte order of dismissal.

15. Hence, this application cannot be termed as an application to fit in that language of Order 43 Rule 1 Sub-rule (c), as this application was never an application praying for an order to set aside the dismissal of a suit but the same was an application praying for restoration of earlier application 3.10.2001, wherein, prayer was made to set aside the ex parte order of dismissal of the suit and which suffered order of dismissal for default.

16. The view of this Court is fortified by the judicial pronouncement of different Courts, which this Court humbly refers being case Gaja v. Mohd. Farukh and Ors., reported in : AIR1961All561 , Nathu Prasad v. Singhai Kapurchand, Non-applicant, reported in and in the case Anil Chandra Roy and Ors. v. Uma Kanta Roy and Ors., reported in AIR 1985 NOC 1 (Gauhati). In the case of Allahabad High Court in Gaja (supra) though it was a judgment in the pre-amended stage of Section 141, the said Court in paragraph 5 held to this effect:

'With all respect I am in agreement with the decisions of this Court. An appeal is a substantive right not a mere matter of procedure and unless it is conferred by Order 43, Civil Procedure Code, it cannot be inferred by implication from Section 141 of the Code. Order 43 does not provide for an appeal from an order dismissing for default and application for restoration of an application under Order 9 Rule 9 and 13, Civil Procedure Code. No appeal therefore lay from the order of the Munsif dismissing the application dated the 3rd September 1956'.

17. The Madhya Pradesh High Court by Full Bench decision held in the same line discussing in details other different cases. The paragraph 26 of Natha Prasad (supra) case, which would be profitable to quote, read thus:

'We may now sum up the conclusions we have reached on the above discussion:

(i) When an application ('A') under Order 9 Rule 9, Code of Civil Procedure is itself dismissed for default of the plaintiff/petitioner's appearance, an application ('B') lies under Order 9, Rule 9 read with Section 141 of the same Code, for restoration of the application ('A'). In order to succeed in this proceeding ('B'), the petitioner has to satisfy the Court that she was prevented by sufficient cause from appearing on the date when the application ('A') was called on for hearing.

(ii) The order of dismissal for default of the application ('A') is appealable under Clause (c) of Rule 1, Order 43, Code of Civil Procedure.

(iii) Both the above remedies, i.e., application under Order 9 Rule 9, and appeal under Order 43, Rule 1(c) are concurrent. They can be resorted to simultaneously. Neither excludes the other. The scope of each of the above proceedings is however, different.

(iv) When an appeal (second remedy) is decided, one way or the other, the order of dismissal for default appealed from gets merged in the order of appellate Court, so that thereafter the application ('B') under Order 9, Rule 9, becomes infructuous. When it comes to the notice of the appellate Court that an application has also been made under Order 9, Rule 9, for restoration, the appellate Court may do well to postpone the hearing of the appeal until the decision of the application under Order 9 Rule 9, Civil Procedure Code.

(v) No appeal lies from an order rejecting an application ('B') for restoration of application ('A'), which later application was for restoration of the suit.

(vi) As observed by their Lordships of the Supreme Court in Mahadeolal Kanodia v. Administrator General of West Bengal, : [1960]3SCR578 and Jaisri v. Rajdewan, : [1962]2SCR558 , if a Division Bench does not agree with another Division Bench in a decision rendered earlier, the Second Division Bench must either follow the earlier decision or place the matter before the Chief Justice for being referred to a larger Bench. But, the second Division Bench cannot take upon itself the task of holding that the decision of the first Division Bench was wrong.'

18. It is true that said judgment was delivered prior to amendment of Section 141 whereby the heading 'explanation', was incorporated by amendment stipulating that a proceeding under Order IX Rule 9 is a miscellaneous proceeding wherein provisions of Civil Procedure Code is applicable. In fact by amendment of Section 141 of the said Code, nothing new has been said qua the judgment of Madhya Pradesh High Court which in some and substance has dealt with the issue whether any proceeding under Order IX Rule 9 is original Miscelleneous Civil proceeding or not by answering the same as Original Miscelleneous Civil proceeding and the same has not been accepted as 'miscellaneous proceeding' being an original civil proceeding in terms of explanation of Section 141 as incorporated by Amendment Act of 1976.

19. The single Bench of Gauhati High Court in the case Anil Chandra Roy and Ors. (supra) relied the said Full Bench decision of Madhya Pradesh High Court and answered the question that the appeal against dismissal of the second application praying for restoration of the earlier one, which was filed under Order IX Rule 9 praying for setting aside the ex parte order of dismissal of the suit is not maintainable. The judgment though in brief, but being a valuable one for this case quoted in extenso:

'When an application under Order 9 Rule 9 of CPC is dismissed for default and/or on merits an application lies under Order 9 Rule 9 read with Section 141 of the CPC for restoration of the former application, or the order of dismissal of the former, application under Order 9 Rule 9 of CPC is also appelable under Clause (c) or Rule 1 of concurrent and neither excludes the other. But the scope of each proceeding is, however, different. When an appeal is decided by the order of the Appellate Court in one way or other, the second application simultaneously filed under Order 9 Rule 9; for restoration of the first application becomes infructuous. But no appeal lies from an order rejecting an application under Order 9 Rule 9 for restoration of the first application becomes infructuous. But no appeal lies from and order rejecting an application under Order 9 Rule 9 preferred for restoration of the first application becomes infructuous. But not applies lies from an order rejecting an application under Order 9 Rule 9 preferred for restoration of earlier application filed under Order 9 Rule 13 of the Code which was dismissed for default. The reason being that the dismissal order passed under Order 9, Rule 9 of CPC praying for restoration of the earlier petition preferred for setting aside the decree passed in the suit is well covered under the explanation of the provisions of Section : AIR1976MP136 , relied on.'

20. Hence, having regard to all provision of the law and interpretation of the statute and relying upon the said judgments, it is abundantly clear that no appeal is maintainable with reference to the order rejecting the prayer for restoration or original application filed under Order 9 Rule 9 praying for setting aside the ex parte dismissal of the suit as rejected on the ground of default. Now the second question namely by Amendment Act of 1976, when Section 141 was amended and by way of explanation it was provided that a proceeding under Order IX Rule 9 would be considered as miscellaneous proceeding and provisions of the Code will be applicable, whether such amendment by necessary implication automatically vested any substantive right of appeal in terms of Order 43 Rule 1; Sub-rule (c). It appears that there was no amendment made in the language of Order 43 Rule 1 Sub-rule (c) even after amendment under the explanation of Section 141, whereby a provision was incorporated that all proceeding under Order 9 Rule 9 would be considered as miscellaneous proceeding. Since the legislatures by their wisdom did not amend the language of Order 43 Rule 1 Sub-rule (c), mere explanation in Section 141 and that too with reference to the proceeding under Order IX Rule 9 of the said Code, which is nothing but a procedural right, has not vested any party a right to appeal, a substantive right, which unless and until by necessary expression is provided in the statute, is not available. In that view of the matter, the argument as advanced by the learned Senior Advocate Mr. Sudhis Dasgupta by referring the law Commission reports so far as amendment of Section 141 in 1976 by incorporating under the explanation wherein proceeding under Order IX Rule 9 has been declared as miscellaneous proceeding will not help to hold that revision will not lie but an appeal, due to the reason that an appeal being a substantive right is required to be provided in the statute specifically and furthermore in absence of any amendment of language of Order 43 Rule 1 Sub-rule (c), same is not available to a party.

21. In that view of matter, the impact of the amendment of Section 141 of the said Code has no merit to provide substantive right to the plaintiff to prefer an appeal against the rejection of his application praying restoration of original application under Order IX Rule 9 praying for setting aside the ex parte order of dismissal of suit. However, it appears that the Calcutta High Court by two judgments has taken a different view without assigning any reason in details which has been relied upon by learned senior advocate Mr. Sudhis Dasgupta, being the judgment passed in the case Hazi Rustam Ali v. Emamnuddin Khan and Ors., reported in : AIR1981Cal81 and Dulal Chandra Ojha v. Banamali Guchait and Ors., reported in : AIR1989Cal91 . With due respect to my learned brother, who passed the judgment, it appears that in the Hazi Rustam Ali (supra) case, the point of law as now being dealt with herein, namely whether an order rejecting an application praying for restoration of the original application under Order IX Rule 9 of said Code praying for setting aside the ex parte order of dismissal of the suit is revisable or appealable was not at all the question of law involved in the said manner. No argument was advanced and no adjudication made to that effect in the said case. The said case relates to the question whether second application being an application praying restoration of the 'original application under Order IX Rule 9 could be filed under Section 151 of the said Code or under Order IX Rule 9 of the said code. In answering the question, the view of Madhya Pradesh High Court that the application under Section 151 was maintainable has been considered as not good law, relying upon the judgment of Division Bench of Calcutta High Court in the case Smt. Bimala Devi v. Aghore Chandra Mallick and Ors., reported in : AIR1975Cal80 . However it has not been settled by the Special Bench judgment in the case Mst. Nurnagar Bewa and Anr. v. Rabnindra Nath Dev and Ors., reported in 0065/1988 : (1988)2CALLT32(HC) , that application praying restoration of the original application of Order IX Rule 9 and/or application for recalling that order is maintainable under Order IX Rule 9 read with Section 141 of the said Code. It is true that in the event of existence of a specific provision, Section 151 of the said Code has no applicability. It is now settled that once an application under Order IX Rule 9 of the said Code praying for setting aside the order of dismissal of the suit is dismissed, there are two courses open, one is to prefer an appeal under Order 43 Rule 1 Sub-rule (c) and another to file an application under Order IX Rule 9 praying for recalling of the said order rejecting the original application under Order IX Rule 9 of the said Code praying for setting side the order of dismissal of the suit. This Court is of the view that in view of the amended provision of Section 141 as effected from the year 1976, the second application praying for restoration of original application as was rejected in which the prayer was made for setting aside the ex parte order of dismissal of suit could be filed under Order IX Rule 9 of the said Code but not under Section 151 of the said Code. Still then, no appeal would lie under Order 43 Rule 1 Sub-rule (c) in view of the statutory embargo to entertain such appeal by qualifying the word 'application' in the manner as already discussed above. The second application under Order IX Rule 9 is not an application praying for setting aside the ex parte order of dismissal of suit but same is an application praying for restoration of original application under Order IX Rule 9 of said Code wherein prayer was made for setting the order of dismissal of suit. Accordingly, it is held by this. Court that once any original application filed under Order IX Rule 9 of the said Code praying for setting aside the order of dismissal of the suit is rejected on the ground of default, the second application praying for restoration of the original one as suffered dismissal order due to default though is entertainable by the Court under Order IX Rule 19 of the said Code but no appeal will lie with reference to the order rejecting the second application as the same was not an application praying for an order setting aside the dismissal of the suit but an application praying for restoration of the original application under Order IX Rule 9 of the said Code for setting aside the ex parte order of dismissal of the suit by recalling the order of dismissal for default'. However, it appears that in Dulal Chandra Ojha (supra) case, learned single Judge of this Court held otherwise by holding, inter alia, that appeal is maintainable with referent to such second application praying for restoration of the original application under Order IX Rule 9 of the said Code as filed. The order passed by my learned brother, with due respect, is not appealing me to subscribe the views as expressed. In the said judgment, there is no discussion made with reference to the point of law as raised herein and there was no adjudication to that effect. It appears that the learned brother allowed the revisional application, which was cropped up from the rejection of appeal filed by a party when his application that is the second application praying for restoration of original one as filed under Order IX Rule 9 of the said Code was dismissed for default. Learned appeal Court below in the said matter rejected the appeal on the ground that appeal was pot maintainable under Order 43 Rule 1 Sub-rule (c), against which revisional application was moved before this Court. While deciding the issue, the learned single Judge observed that appeal was maintainable and accordingly quashed the order. In the said judgment, there is no discussion of the question of law as well as the statutory provision whereby under Order 43 Rule 1 Sub-rule (c), an embargo was made in the language itself qualifying the nature of application as already discussed in earlier paragraph. Hence it appears that there was no discussion made, no adjudication done by the learned brother when the said conclusion was reached in the case Dulal Chandra Ojha (supra). It is a settled law that a judgment is a precedent and binding when the question of law involved and the factual matter placed are identical. In the instant case, though the factual matters are identical but the question of law was not property thrashed. Now, the Court has to answer the question as to whether that judgment has any binding effect before this Court as a precedent. With due respect to the learned brother, I am of the view that the said judgment passed in Dalai Chandra Ojha (supra) is not a binding precedent as it is attracted by the doctrine judgment per incuriam'. Reliance may be placed to some English cases on theory of per incuriam as enunciated by the Courts, namely Young v. Bristol Aeroplane Co. Ltd., reported in (1944)2 All ER 293 at page 300, wherein the Court held:

'Where the Court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law. But where the Court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, right to say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this Court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. Two clases of decisions per incuriam fall outside the scope of our enquiry, namely (i) those where the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covers the case before it--in such a case a subsequent Court must decide which of the two decisions it ought to follow; and (ii) those where it has acted in ignorance of a decision of the House of Lords which covers the point-in such a case a subsequent Court is bound by the decision of the House of Lords.'

22. The observation of Lord Goddard in Moore v. Hewitt, reported in (1947)2 All ER 270 and Penny v. Nicholas, reported in (1950)2 All ER 89, the apex Court considered, in addition to the other judgments passed by Indian Court in the case A.R. Antulay v. R.S. Nayak and Anr., reported in : 1988CriLJ1661 , a judgment of Constitutional Bench, wherein in paragraph 42 the Court held as follows:

'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling. Also see State of Orissa v. Titagarh Paper Mills Co. Ltd. We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.'

In Moore (supra), Lord Goddard, C.J. at page 272A of said report held to this effect:

'The attention of the Court was never called to Hughes v. Wavertree (1), and the Court, therefore, acted per incuriam. It was laid down in Young v. Bristol Aeroplane Co Ltd. (4), that the Court of Appeal is bound by its own judgments with certain exceptions is where the Court given a decision per incuriam because the provisions of a statute or the authority of a case have not been brought to their attention.'

23. In Penny (supra), Lord Goddard, C.J. at page 91H and 92A of the said report held to this effect:

'It has been laid down by the Court of Appeal in Young v. Bristol Aeroplance Co., Ltd (4) that where material cases or sections of statutes were not cited to the Court in a case, the Court need not follow the decision if those cases or enactments might have influenced it had they been cited.'

24. Even in the recent case Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., reported in : [2001]3SCR479 , the Apex Court on considering the earlier judgments has set out the parameter to test a judgment under the said doctrine of per incuriam.

25. Having regard to such legal position, I am sorry to hold that the judgment of Dulal Chandra Ojha (supra) is not a ratio decidendi and/or a binding precedent before this Court as it is hit by doctrine of per incuriam. However, learned senior advocate Mr. Kargupta also has referred to a decision in support of his case to submit that one learned brother of this Court exercised his revisional jurisdiction in such type of cases. Reference has been made to the case In re: Harridans Basak, reported In : AIR1997Cal371 . On perusal of the said case Haridas Basak (supra) it appears that though the revisional application was entertained on identical fact and situation of this present case, but learned brother Judge had no occasion to decide the question as raised herein since the same was not raised by anybody. In that view, the judgment will not help to decide the question as involved herein.

26. Having regard to such, accordingly, I do hold that against the impugned order of this revisional application, there was no scope before the petitioner to move any appeal under Order 43 Rule 1 Sub-rule (c) read with Section 104 of the said Code in view of the statutory embargo. Accordingly the question of maintainability of the revisional application as raised by the learned senior advocate for the opposite party Mr. Sudhis Dasgupta is answered against the opposite party.

27. Hence, this revisional application is maintainable. But before parting with the matter since this Court feels that a contra judgment has been delivered by one learned brother of this Court, Susanta Chatterjee, J. (as His Lordship then was), which this Court has already held as judgment per incuriam and accordingly not binding to this Court as precedent though this Court is sitting in the co-ordinate jurisdiction, but in view of the question as raised, it requires a broader consideration by the larger Bench following the principle of 'Judicial discipline' as well as the mandate of the Apex Court holding, inter alia, that even if any judgment of other co-ordinate Bench must refer the matter to larger Bench, which is reflected in the judgment Shridhar son of Ram Dular v. Nagar Palika, Jaunpur and Ors. reported in : AIR1990SC307 , Sub-Inspector Rooplal and Anr. v. L.T. Governor through Chief Secretary, Delhi and Anr., reported in (2001) SCC 644. Hence, with due abeyance of 'Judicial Discipline', this Court feels that this matter should be referred to the larger bench. Hence, applying the said judgment of the apex Court and following the judicial discipline, let the question as decided holding non-maintainability of appeal under Order 43 Rule 1 Sub-rule (c) read with Section 104 of the Civil Procedure Code challenging an order passed in an application praying for restoration and/or recalling of original application under Order IX Rule 9 of the said Code praying for setting aside the order of dismissals of suit and/or any order praying for recalling the order of 'dismissal for default' of an application under Order IX Rule 9 the said Code praying for setting aside the ex parte order of dismissal, and further holding that under said situation revision will lie, now may be placed to the larger bench, subject to an order to that effect by Hon'ble the Chief Justice of High Court, Calcutta. In that view, registry to take steps accordingly.

08.08.2003

Xerox certified copy of the order, if applied for, be given on urgent basis.