suit, which is impermissible as the application for restoration of the Misc. The Court can restore possession in exercise of its inherent powers under Section 151 of CPC. "Whether the defendant in a suit for declaration and injunction can maintain an application for injunction under Order 39 Rule 1(c) of the Civil Procedure Code, 1908?" 2. It merely regulates an existing right. 2 Units per case 11. A. allowed = . Delay Condon application and restoration application procedure; Please let me know below: 1. An application was filed by the plaintiff under Rule Order IX, Rule 4 of Order IX CPC for restoration of the suit. Even if restoration application is rejected, regular appeal will have to be decided or merit but the point that 2. P.C. did not file an application for restoration of the suit, which was dismissed in default, but had only filed the application dated 19.1.2010 which only sought allowing of the application and restoring of the suit by allowing of the pending application under Order 22 Rule 4 CPC. For restoration of a suit dismissed in default an application has to be filed either under Order 9, Rule 4 of the CPC or under Order 9, Rule 9 of the CPC. Institution of Suit: the Provisions under the Civil Procedure Code, 1908: Section 26(1), CPC says that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Counsel did not inform the plaintiff - Fault of the counsel should not prejudice the party - Application for restoration was filed immediately on getting knowledge of dismissal of the suit. You may file an application under 0 9 rule4 CPC for setting aside the order and restoring the suit by showing a sufficient cause for non appearance. Under the same Code for an order to set aside an abatement. Instead of leading to a duplication of procedure, the purpose, therefore, would be better served by giving an opportunity to the petitioner by the original Court itself to . A court can entertain an application for restoration of an application dismissed for default under inherent powers. Q.1:- Whether application for restoration of suit can be abated under O 22 R 3 of CPC? But in 2013, in Ram Prakash Agarwal & Anr vs. Gopi Krishan, it was held that an application under Order IX Rule 13 CPC cannot be filed by a person who was not initially a party to the proceedings. By way of present appeal under Order 43 Rule 1 of CPC, appellant has assailed impugned order dated 24.10.2008 passed by learned ADJ, Delhi, in civil suit No. High Court of Delhi was dealing with the petition filed under Section 151 of CPC for recalling of order dated 28.10.2021 and consequently, to restore the suit to its original number as well as to restore the interim order dated 21.12.2020 passed by the Court.. Brief Facts: The present suit came up for hearing before this Court on 21.12.2020 and on the said date, summons were issued to . It was held that for restoration of possession to the tenant, who was dispossessed by the landlord from the suit premises forcibly in violation of the orders of interim injunction, there is no necessity of filing a petition under Section 144 of CPC. That accompanying application has been prepared under my instructions. 1 As soon as an application is filed under this sub-rule, the withdrawal of the suit is complete and such withdrawal is not dependent on the court's order. Application to set aside the ex parte decree (Order 9 Rule 13) 2. Affidavit in support of Application for restoration. simply because the accused 1 and 2 happen to be the relations of the complainant. Restitution is an ancient institution which . 9 or 13 of Order 9 for restoration of the Misc. In the Court of _____, New Delhi. 4 & 3 and 9 & 8 — Application for restoration of suit — Extension of limitation period under S. 5, Limitation Act, 1963 — Effect of practice in (Calcutta) High Court on original side of drawing up, completion and filing of order of dismissal on expiry of thirty days from date of dismissal . Withdrawal of a suit can be allowed under Order XXIII Rule 3 of CPC if the defect is formal in nature and such that has no effect on merits of the case. under order ix, rule 9 of the code of civil procedure, 1908 - restoration of suit dismissed for default Below is the sample affidavit format to be filed with application under Order 9 Rule 9 of CPC for restoration of suit dismissed in default. Case under Order 9 Rule 9 CPC is still pending to be considered by the learned trial court. The question arose was whether a defendant could make an application under Section 151 CPC for dismissing the pending suit on the ground that the said suit has lost its cause of action. If the restitution application has been dismissed on merits then the principle of Res - Judicata will apply. Further submits that application for restoration of application under section 12(2) CPC is governed under Article 181 of the Limitation Act, 1908 which provides period of three years from the date when the right to apply accrues. 2 The court's permission is only required . It.application under Order 9 Rule 9 CPC was filed by the plaintiffs for restoration of the main suit on 26.8.2011. Power of supreme court to transfer suits, etc. A reading of section 3 (4)(b) of the Act shows that on receipt of an application, the Revenue Divisional Officer shall after giving reasonable opportunity to the landlord application under order ix rule 9, 1908 alongwith application under section 5 of the limitation act, 1965 read with section 151 of the code of civil procedure court seeking recall of the order and restoration of the suit to its original number which (though kept back) was dismissed in default by the hon'ble court due to non appearance of the plaintiff / counsel alongwith affidavit in support. restoration application: Against ex-parte decree in a suit restoration application may be filed under Order 9 Rule 13 and appeal may also be preferred. 1997 (1) Civil Court Cases 525 (Delhi) DELHI HIGH COURT. Both the remedies may be pursued simultaneously. • Suit dismissed under Order 9, Rule 2 & 3 C.P.C can be restored under order 9, Rule 4 C.P.C. Bar on suit to set aside decree on objection as to place of suing. Apply for review under Order 47 Rule 1; or. The delay in filing the application may be condoned under Section 5 of the Limitation Act, 1908. The matter was contested • The limitation period is 30-days from the date of dismissal of the suit. CPC Section 21A. That application was dismissed for default. IA No.12805/2006 under Order IX Rule 4 read with Section 151 CPC for the setting aside of the order dated 15.11.2006 and for the restoration of the suit. (t) To recall and cancel the court's invalid orders, etc. at least is clearly made out both from the complaint and sworn statements. "Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep.". When the defendant had sufficient reason for non-appearance before the court, he can move an IA under Order 9 Rule 13 of the Code of Civil Procedure(CPC) for setting aside the ex-parte decree. Plaintiffs moved another application for . Restitution under CPC. An appeal can be preferred under Order XLIII, Rule 1(c) of the Code against an order rejecting an application under Order IX, Rule 9 of the Code [8] ; however, a revision may lie from against an order . Restoration of Money Suit- Bahadur Pradhani v. Gopal Patel. Answers ( 3 ) I have perused your query. 122. Section 151 of the Civil Procedure Code is titled 'Saving of inherent powers of the Code'. Judgments on admission under order 12 Rule 6 C.P.C. 1. Before answering the above question, it is useful to briefly refer to the facts giving rise to the reference. Civil Procedure Code, 1908, Section 151, Order 23, Rule 1 -- Restoration of suit dismissed as withdrawn in view of compromise and statement of plaintiff - Withdrawal of suit was unconditional - Moreover, if any amount had to be paid under the compromise, the petitioners would not have waited for two years to file the restoration application . = Restoration of of suit dismissed for default as she was admitted in Hospital on that day, can be allowed when other side has not filed any counter - Lower court should not dismiss the I.A. (iii) the relief claimed must be properly consequential on the reversal or variation of the decree or order. simply because the advocate not accepted for imposing of costs - appears fallacious - Lower court orders are set aside - I. Yes SPA can be given for appearing in the matter. Continental Construction Ltd. 115, 151 & O.XLIII R. 3--Specific Relief Act, (I of 1877), Ss. Against this order the plaintiff made an application under Section 151 of the CPC to set aside the.order of dismissal to restore the suit. by the plaintiff : ; (2) Without notice to all the persons interested (b) After notice to all the persons interested (©) Both (1) and (2) (@ Either (1) or (2) ina suit dismissed in default (on the restoration of the suit cally on the restoration of the suit . 9 Rr. Petition allowed. [ 1] Mr Sarangi, per contra, has urged that as it is more than evident from Section 52 of the T.P. Pertinently, under CPC, the provisions for restoration of suit [20] dismissed for failure of service of summons [21] and non-appearance of parties [22]; setting aside of an order of ex parte proceedings [23] and setting aside of ex parte decree [24], exist. A decree may be final or preliminary. The plaintiff filed an application under Section 151 of the Code of Civil Procedure for restoration of the application under Rule 4 of Order IX CPC. However the plaintiff laboured under wrong impression, as such filed application under Order 9 Rule 9 CPC and prayed for restoration of the suit. Disposal of application for appointment of receiver, to sue as Application under Order 39 Rule 2A CPC, Setting aside ex parte decree or restoration of suit 3 Units per contested application 9. observed that the jurisdiction sought to be invoked by the petitioner was barred in terms of proviso to Section 115 of CPC since the application moved for withdrawal of suit, if decided . Granting restitution is the paramount duty of all . "Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep.". File a suit on the ground of fraud. | 49 DLR(AD) 150; Rule-13: With Sec.-5 of the Limitation Act: That the application under Order 9 rule-13 of the code of the Civil Procedure was not barred by limitation in the facts of this case as the limitation is to be counted from the date of knowledge of . 3. Below is the sample affidavit format to be filed with application under Order 9 Rule 9 of CPC for restoration of suit dismissed in default. Restitution under section 144 C.P.C. Case arising out of an application under Rule 4. 2. "The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud" on Court, In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. CPC Section 23. 3. The appeal in all such cases will be converted to all intents and purposes into a petition for restoration of the application under Order IX, Rule 13, Civil Procedure Code. , does not create a new right as such. It is divided into five types unlike judgement which is final in itself. Ltd. v. S.S. Enterprises, a petition was filed, under Section 25 CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where a suit was already pending.The Court directed the Calcutta suit to be transferred to Kanpur taking into account of fact that Kanpur suit was filed earlier in point of time, and that the suit was filed in . Last Updated on 2 years by Admin LB There can be many circumstances when either of the parties to the suit may die or the subject matter of the suit does not exist anymore. Oral: Veena Birbal, J. The said application for restoration was taken up for hearing on 20.11.2006, on which date the suit as well as the interim orders passed in the "Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep.". Restitution under CPC. [ 1] Or. Supreme Court Digest of Recent Cases (2006) 6 SCC 569: Civil Procedure Code, 1908 — Or. Said application was also dismissed in default on 29.01.2014.. I) in accordance with Order IV, Rule 2. That the contents of paras 1 to _____ of the complaint are correct and true to the best of my knowledge. 127/2007 by which application of the appellant for restoration of suit has been dismissed. In this case, the plaint of a Money Suit was rejected for non . 7. Power to transfer suits which may be instituted in more than one court. 199---Constitutional petition---Dismissal of suit for non-prosecution---Non-issuance of notice of restoration application to defendants and fresh notices after suit restored---Passing of ex parte decree on 6-4-2009 and getting possession of suit house by plaintiff through its execution---Application under S.12(2) , C.P.C. Sixty days: The date of abatement. CPC Section 24. It is available to the parties as well as his legal representative. 3. Abatement of Suit and Substitution of Parties: Meaning and Procedure. the rule, if any, under which the order is passed should also be mentioned. Transfer of Suit: According to Section 22 of the Civil Procedure Code 1908, where a suit may be instituted in any one of two or more Courts and is instituted in one of such court, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement . In case the suit was dismissed in default in the presence of the defendant then application is filed under latter provision whereas if the none on behalf of the defendant was present at the . [Explanation.—In this section, the expression "proceedings" includes proceedings under . 2. Rule-13: As the suit has been restored on payment on the compensatory cost to petitioners, it is not a fit case for interference. - This application under Order IX Rule 9 CPC has been filed by the plaintiff-company for restoration of its CMA No.5271/2013, which was filed for restoration of the Suit, but was dismissed for non-prosecution on 13.05.2013. He would also submit that the application for restoration of a writ petition, which was dismissed for non compliance of the Court order, shall not be treated as an application under Order IX Rule 2 of the CPC, therefore, the limitation prescribed for moving such an application is not attracted to a writ petition, which was dismissed for want of . An appeal against such decree; section 96 (2) (or to file a revision under section 115 where no appeal lies; 3. The Appellate Court dismissed the appeal and in the revision petition filed under Section 115 CPC, the High Court set . The Court upheld the contention. Civil Procedure Code, 1908, Section 151, Order 9, Rule 9 - Restoration of restoration application dismissed for default - Procedure provided for restoration of suit applies. The lower court ought not have dismissed the complaint under Section 203 of the Cr. You should immediately move an interlocutory application (IA) for setting aside/restoration of the ex-parte decree. Conditions of restitution. With the establishment of the People's Republic of China in 1949, the Chinese Communist Party aimed With a large number of pending cases, the Indian judiciary is overburdened and faces a stark lack of resources. As per Order 23, Rule 1(1) of the CPC, a plaintiff may abandon his suit or abandon a part of his claim at any time after the institution of a suit. 9, rule 9 C.P.C. The suit was not dismissed for non - appearance of the plaintiff but for .the court's order and ultimately by order 116 dated 2-5-1973 the plaintiff's suit was dismissed. CPC Section 25. Thirty days: The date of . What is essentially argued 5. 9.It is customary, when a plaint is presented, to Ordinarily, suit under the CPC is a civil proceeding instituted by the presentation of a plaint. To what court application lies. To restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. Do share the details of the case which got dismissed in default. SUITE NO._____/2015 General power of transfer and withdrawal. 8. This Misc (J) case has arisen out of Title Suit No.114 of 2014 upon a petition filed by the plaintiff/petitioner under Order IX Rule 9 CPC read with Section 151 CPC, praying for setting aside order of dismissal dated 29/11/2016 and restoration of Title Suit 129 of 2012 to file. Act and Order 22 Rule 10 of the Code that a ransferee pendente lite in a suit . for setting aside ex parte . Ans:- S141 of CPC- Miscellaneous proceedings.—The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. CPC . In any event criminal offence under Section 403, I.P.C. (6) It applies to an application for restoration when the suit dismissed under Rule 2, Order XVII of the Civil Procedure Code. Civil Procedure Code, Order 9 Rule 9 - Appeal against order refusing to restore suit dismissed in fault. In Avtar Singh and Co. Pvt. (5) It attracts an application for setting aside the dismissal under Rule 3 of Order XXV when a suit was dismissed on failure of the plaintiff to furnish such security for costs. jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature. . and the first question referred to the Special Bench is . 1 Units per case 10. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its . Restitution is an ancient institution which . An application for restoration of the suit under Order IX, Rule 9 is allowable provided it is made within 30 days of the dismissal of the suit. Hence, a party can only file an application for restitution and cannot institute a separate suit if the circumstances are covered by section 144 of the code [6] . Restitution under Civil Procedure Code. In Tek Singh vs. Shashi Verma, the interlocutory application filed under Order 39 Rule 1 CPC was dismissed by Trial Court holding that the relief asked for could not be granted as it would amount to decreeing the Suit itself. the ultimate decision in the suit goes against the defendant, and to urge that no amount of evidence can cure the defect in the pleading of material facts; and (d) if in spite of rejection of an application under Order VII, Rule 11(a) of CPC, the suit is ultimately dismissed on merits, then there may not be any case if such Misc. Civil Procedure Code, 1908 (V of 1908)-----Ss. RESTORATION OF SUIT DISMISSED UNDER ORDER 9, RULES 2 & 3 C.P.C. The court has jurisdiction under S. 151, C.P.C., to restore a suit previously dismissed by it if it thinks that such restoration is necessary in the ends of justice. In a situation like this, when two suits arising out of the same issues between the same parties are brought before the courts, there is bound to be wastage of . AFFIDAVIT: UNDER ORDER IX, RULE 9 OF THE CODE OF CIVIL PROCEDURE, 1908 - RESTORATION OF SUIT DISMISSED FOR DEFAULT. The brief facts leading to the institution of the suit and . It says, 'Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the court.'What needs to be noted in this section is as follows. Restitution under Civil Procedure Code. An order was passed on 1.12.1955 by the city civil court, restoring the suit on the basis of payment of Rs.50 as costs to be paid on or before 15.12.1955. - Petition under Section 397 of Companies Act, 1956 - Application for Appointment of Receiver - Application for Compromise of Suit - Application for Appointment of Guardian - Application to Sue as an Indigent Person under Order 33, Code of Civil Procedure - Appeal from Original Decree under Order 41, Code of Civil Procedure
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