Restoration of suit – citation required
Ramasamy
(Querist) 20 December 2011
This query is : Resolved
Dear Sir,
Suit dismissed for default. Thereafter the plaintiff filed an application for restoration of suit which was allowed on condition that the plaintiff has to pay costs to the defendant on or before a date as stipulated by the trial court and posted the suit to some other date for report of compliance of terms by the plaintiff regarding the payment of costs on the restoration application.
In this regard, my doubt is whether the order passed by the trial court on the restoration application for restoration of suit will come into effect: (a) whether from the date of the Order passed on the restoration application; or (b) whether from the date of the order passed after recording the compliance report by the trial court.
Kindly clarify this aspect.
If possible kindly provide me any Citations to that effect for which I would be very much grateful to the learned Experts.
Thanks in advance to the learned Experts.
prabhakar singh
(Expert) 20 December 2011
The order passed by the trial court on the restoration application for restoration of suit will come into effect from the date of the Order passed on the restoration application but if the cost not paid within
stipulated time the same shall be deemed to have been vacated on default date but still for valid reasons shown the court can condone the default in not paying cost within time u/s 151 CPC such things do not need any citation.
Nadeem Qureshi
(Expert) 20 December 2011
Mr. Prabhakar Is rightly explain your query i agree with him
Devajyoti Barman
(Expert) 20 December 2011
Once the restoration is allowed, the suit would would start from the place where it was ended.
Raj Kumar Makkad
(Expert) 20 December 2011
Suit is restored on the same day of order but subject to payment of cost. If cost is not paid, suit is dismissed.
Madhya Pradesh High Court
Pooranchand Mulchand Jain vs Komalchand Beniprasad Jain
AIR 1962 MP 64
prabhakar singh
(Expert) 20 December 2011
What was held in the case referred to by Mr.
Makkad is that when an application moved u/o 9r9 to set aside a dismissal u/o9r8 is set aside Order 9 Rule 9 cannot, therefore, be invoked for setting aside the dismissal in default of an application for restoration of a suit under that rule. On the same principle an order dismissing in default an application for restoration of a suit under Order 9 Rule 9 is not open to appeal under Order 43 Rule 1(c). The dismissal of such an application for default is in the exercise of the inherent powers of the court. That being so, the dismissal can be set aside by the exercise of the same inherent powers.
So this case law has no relevance for facts as they are for time being.
Correct me if I am wrong.
ajay sethi
(Expert) 20 December 2011
agree with experts order will come into operation on date of order subject to payment of costs . if costs not paid order stands vacated
kranthi kiran
(Expert) 21 December 2011
If the Petition U/o 9 R 9 is allowed conditionally, the suit will be restored after compliance of condition imposed in the order. If the party fails to comply the condition, the Judge will dismiss the said petition and consequently the suit.
If the party has genuine reasons to explain the facts that lead to non compliance of order, then he can file another petition U/o 9 R 9 CPC to restore the earlier petition filed U/o 9 R 9.
