1964 (5) TMI 53 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the appeal.
2. Applicability of Order 9, Rule 4 of the Code of Civil Procedure.
3. Jurisdiction of the trial judge to reconsider the order after it was perfected.
4. Validity of the order's settlement without notice to the appellant's attorney.
5. Limitation period for the application to set aside the dismissal.
6. Need for a fresh notice for the second appearance in the special list.
7. Conduct of the solicitors for the respondent No. 1.
8. Merits of the appeal.

Detailed Analysis:

1. Maintainability of the Appeal:
The appeal was dismissed on the ground that an order made under Section 151 of the Code of Civil Procedure is not included in the category of appealable orders. The court referenced the Supreme Court's decision in Keshardeo v. Radhakishen, which clarified that only specific orders mentioned in Section 104 and Order 43, Rule 1 are appealable. Since the appellant's application was under Section 151, the appeal was deemed non-maintainable.

2. Applicability of Order 9, Rule 4 of the Code of Civil Procedure:
The court examined whether Rule 4 of Order 9 applied, as it provides that a plaintiff may bring a fresh suit or apply to set aside a dismissal. However, Rule 3 of Order 9, which deals with cases where neither party appears, did not strictly apply because the suit was not called on for hearing but was in the special list under Chapter X Rule 35. Even if Rule 4 applied, no appeal lies against an order refusing to set aside a dismissal under Rule 4, as established in Pitambar v. Baidyanath.

3. Jurisdiction of the Trial Judge to Reconsider the Order:
The court held that the trial judge had no jurisdiction to reconsider the order after it was perfected and filed. The principle that a judge cannot alter a perfected order was supported by several cases, including Hession v. Jones and In re Suffield and Watts Ex parte Brown. The court emphasized the importance of finality in litigation, as once an order is completed, it should not be liable to review by the judge who made it.

4. Validity of the Order's Settlement Without Notice to the Appellant's Attorney:
The appellant argued that the order's settlement was invalid due to the lack of notice. However, the court found that Rule 29 of Chapter XVI gives discretion to the officer concerned to decide whether notice is necessary. Since the order was simple and did not require the presence of the parties for settlement, the absence of notice did not invalidate the settlement.

5. Limitation Period for the Application to Set Aside the Dismissal:
The application to set aside the dismissal was made on January 24, 1962, well beyond the 30-day limitation period prescribed by Article 163 of the Limitation Act, which applies to applications to set aside dismissals for default of appearance. The court held that the application was barred by limitation and that Section 5 of the Limitation Act did not apply to applications under Order 9 Rule 4 or Section 151.

6. Need for a Fresh Notice for the Second Appearance in the Special List:
The appellant contended that a fresh notice should have been given for the second appearance in the special list. The court found that Rule 35 of Chapter X requires notice before placing a matter in the special list, which was duly served. Since the appellant's solicitor was present when the initial order was made and knew the suit would reappear, no second notice was necessary.

7. Conduct of the Solicitors for the Respondent No. 1:
The appellant criticized the conduct of the respondent's solicitors for not informing them that the suit was dismissed. The court acknowledged that while the conduct was not commendable, no duty was cast on the respondent's solicitors to inform the appellant's solicitor about the dismissal.

8. Merits of the Appeal:
The court concurred with the trial judge's view that there was clear negligence on the part of the appellant's attorney for not attending the court on August 30, 1961, and not making efforts to ascertain the status of the suit. The court also noted that the appellant would not be irretrievably prejudiced by the dismissal, as the arbitration could still proceed, and the appellant could present its case there.

Conclusion:
The appeal was dismissed, and each party was ordered to bear its own costs. The judgment emphasized the importance of finality in litigation, adherence to procedural rules, and the limitations on a judge's power to reconsider perfected orders.