1. This revision application has been filed by the defendants against the order dated 26th August, 1971 made by the learned Joint Civil Judge, Senior Division, Thana, refusing to hear them to show cause against an application made by the plaintiffs for an injunction restraining the defendants from prosecuting an application for restitution under Section 144, C. P. C. in a previous suit filed by the same plaintiffs against the same defendants. It will be necessary to state some of the facts in order to be able to appreciate how the present order came to be passed.
2. The defendants were in occupation of certain premises belonging to the plaintiffs. The contention of the plaintiffs was that the defendants were licensees whereas the contention of the defendants was that they were tenants. The plaintiffs further contended that the defendants had committed breach of the terms of the agreement of leave and licence, that the licence had been terminated and that the plaintiffs had become entitled to recover possession from the defendants of the said premises and the plaintiffs were also entitled to recover arrears of licence fees from the defendants.
3. In 1965 the plaintiffs filed against the defendants in the Court of the learned Civil Judge Senior Division, Thana, Special Civil Suit No. 26 of 1965 praying for possession of the said premises and for recovery of arrears of licence fees and mesne profits. This suit came to be decreed ex parte on 25th August, 1967. The decree was for possession of the said premises and also for recovery of a sum of money as arrears of licence fees and mesne profits. On 23rd September, 1967 the defendants applied tot he Court for setting aside the ex parte decree. This application being Miscellaneous Application No. 120 of 1967 was dismissed by the Court. The defendants appealed against the order of the dismissal of the said application to this Court and on 16th September, 1969 the said appeal, being A. O. No. 252 of 1969, was allowed, the order of dismissal of the application was set aside and the ex parte decree was also set aside and the ex parte decree was also set aside. The suit was restored. It appears that during the pendency of the appeal in this Court the plaintiffs executed the decree for possession as well as for recovery of money.
4. On 7th October, 1970 the plaintiffs filed a Purshis in the trial Court stating that they did not want to prosecute Special Civil Suit No. 26 of 1965. Thereupon the said suit was dismissed.
5. On 6th November, 1970 the defendants filed Miscellaneous Application No. 140 of 1970 in the trial Court for restitution under Section 144, C. P. C. on the ground that the decree in the Special Civil Suit No. 26 of 1965 had been set aside by this Court in appeal and therefore possession of premises and money recovered by the plaintiffs by execution proceedings ought to be restored to the defendants. The said application was filed in Special Civil Suit No. 26 of 1965. During the pendency of the said application on 6th April, 1971 the plaintiffs in Special Civil Suit No. 26 of 1965 filed a fresh suit, viz. Regular Civil Suit No. 115 of 1971 from which the present revision application arises for a declaration that the dismissal of Special Civil Suit No. 26 of 1965 and the Purshis dated 7th October, 1970 for withdrawing the said Special Civil Suit had been brought about by fraud and for setting aside the dismissal of the said suit. In the said suit the plaintiffs filed application Ex. 5 for an injunction restraining the defendants from prosecuting their application for restitution, viz. Miscellaneous Application No. 140 of 1970.
6. On 26th August, 1971 when the plaintiffs' application Ex. 5 came up for hearing the defendants were informed that somehow or the other on 23rd June, 1971 an order had been passed on Ex. 5 in the following words. viz. 'Heard the Pleaders.' Further proceedings of Miscellaneous Application No. 140 of 1970 be kept pending on the decision of Regular Suit No. 115 of 1971.' The defendants complained that this order was ex parte and passed by mistake and prayed that the same be vacated. But the Court passed an order dated 26th August, 1971 refusing to hear them and stating that the Court had become functus officio and therefore no fresh order could be passed and therefore there was no purpose in hearing the defendants. It is against the said order that the present revision application has been filed.
7. The respondents have not appeared. It is clear that the order dated 23rd June, 1971 has been passed by the learned trial Judge without hearing the defendants and also by mistake. A certified copy of the diary has been produced before me on behalf of the defendants. The entry dated 23rd June, 1971 reads 'Before the Court today pleaders are present. Written statement filed by opponent is read and recorded. Proceedings stayed as per order on Ex. 5 of Regular Suit No. 115 of 1971 to 3-7-1971.' It appears from the above order that on the one hand the learned Judge states that an order has been made on Ex. 5, on the other hand the diary states that the matter is adjourned to 3rd July, 1971. The entry dated 3rd July, 1971 is in the same terms and shows adjournment to 8th July, 1971. Thereafter there are four entries dated 8th July, 1971, 6th August 1971 and 11th August, 1971 which state that on all these four dates the parties or the pleaders were present and the plaintiffs' application Ex. 5 along with the suit itself had been adjourned. The entry dated 11th August, 1971 shows that the matter had been adjourned to 19th August, 1971. The entry dated 19th August, 1971 records 'Arguments heard. Adjourned for order to 26-8-71'. The last entry dated 26th August, 1971 records 'Adjourned for hearing along with R. S. No. 115 of 1971 to 28-9-71.' The separate order which is the subject-matter of the present revision application also appears to have been passed on 26th August, 1971.
8. It is obvious that Miscellaneous Application No. 140 of 1970 could not have been disposed of on 23rd June, 1971 by an order on Ex. 5 if on four subsequent dates the record shows that the hearing of it had been adjourned from time to time. On 19th August, 1971 arguments are heard (I assume these arguments were on the question whether the defendants could be heard to show cause against the injunction application or whether the Court was functus officio) finally on 26th August, 1971 the defendants are told that an order had already been made on 23rd June, 1971 and the Court had become functus officio.
9. The order dated 26th August, 1971 does not explain how the above situation arose. The order admits that the order dated 23 June 1971 was an ex parte order. The order dated 26th August, 1971 further records that as a final order on Ex. 5 had already been made it was not open for the Court to era the matter. The order also further records that although the plaintiffs had asked for an injunction the Court had granted a stay. The final conclusion arrived at by the learned Judge and recorded in the said order is that 'Hence I told that it is not open for me to rehear the matter again. The order already passed on Ex. 5 therefore stands'. The learned Judge obviously took the view that the order dated 23rd June, 1971 was firstly made as a result of a mistake on the part of the Court and secondly was ex parte. In this view of the matter, the learned trial Judge ought to have vacated the order dated 23rd June, 1971 and ought to have heard the defendants and made a final order. In my opinion, the learned trial Judge was not as helpless in the matter as he seems to have thought.
10. The order dated 26th August, 1971 made by the learned Judge was an interlocutory order made on an application for interim injunction. The learned Judge is himself unable to explain in the order dated 26th August, 1971 as to how he came to make an order for stay of Miscellaneous Application No. 140 of 1970 instead of granting the injunction prayed for by the plaintiffs. We regard to injunctions. Order 39, Rule 4 makes an express provision that an order for injunction may be discharged or varied or set aside by court on application made thereto by any party dissatisfied with such order. It is true that the order passed by the learned trial Judge was not an order for injunction and therefore the provisions of Rule 4 may not strictly apply. But all interlocutory orders are liable to be quashed in proper cases. It has been held by Rangnekar. J. in the case of Yusuf I. A. Lalji v. Abdullabhoy Lalji, 32 BomLR 667 : Air 1930 Bom 362 that the Court has jurisdiction to set aside even an order made by consent which is not in the nature of a final order or judgment but which is merely an interlocutory order in the suit provided proper grounds are made out. The order can be set aside by an application made in the said suit. I am in full agreement with the view taken by Rangnekar, J. I am further of the view that there can be no better ground for setting aside the interlocutory order in the present case than the two facts, firstly, that the order dated 23rd June, 1971 which is sought to be set aside has been passed as a result of a mistake on the part of the Court and secondly that the order is ex parte.
11. I can do no better than site the words of Hidayatullah, J. (as he then was) in the case of Jag Singh v. Brij Lal, : 2SCR145 -
'There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim : Actus curiae neminem gravabit.'
12. The order sought to be set aside has been passed obviously by mistake of the Court. Such order cannot be allowed to harm the defendants. There is no doubt that the order has deprived the defendants of their right of being heard and showing cause against the application for injunction. This is a violation of rules of natural justice and a violation of a fundamental right. The order must therefore be set aside the ought to have been set aside by the learned trial Judge.
13. The second ground on which the learned trial Judge ought to have set aside the order dated 23rd June, 1971 was that the said order was ex parte. In my opinion, every Court whether a Court of Record or not has inherent jurisdiction to vacate an ex parte order if it is necessary for the ends of justice or to prevent abuse of the process of the Court. In the case of Satish Churn Law v. H. K. Ganguly, : AIR1962SC806 the question was whether an ex parte order for examination of a director of the company under Section 477 of the Companies Act, 1956 was liable to be set aside on the application of the person affected. The Supreme Court held that such order could be set aside for two reasons. One of the reasons was that such application for an order for examination could under Rule 243 of the Companies (Court) Rules, 1959, be made ex parte and the order which is made ex parte is not final and it is always open to a person summoned to apply for vacating or modifying the order on the ground that it has been obtained without placing all the requisite materials before the Court or by mis-statement of facts or on other adequate grounds. The second ground given by the Supreme Court for setting aside the ex parte order was that
'Rule 9 of the Companies (Court) Rules preserves to the Court its inherent powers to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, and a direction to vacate an ex parte order previously made, is in a proper case within the Court's inherent jurisdiction.'
The Supreme Court held that Rule 9 of the Companies (Court) Rules preserved the inherent powers of the Court and one such inherent power of the Court was to set aside ex parte orders where the ends of justice required or when it became necessary to prevent abuse of the process of the Court. This inherent power is not a power conferred by Rule 9 of the Companies (Court) Rules, but is inherent in the Court which is merely preserved by the Rule. I have no doubt that this inherent power applied by the Supreme Court to an order for examination of a person under Section 477 of the Companies Act, 1956 only, but is of general application and ex parte order made by a Court can be set aside by the Court if it becomes necessary for the ends of justice or to prevent abuse of the process of the Court.
14. I am of the view that the learned trial Judge has erroneously failed to exercise jurisdiction vested in him by refusing to set aside the order dated 23rd June, 1971 and by refusing to hear the defendants before making final interlocutory order. I therefore set aside the order dated 26th August, 1971 as well as the order dated 23rd June, 1971 staying further proceedings in Miscellaneous Application No. 140 of 1970 in Special Civil Suit No. 26 of 1965. I further direct that the learned trial Judge will hear and dispose of the said Miscellaneous Application on merits. Rule is made absolute with costs.
15. Revision application allowed.