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Mulachand Samana Vs. Imus Miya Shaikh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 508 of 1955
Judge
Reported inAIR1956Bom245
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 9, Rule 13 - Order 17, Rule 1(2) - Order 41, Rule 23
AppellantMulachand Samana
Respondentimus Miya Shaikh and ors.
Advocates:Y.V. Chandrachud, Adv.
Excerpt:
.....to appeal against the order could not be put against the defendant, since the order was not appealable ; b) it was adjudged that, the order of the court, striking off the defence for failure of the party to deposit the adjournment costs was an unduly severe order - it was also stated that the courts should be slow in adopting such a severe course of conduct - - 2. if the learned judge was satisfied that there was reasonable cause for setting aside the ex parte decree, in the interests of justice he should have set aside the order striking off the defence. there would be no appeal against an order passed in the exercise of inherent jurisdiction under section 151 and the failure of the party to make an appeal cannot, therefore, be put against nim. in my judgment, striking off the..........parte decree was set aside and the suit was restored to file. the petitioner then applied to the learned judge praying that the order striking off the defence should, be set aside and the learned judge has refused to set aside that order. in the result, the suit has been restored to file, but the defence still stands struck off. it is this order which, has given rise to the present revisional application.2. if the learned judge was satisfied that there was reasonable cause for setting aside the ex parte decree, in the interests of justice he should have set aside the order striking off the defence. i understand that the amount of rs. 10/- has been deposited by the petitioner on 7-7-1954. that was before the present application for setting aside the order striking off the defence was.....
Judgment:
ORDER

1. The order against which the present revisional application has been made must, in my opinion, be set aside. The facts giving rise to this order are indeed very unusual. A suit was pending against the petitioner and when, it was set down for hearing on 9-10-1953 the petitioner asked for adjournment. Adjournment was granted on condition that the petitioner should deposit Rs. 10/- before the next date of hearing.

The next date of hearing was 20-10-1953. The petitioner did not deposit the amount as directed and in consequence his defence was ordered to be struck off. Thereafter, on 30-10-1953, an ex parte decree was passed. The petitioner then applied (Misc. Appln. No. 22 Of 1953) for setting aside the ex parte decree and restoring the suit to file.

On 21-6-1954 the ex parte decree was set aside and the suit was restored to file. The petitioner then applied to the learned Judge praying that the order striking off the defence should, be set aside and the learned Judge has refused to set aside that order. In the result, the suit has been restored to file, but the defence still stands struck off. It is this order which, has given rise to the present revisional application.

2. If the learned Judge was satisfied that there was reasonable cause for setting aside the ex parte decree, in the interests of justice he should have set aside the order striking off the defence. I understand that the amount of Rs. 10/- has been deposited by the petitioner on 7-7-1954. That was before the present application for setting aside the order striking off the defence was disposed of.

It may be that the order directing the payment of Rs. 10/- had not been complied with by the petitioner and the petitioner cannot make a grievance of the fact that the learned Judge took a serious view about his omission to comply with his own order. But when the learned Judge was restoring the suit to file, he should have realised that the restoration would be illusory unless the petitioner was allowed to raise his defences.

The only substantial reason which the learned Judge has given for not setting aside the order in question Is that this order was made under Section 151, Civil P. C. and that Section 151 cannot be invoked to set aside that order. The learned Judge thought that an appeal or a revisional application was competent against this order. This view is entirely erroneous.

There would be no appeal against an order passed in the exercise of inherent jurisdiction under Section 151 and the failure of the party to make an appeal cannot, therefore, be put against nim. Considerations of elementary justice and fairness required that, if the suit was going to be restored and tried afresh on the merits, the petitioner should have been given a chance to raise his defences. In my judgment, striking off the de-fence for failure of the party to deposit Rs. 10/-as ordered itself was an unduly severe order. Courts should be very slow in adopting such a severe course of conduct as striking off the defence of a party.

An adjournment was granted at the instance of the petitioner and no doubt the learned Judge was entitled to put him on such terms as he J thought fit to impose. But the consequence of such terms should generally not be the striking off of the defence of parties, and if the defence has been struck off the order should at least have been received (sic) when the learned Judge himself decided to restore the suit.

In the circumstances I think the order passed by the learned Judge refusing to set aside his earlier order striking off the defence must be set aside. I accordingly direct that the order in question should be set aside and the defendant should be allowed to raise his defences to the action brought against him by the plaintiff. Since the suit has been ordered to be restored, the defences to be raised by the petitioner should be taken into account, proper issues should be framed and the suit should be disposed of according to law.

3. The application accordingly succeeds and the rule is made absolute. There will be no order as to costs.

4. Rule made absolute.


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