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Ram Yagya and anr. Vs. Jagannath Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 21 of 1960
Judge
Reported inAIR1965All64
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 41, Rule 19; Limitation Act - Schedule - Article 168
AppellantRam Yagya and anr.
RespondentJagannath Prasad and ors.
Appellant AdvocateGopi Nath and ;K.B. Mathur, Advs.
Respondent AdvocateN.D. Ojha, Adv.
DispositionAppeal dismissed
Excerpt:
.....case falls under the order 41 rule 19 - held, under the circumstances it is not possible to invoke inherent powers of court under section 151. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in..........such as order xli rule 19 in the present ease would not bar the court from exercising its inherent jurisdiction under section 151 of the c. p. c. provided of course there was no conflict between the provisions of the c. p. c. and the exercise of such inherent jurisdiction and that the bar of limitation, in an extraordinary case, would justify the court in overcoming it by invoking its inherent jurisdiction.4. the first question which arises is whether the special provisions of order xli rule 19 would bar the exercise of inherent jurisdiction under section 151 of the c. p. c. the aforesaid supreme court decision : air1962sc527 on which reliance was strongly placed by mr. gopi nath for the appellant merely laid down, after having noticed the conflict between the various high.....
Judgment:

S.C. Manchanda, J.

1. This is First Appeal from the Order of the learned Civil Judge, Allahabad dated the 4th December 1959 dismissing the application filed under Order XLI Rule 19 read with Section 151 of the C. P. C. thereby refusing to restore the appeal of the defendant-petitioner dismissed for default.

2. The counsel for the appellant was admittedly busy in arguing a case in another court when notice of the appeal was served on him. The counsel totally forgot to note down the date in his diary and thereafter the information which had been conveyed to him completely slipped out of his memory. Consequently, neither he nor the appellant appeared on the date of the hearing, and the respondent having appeared the appeal was dismissed for default of the appellant under Order XLI Rule 17 of the C. P. C. After the expiry of 30 days, which is the period of limitation prescribed under Article 168 of the Indian Limitation Act for readmission of an appeal dismissed for default, the present application was moved invoking not only Order XLI Rule 19 but also the provisions of Section 151 of the C. P. C. The learned Civil Judge believed the affidavit of the counsel wherein it had been stated that he was busy arguing another case at the time when the notice was served. He was also satisfied that there was sufficient cause but as the application was made beyond the period of limitation provided under Article 168 of the Limitation Act and relying on the decision of the Oudh Chief Court in Firm Anant Ram Mangat Ram v. Firm Ram Swarup Sukhdeo Prasad held that even if it be assumed that such an application can lie under Section 151 of the C. P. C. then too such an application would stand to be dismissed as being time barred.

3. Mr. Gopi Nath, learned counsel for the appellant has strenuously contended that the said decision of the Avadh Chief Court must be taken to have been overruled by the decision of the Supreme Court in the ease of Manohar Lal Chopra v. R.B. Rao : AIR1962SC527 . It was further contended that special provisions such as Order XLI Rule 19 in the present ease would not bar the court from exercising its inherent jurisdiction under Section 151 of the C. P. C. provided of course there was no conflict between the provisions of the C. P. C. and the exercise of such inherent jurisdiction and that the bar of limitation, in an extraordinary case, would justify the court in overcoming it by invoking its inherent jurisdiction.

4. The first question which arises is whether the special provisions of Order XLI Rule 19 would bar the exercise of inherent jurisdiction under Section 151 of the C. P. C. The aforesaid Supreme Court decision : AIR1962SC527 on which reliance was strongly placed by Mr. Gopi Nath for the appellant merely laid down, after having noticed the conflict between the various High Courts, that inherent powers can be exercised notwithstanding the existence of specific provisions in the C. P. C. for the issue of interim injunctions. Their Lordships observed:

'We are of opinion that the latter view is correct and that the courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order XXXIX C. P. C........... It is well settled that the provisions of the Code are not exhaustive for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued ordinarily the court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule........No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.'

5. Then their Lordships went on to explain an earlier ruling of theirs, in Padam Sen v. State of U. P., 0065/1960 : 1961CriLJ322 and observed that what was laid clown in that ruling was only this that the inherent powers were not in any way controlled by the provisions of the C. P. C. and that nothing in the C. P. C. should be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. It is not possible to give the dicta of their Lordships of the Supreme Court the meaning which the learned counsel for the appellant wants them to be given. If there is a clear provision in the C. P. C. itself and a particular case falls fairly and squarely within such provision then it will not be possible to invoke the inherent powers under Section 151 merely to get over the bar of limitation. Order XLI Rule 19 is a provision within which the present case clearly fell, inasmuch as it was an application for the setting aside of an order dismissing an appeal for default, on the ground of sufficient cause. Sufficient cause was found to exist but the application itself was found to have been filed beyond the period of limitation. In such circumstances can it be said that there is no provision in the C. P. C. to remedy the wrong and therefore in the interests of justice resort must be had to Section 151 of the C. P. C. it is undoubtedly a hard case but it is impossible to say that no remedy is provided by the C. P. C. itself when the Legislature in its wisdom has provided a period of limitation for such an application there can be no justification whatsoever for pressing into service the inherent powers of the Court in order to get over the bar of limitation.

6. Reliance was placed on a decision of the Judicial Committee in the case of Debi Buksh Singh v. Habib Shah, ILR 35 All 331 (PC) where it was held that a suit dismissed for default on the ground of non-appearance of the plaintiff when in fact he was dead would not be covered by the provisions of Order IX Rules 8 and 9 and in such circumstances the provisions of Section 151 of the C. P. C. could justifiably be invoked and no question of period of limitation would arise as it would not be an application under any specific provisions of the C. P. C. It is no doubt true in that case that though the trial court had allowed the restoration of the suit, the Judicial Commissioner on appeal had rejected it on the ground that the application purporting to be under Order 22 Rules 3 and 9 was beyond the period of limitation. Their Lordships of the Judicial Committee however, as already observed held that as the suit had been dismissed not for default but on account of the death of the plaintiff the remedy would lie by invoking the provisions of Section 151 of the C. P. C. The case is clearly distinguishable and does not lend support to the contention of Mr. Gopi Nath that the bar of limitation provided under Article 168 of the Limitation Act for restoration of an appeal dismissed for default can be got over by invoking the inherent jurisdiction of the Court.

7. The Statute of limitation has often been described as a statute of repose, peace and justice for the reason that the law of limitation is founded on the most salutary principle of general and public policy for the ends of justice ordinarily can never require that such a statute be by-passed by invoking the inherent jurisdiction of the court.

8. In Ram Swarup v. Gaya Prasad : AIR1925All610 a contention was raised that apart from Order IX Rule 13 the Court had inherent jurisdiction to set aside an ex parte decree. It was held relying on an earlier decision of this Court in the case of Kallu v. Nadir Baksh AIR 1922 All 441 (2) that apart from Order IX Rule 13 a court has no jurisdiction to set aside a decree. A Full Bench of the Madras High Court in the case of Gadi Nedavani v. Narayana Reddi AIR 1920 Mad 640 (FB) also held that the Court had no power apart from the provisions of Order IX Rule 13 to set aside an ex parte decree made by itself. It was pointed out by Seshagiri Aiyar J. that Section 151 of the C. P. C. must be construed not as empowering a court to exercise powers which it never possessed but as preserving to it those powers which it has been in the habit of exercising and which by oversight or by failure to specify have not been particularised in the Statute. These rulings lend support to the view I have taken that Section 151 of the C. P. C. cannot be invoked to get over the bar of limitation.

9. The present case fell to be dealt with clearly within the provisions of Order XLI Rule 19 and sufficient cause was established, but merely because the statute of limitation stood in the way it is not permissible to invoke the inherent jurisdiction of this Court in order to get over the bar of limitation.

10. For these reasons I would dismiss the appeal but leave the parties to bear their own costs.


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