Skip to content


Raj Kumar Vs. Ved Roop Narain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberCivil Revn. No. 213 of 1948
Judge
Reported inAIR1950All293
ActsCode of Civil Procedure (CPC) , 1908 - Sections 141 and 151 - Order 9, Rule 9 - Order 21, Rule 97
AppellantRaj Kumar
RespondentVed Roop Narain
Appellant AdvocateLachmi Narain Gupta, ; S.B.L. Gaur, ; J. Saroop and ; H.N. Seth, Advs.
Respondent AdvocateGayendra Kumar, Adv.
DispositionApplication dismissed
Excerpt:
- - what the learned judges meant when they observed that 'a party has no right to invoke the inherent jurisdiction of the court' clearly meant to convey the idea that the inherent jurisdiction of the court is a discretionary relief and nobody can claim it as a matter of right when another remedy is open to him. hence, where court had erroneously dismissed the application of auction-purchaser under order xxi, rule 97 so early in the day when he was late by only 15 minutes, the court has perfect jurisdiction under section 151, to restore the application......made an application for restoration of his objection, under sections 141, 151 and order 9. rule 9, civil p. c., alleging that on the date of hearing he was sitting in the court compound in front of the court room but as he was hard of hearing, he did not hear his case being called. the decree-holder objected to the application being allowed on the ground that none of the sections under which the application was made applied. he did not challenge the fact that the objector was hard of hearing. the learned munsif held that although order 9, rule 9, civil p. c. did not apply, he could restore an objection under his inherent powers. he, therefore, restored the objection on payment of rs. 8 as costs.2. in this revision application the learned counsel has urged that the court below had.....
Judgment:
ORDER

Agarwala, J.

1. This is a decree-holder's application in revision against an order of the learned Munsif of Moradabad allowing an application for the restoration of an objection under Order 21, Rule 97, Civil P. C. The objection was dismissed on the date of hearing for want of prosecution. The objector made an application for restoration of his objection, under Sections 141, 151 and Order 9. Rule 9, Civil P. C., alleging that on the date of hearing he was sitting in the court compound in front of the court room but as he was hard of hearing, he did not hear his case being called. The decree-holder objected to the application being allowed on the ground that none of the sections under which the application was made applied. He did not challenge the fact that the objector was hard of hearing. The learned Munsif held that although Order 9, Rule 9, Civil P. C. did not apply, he could restore an objection under his inherent powers. He, therefore, restored the objection on payment of Rs. 8 as costs.

2. In this revision application the learned counsel has urged that the Court below had no jurisdiction to restore the objection under its inherent powers. In support of his contention he has relied upon Alagasundaram Pillai v. Pichuvier, A. I. R. (16) 1929 Mad. 757 : (52 Mad. 899 F. B.); Sukhomoy Biswas v. Asia Khatun A. I. R. (21) 1931 Cal. 653 : (152 I. C. 24) and Mt. Rahmat Bibi v. Chandu Lal : AIR1939All497 . In Alagasundaram Pillai v. Pichuvier A. I. R. (16) 1929 Mad. 757 : (52 Mad. 899 F. B.), it was held that proceedings under Order 21, Rule 97 or 100, Civil P. C. were part of execution proceedings and as such Order 9, read with Section 141, Civil P. C., did not apply. It was further held that the Court had no inherent power under Section 151, Civil P.C., to set aside an order passed under Order 21, Rule 97, Civil P. C., as the applicant had another remedy by which he could have the order set aside, namely, the institution of a regular suit under the provisions of Order 21, Rule 103, Civil P. C. In Sukhomoy Biswas v. Asia Khatun : AIR1934Cal653 , it was held that the inherent power of the Court under Section 151, Civil P. C., could be invoked only when there was no remedy open to the aggrieved party and consequently when an objection under Section 21, Rule 100, Civil P. C., was dismissed, it could not be restored. In Mt. Rahmat Bibi v. Chandu Lal : AIR1939All497 , a Division Bench of this Court expressed the opinion:

'Section 151, Civil P. C., does not confer an unlimited jurisdiction on the Courts and that when another remedy is open to a party, that party has no tight to invoke the inherent jurisdiction of the Court.'

The facts of that case were that there was an auction sale of a house standing on nazul laud. After the auction sale the decree-holder auction-purchaser tried to get a transfer of the nazul land from the nazul authorities but could not do so and was directed to remove the materials of the house. He thereupon filed an application under Section 161, Civil P. C., praying that the Court may set aside the sale. The lower Court granted that prayer under Section 151, Civil P. C., and set aside the sale. A Bench of this Court held that the decree permitted the sale of the materials only and the decree-holder had purchased the materials with his eyes open. He had no right to apply for the sale being set aside. It is obvious that the application under Section 151, Civil P. C., could have been dismissed even on merits. What the learned Judges meant when they observed that 'a party has no right to invoke the inherent jurisdiction of the Court' clearly meant to convey the idea that the inherent jurisdiction of the Court is a discretionary relief and nobody can claim it as a matter of right when another remedy is open to him. The Bench did not lay down that in no circumstances can a Court give relief to a party in the exercise of its inherent powers when there is another remedy open to him. It may be that the other remedy is so expensive or prolonged that a party may be deprived of his rights if he were not granted relief by the Court under its inherent powers in the same proceedings pending before it. In Mohomed Hanif v. Ali Raza : AIR1933All783 , a Full Bench of this Court (Sulaiman C. J., Mukherji and King JJ.) held that although Order 9, Civil P. C., could not be made applicable to execution proceedings with the aid of Section 141 of the Code, a previous order of the Court made in the execution proceedings could be set aside by the Court in the exercise of its inherent jurisdiction under the provisions of Section 151, Civil P. C.

3. In Kallan v. Nanhe : AIR1930All701 , Sen J. held that the Court had beyond all doubt an inherent jurisdiction to get aside its former order striking out the defence and passing an ex parte decree against the defendant, and that the mere fact that the defendant had a right to appeal under Order 53, Rule 1, Clause (f), Civil P. C., from the order striking off his defence did not preclude the Court below from exercising its inherent jurisdiction in setting aside an exparte decree which had been wrongly or illegally passed.

4. In Badri Prasad v. Ambika Pershad, A.I.R. (28) 1941 oudh 91: (16 Luck. 294), Ghulam Husan J. observed:

'It is not correct to say that where an alternative remedy is provided, the Court is precluded from exercising its inherent jurisdiction under Section 151. There is absolutely no reason for circumscribing the powers of the Court in cases where the Court is moved to correct its own mistake and wants to afford redress to the party who has been made to suffer for such mistake. Hence, where Court had erroneously dismissed the application of auction-purchaser under Order XXI, Rule 97 so early in the day when he was late by only 15 minutes, the Court has perfect jurisdiction under Section 151, to restore the application.'

5. In Chander Sekhar v. Shankar A. I. R. (29) 1942 Oudh 343 : (17 Luck. 673), it was held that

'the rule that a Court should not make use of the provisions of Section 151, where another remedy is available, is not of invariable applicability.'

6. In Suryarao Bahadur v. Chalamayya : AIR1947Mad339 , it was held that the mere fact that a separate remedy by way of a separate suit is open to a party is no justification for depriving a Court of its inherent jurisdiction to pass appropriate orders reversing, where the ends of justice so require, its own wrong order.

7. I am of the opinion that the Court's jurisdiction to grant relief under its inherent powers may be exercised even though there may be another remedy open to the aggrieved party. This power will be readily exercised where the mistake is of the Court itself; it would not be so readily exercised where the other party was negligent in the prosecution of his case or did not avail himself of another remedy which was easily available and did not involve greater expense or delay. In the present case no blame attached to the opposite party and to refuse to give him relief in the proceedings pending before the Court would amount to a denial of justice because he would be thrown back upon an expensive remedy involving great delay. I am therefore, of opinion that the Court below was right in setting aside the ex parte order and restoring the objection.

8. There is no force in this revision application. It is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //