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Ganesh Prasad Vs. Bhagelu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1925All773; 89Ind.Cas.350
AppellantGanesh Prasad
RespondentBhagelu Ram and ors.
Excerpt:
civil procedure code (act v of 1908), sections 141, 151, order ix, rulers 8, 9 - dismissal of suit for default--application for restoration, dismissal of, for default-application, whether can be restored--jurisdiction--inherent power of court. - - i would only like to add a few words with regard to the cases which have been cited before us. i fail to see why a court cannot on good cause shown, restore an application for setting aside a dismissal for default or an ex parte decree, which application itself has been dismissed for default.daniels, j.1. this is an application in revision against an order restoring an application for restoration dismissed for default. i need express no opinion as to whether a revision lies, because we consider that in any case the application fails on the merits but i may note that in sheik kallu v. nadir baksh a.i.r. 1922 all. 441 a bench of this court held that no revision lay against an order restoring the case, be-cause the order was not a final order. the suit had been dismissed for default. the plaintiffs applied to have it restored. that application was also dismissed for default. they then presented an application to the effect that they had been prevented from attending on the date fixed and asked for their restoration application to be restored. it was restored on payment of rs. 5.....
Judgment:

Daniels, J.

1. This is an application in revision against an order restoring an application for restoration dismissed for default. I need express no opinion as to whether a revision lies, because we consider that in any case the application fails on the merits but I may note that in Sheik Kallu v. Nadir Baksh A.I.R. 1922 All. 441 a Bench of this Court held that no revision lay against an order restoring the case, be-cause the order was not a final order. The suit had been dismissed for default. The plaintiffs applied to have it restored. That application was also dismissed for default. They then presented an application to the effect that they had been prevented from attending on the date fixed and asked for their restoration application to be restored. It was restored on payment of Rs. 5 costs to the opposite party. The defendant in revision contends that if such an application has boon dismissed ex-parte more than thirty days after the date of the decree, the plaintiff's are left without a remedy. He relies on the decision Pitambar Lal v. Dodee Singh A.I.R. 1924 All. 503. I notice that in the case relied on, though the learned Judges held that Order 9, Rule 9, did not apply they nevertheless refused to interfere. In Oudh I have followed the view which is also taken by the Calcutta and Punjab High Courts, that Order 9, read with Section 141, Civil P.C., can be applied to these proceedings. I may refer to the following authorities : 9 O.L.J. 627; 44 Cal. 950; and 1 Lah. 329. There may be special reasons why Order 9 should be held inapplicable to execution proceedings, but I can see none for not applying to a proceeding of this kind. The question of appeal is not to my mind an objection. If Order 9 does not apply then as Pitambar Lal v. Dodee Singh A.I.R. 1924 All. 503 and the judgment which it follows show the Courts have great difficulty in devising a suitable remedy. Section 151 provides an emergency power which it ought not to be necessary to resort to in a class of cases which are of every day occurrence as these are. But even if Order 9, Rule 9 does not apply, I am not prepared to hold that, if a party prosecuting a restoration application is genuinely prevented from appearing, he is left without a resource. To hold this might be to work great injustice. A man might, for instance, accidentally break his leg on the way to Court.

2. If the view contended for by the applicant is correct, this accident would lead to his suit remaining irrevocably dismissed. The attention of the learned Judges who decided Pitambar Lal v. Dodee Singh A.I.R. 1924 All. 503 was not directed to Section 151, Civil P.C. If there is no other remedy we think that that section will apply in a case such as this.

3. We accordingly refuse to interfere and reject this application with costs including fees on the higher scale.

Sulaiman, J.

4. I concur in the proposed order. I would only like to add a few words with regard to the cases which have been cited before us. In the case of Bipin Behari Shaha v. Abdul Barik (1916) 44 Cal. 950 the learned Judges of the Calcutta High Court considered that a second application for restoration of a case dismissed for default could be treated as au original application for setting aside the dismissal. If the decision merely meant that such an application for setting aside 'a dismissal can be filed regardless of the fact that a previous application has been dismissed, then all I that I would say is that point does not arise before us. If, however, it was intended to be laid down that an application for the restoration of an application for setting aside the dismissal docs for all purposes come under Order 9, then it would be difficult to accept that view; for that may give the parson whose application is dismissed a right of appeal under Order 43 which is not expressly provided. In the case of Chandar Sahai v. Durga Prasad A.I.R. 1924 All. 682, I have held that no such appeal lies. The Patina High Court in the case of Ramgulam Singh v. Sheo Deonarain Singh (1919) 4 P.L.J. 287 held that an application for restoration of an application under Order 9 for setting aside an ex parte decree, which had been dismissed for default, did not He under that order. That view is correct. But when the learned Judges go on to say that the only remedy open to the aggrieved party was to appeal against the original order made under Order 9 it is difficult to accept that view; for it seems to me that there would be a remedy by applying to the Court to invoke its inherent jurisdiction to set aside the dismissal of that application. Section 151, Civil P.C., was not considered by these learned Judges. I fail to see why a court cannot on good cause shown, restore an application for setting aside a dismissal for default or an ex parte decree, which application itself has been dismissed for default. In the case of Pitambar Lal v. Dodee Singh A.I.R. 1924 All. 503 it was conceded Order 9, Rule 9, was not applicable to such an application but that application was treated as being itself an original application for setting aside the ex parte decree. This last point does not arise in this case. I would not say that an application dismissed for default falls directly under Order 9 because of the provisions of Section 141; but I would say that such an application is entertainable under the inherent jurisdiction which the Court possesses under Section 151, Civil P.C. It is easy to conceive of great hardship if this view is not to be accepted; for the dismissal of the application may take place long after the period fixed for getting the dismissal of the suit set aside has expired, in which case no useful purpose would be served by treating a fresh application as being itself an original application under Order 9. I am accordingly unable to hold that the Court below had no jurisdiction in restoring the application or that there has been any material irregularity in the exercise of its jurisdiction.


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