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Parmarath Gir Vs. Krishna Dayal Gir and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All517; 145Ind.Cas.607
AppellantParmarath Gir
RespondentKrishna Dayal Gir and ors.
Excerpt:
- - apart from the inherent power of the court, we are satisfied that the plaintiff's application for restoration fulfilled all the requirements of order 47, rule 1, c......but under order 10, rule 4, c.p.c., and therefore the court had no jurisdiction to restore it. the learned subordinate judge recorded a definite finding that he meant to dismiss the suit under order 9, rule 8, c.p.c., and held that he had power to restore it under order 9, rule 9. accordingly he passed an order directing that the suit be restored under its original number on condition that the plaintiff paid a sum of rs. 445, as costs to the defendants. dissatisfied with the order of the learned subordinate judge restoring the suit the present applicant has moved this court in revision.2. his learned advocate now argues that the order of the court dismissing the suit for want of prosecution should be deemed to be one under order 9, rule 12, c.p.c., and therefore the court had no power to.....
Judgment:

Niamatullah, J.

1. This is an application for revision directed against an order of the learned Subordinate Judge of Benares, cancelling a previous order of his own by which he had dismissed the plaintiff's suit for his non-appearance in person. The applicant before us is one of the defendants in a mortgage suit brought by the mortgagee for sale of the mortgaged property on foot of a mortgage executed by defendants first set. Defendants second set are subsequent transferees. Defendants third set are certain persons who claim interest in the mortgaged property alleged by them to be waqf. The suit was fixed for some miscellaneous proceedings to be taken on 22nd November 1932. The Court directed on that date that the parties should admit and deny each other's documents on 6th December 1932. The order does not expressly state that the admission and denial of documents should be made by the parties themselves. On 6th December 1932, the Court recorded a definite order that the parties should attend in person on 22nd December 1932, to admit and deny each other's document The plaintiff and the defendants first set did not appear on 22nd December 1932, though the advocate of the former was in attendance. The Court dismissed the suit for want of prosecution. There is no doubt that the want of prosecution on which the order of dismissal is based was the absence of the plaintiff for the purpose of admitting and denying the documents of the opposite party. Subsequently the plaintiff made an application for restoration of the suit, alleging that he did not appear because a compromise had been arrived at between him and the mortgagor. His application purported to be one under Order 9, Rule 9, C.P.C. The present applicant (one of the defendants third set) objected to the suit being restored. One of the grounds on which he resisted the application for restoration was that the order of 22nd December 1932, was not one under Order 9, Rule 8, but under Order 10, Rule 4, C.P.C., and therefore the Court had no jurisdiction to restore it. The learned Subordinate Judge recorded a definite finding that he meant to dismiss the suit under Order 9, Rule 8, C.P.C., and held that he had power to restore it under Order 9, Rule 9. Accordingly he passed an order directing that the suit be restored under its original number on condition that the plaintiff paid a sum of Rs. 445, as costs to the defendants. Dissatisfied with the order of the learned Subordinate Judge restoring the suit the present applicant has moved this Court in revision.

2. His learned advocate now argues that the order of the Court dismissing the suit for want of prosecution should be deemed to be one under Order 9, Rule 12, C.P.C., and therefore the Court had no power to restore the suit except on sufficient cause being shown to the satisfaction of that Court. It is pointed out that the order of the Court restoring the suit does not contain any finding on the question whether there was sufficient cause for the nonappearance of the plaintiff on 22nd December 1932. It is true that the learned Subordinate Judge has not discussed the question as to whether the plaintiff was prevented by any sufficient cause from appearing on 22nd December 1932, but we are inclined to think that there is no mention of this aspect of the case in the order of the learned Subordinate Judge because it was not raised by the defendants. It seems to have been tacitly conceded that if the Court had power to restore the suit, circumstances existed which justified its restoration. The only ground on which the plaintiff's application for restoration seems to have been contested was that the Court had no jurisdiction to proceed under any of the rules of Order 9, C.P.C., the suit having been dismissed under Order 10, Rule 4. The learned Subordinate Judge has written an elaborate order discussing whether his order of 22nd December 1932, should be considered to be otherwise than an order under Order 9, Rule 8, C.P.C. He arrived at the conclusion that it was an order under that rule and as no other point was argued he restored the suit without recording a funding on the question whether there was sufficient cause for plaintiff's non-appearance. Even assuming that the defendants raised this question in the Court below, and by an oversight the learned Subordinate Judge did not apply his mind to it, we are of the opinion that, in the circumstances of the case, it was not necessary for the learned Subordinate Judge to investigate that question.

3. The nature of the order of 22nd December 1932, has been misapprehended by the Subordinate Judge and both the parties. To ascertain its real character we must consider the previous orders of 22nd November 1932, and 6th December 1932. For some reason which is not apparent on the record, the Court considered that it would be more convenient if the parties appeared in person to admit and deny each other's documents. The pleaders of the parties were not asked to admit or deny the documents. No occasion, therefore, arose for their (the pleaders') refusal or expression of inability to do so. The Court assumed that it had power to direct, without assigning any reason, the personal attendance of the parties In our opinion it was wrong in making that assumption Ordinarily a party's pleader or recognized agent can do everything which a party himself is required to do. Order 10, Rule 4(1) C.P.C., provides:

Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.

4. It will be observed that the power of the Court under this rule is not an unlimited one. It is only where the party's pleader or recognized agent refuses or is unable to answer a material question that the Court con direct the personal attendance of the party himsesf. Assuming that admission and denial of documents amounts to a 'material question relating to the suit', the Court should have called upon the pleaders of the parties to admit and deny each other's documents and if they refused or expressed their inability to do so, then only the Court could direct the personal attendance of the parties for that purpose. As already stated the pleaders of the parties never refused or expressed their inability to admit and deny each other's documents. No case therefore existed for the exercise by the Court of its power under Order 10, Rule 4, C.P.C. In this view the Court's order of 6th December 1932, in pursuance of which the plaintiff was expected to be present on 22nd December 1932, was to say the least of it an irregular order. On 22nd December 1932, the Court dismissed the suit, but subsequently on an application for restoration being made restored it. In doing so it merely revoked an erroneous order passed by itself. The order of 6th December 1932, requiring the personal appearance of the plaintiff, was not a correct order, and that of 22nd. December 1932, dismissing the suit, was likewise not justified For the revocation of an erroneous order no sufficient cause other than the irregularity of the order itself need be considered, and the Court has inherent power to rectify its own errors inadvertently committed. We have no doubt that it was by inadvertence that the learned Subordinate Judge directed the personal appearance of the parties and dismissed the suit for non-appearance of the plaintiff. Apart from the inherent power of the Court, we are satisfied that the plaintiff's application for restoration fulfilled all the requirements of Order 47, Rule 1, C.PC., and the Court had ample power to review its order of 22nd December 1932, and it did so. Though the lower Court purported to act under Order 9, Rule 9, which did not apply, it could have passed the same order acting under Section 151 and Order 47, Rule 1, C.P.C. In sub-stance the order is correct. This revision has no force, and is dismissed with costs. The record shall be returned without delay.


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