P.K. Tare, J.
1. This revision under Section 115 of the Civil Procedure Code is by the plaintiff against the order, dated 27-4-1962, passed by Shri Devendrasingh, Additional District Judge, Alirajpur in Civil Misc. Case No. 9 of 1961 refusing to restore to file Civil Appeal No. 4 of 1961 which had been dismissed at his instance.
2. The petitioner had filed a suit for specific performance of contract of sale of a motor car and damages on 18-2-1955. That suit was dismissed on 9-12-1959. The trial Judge mentioned that the dismissal was under Order 17 Rule 3, Civil Procedure Code.
3. The petitioner on 23-12-1959 filed an application under Order 9 Rule 9, Civil Procedure Code for restoration of the suit to file. The application was dismissed by the trial Court on 24-2-1960 on the assumption that the dismissal of the suit being under Order 17 Rule 3, Civil Procedure Code Order 9, Rule 9, was not attracted and the remedy of the plaintiff was to file an appeal against the order dismissing the suit tinder Order 17 Rule 3, Civil Procedure Code.
4. The petitioner filed Civil Appeal No. 3 of 1960 against the order of the trial Judge, dated 24-2-1960 refusing to restore the suit to file. The appellate Judge by order, dated 30-12-1960 allowed the appeal and restored the suit on certain condition holding that the dismissal was under Order 17, Rule 2, Civil Procedure Code, and not under Order 17, Rule 3, Civil Procedure Code- Against that order, the present respondents filed civil Revision No. 112 of 1961. The Single Bench of this Court presided over by Naik J, by order, dated, .29-9-1961 allowed the revision on the ground that the order of dismissal was under Order 17 Rule 3, Civil Procedure Code and, therefore, Order 9, Rule 9 Civil Procedure Code was not attracted.
5. In the meantime, the petitioner had also filed Civil Appeal No. 4 of 1961 against the order, dated, 9-12-1959 dismissing the suit under Order 17 Rule 3, Civil Procedure Code, That appeal was filed by him on 1-2-1960, although it was probably registered later. The petitioner had not paid any court-fees on the memorandum of appeal. But, he paid the same on 5-3-1960. He also filed an application for extension of time under Section 5 of the Limitation Act. On 7-4-1961 he filed an application stating that as his suit had been restored to file by the appellate Order, dated 30-12-1960, he did not wish to continue the present appeal. Therefore, the appellate Judge dismissed the appeal by order, dated, 7-4-1961, and allowed refund of Court-fees. The said order is recorded on the application itself and there is no mention in the order sheets. It is to be found in the record of Misc. Civil Case No. 9 of 1961 at page 38.
6. After Civil Revision No. 112 of 1961 was allowed by this Court on 29-9-1961, the petitioner on 19-12-1961 filed an application for revival of Civil Appeal No. 4 of 1961. The learned appellate Judge by order, dated 27-4-1962 dismissed that application. Hence the present revision by the plaintiff.
7. The question involved in the present revision is whether the petitioner's appeal (Civil Appeal No. 4 of 1961) should be revived under the inherent powers of the Court in view of the circumstances stated above under which it came to be dismissed on 7-4-1961. In this connection, the learned appellate Judge relied on the case of Ram Lal Sahu v. Dina Nath AIR 1942 All 253 (1) and distinguished: the case of Mohammed Shafi v. Chedu, AIR 1930 All 100. It is, therefore, necessary to see as to what principle exactly would be applicable to such a situation.
8. In AIR 1930 All 100 (Supra) the facts were that a suit in which there were several plaintiffs was dismissed on 14-7-1927. One of the plaintiffs applied for restoration of the suit. The question was whether the dismissal of the suit was under Order 17 Rule 3, Civil Procedure Code, Two other plaintiffs filed an appeal against the decree on merits treating the dismissal to be under Order 17 Rule 3, Civil Procedure Code. While the appeal against the decree was pending, the application for restoration of the suit to file was allowed on the premises that the dismissal was under Order 17, Rule 2, Civil Procedure Code. Against the order of restoration, the defendants filed a revision in the High Court, in view of the fact that the suit had been restored to file, the plaintiffs got their appeal on merits before the first appellate Court dismissed. Ultimately the revision was allowed by the High Court holding that the dismissal was under Order 17 Rule 3, Civil Procedure Code, and net under Order 17 Rule 2, Civil Procedure Code. Therefore, Order 9 Rule 9 Civil Procedure Code was not at all attracted. After the revision was allowed by the High Court, the plaintiffs approached the first appellate Court for revival of their appeal filed against the decree. The first appellate Court allowed that application for revival and restored the appeal to file. Against that the defendants filed an appeal in the High Court, which was dismissed by a Division Bench consisting of Mukherji and King JJ. wherein it was held that the appeal could be restored by the first appellate Court under inherent powers even apart from the provisions of Order 47, Civil Procedure Code. Reliance was placed on the Privy Council case of Debi Bakhsh Singh v. Habib Shah, 40 Ind App 151 (PC). Therefore, from the facts, it would appear that the said case was almost identical with the present case.
9. In AIR 1942 All 253 (1) (supra), the facts were that an execution appeal had been dismissed by a Bench of the High Court upon the statement of the counsel for the appellant that his client had instructed him to withdraw the appeal. The appellant, Ramlal Sahu was a subsequent and the respondent, Dina Nath was a prior mortgagee of certain property. Ram Lal Sahu had instituted a suit and obtained a decree for sale of the property. In the auction sale, he himself had purchased the property. Thereafter, Dina Nath instituted a suit for enforcing his mortgage, wherein Ram Lal Sahu was impleaded as a subsequent mortgagee. Dina Nath obtained a decree for sale of the property. Ram Lal Sahu's defence was that the property in his possession in pursuance of the sale in his suit was not the same as the property mortgaged with Dina Nath. That contention of Ram Lal Sahu was negatived and a decree in favour of Dina Nath was passed. Dina Nath started execution proceedings, wherein Ram Lal Sahu again raised the question of identity of the two properties. The executing Court decided that question against him and, therefore, Ram Lal Sahu had filed an appeal in the High Court. That appeal was dismissed on the statement of the counsel. Thereafter, Ram Lal filed a regular suit for a declaration that the property subject to his mortgage was not the same as the property mortgaged with Dina Nath. That suit was dismissed by the trial Court. But the first appellate Court reversed the decree of the trial Court. However, the High Court, reversing the decree of the first appellate Court, upheld that of the trial Court. Therefore, the dismissal of the declaratory suit became final. After that Ram Lal applied to the High Court for restoration of the appeal to file. It was under those circumstances that the learned Judges of the Division Bench held that there was no case for restoration of the appeal to file. The case of AIR 1930 All 100 was cited before the Division Bench, but it was distinguished on facts.
10. Therefore, the distinguishing feature between these two cases is that in the case of AIR 1942 All 253 (1) (supra) the declaratory suit filed by Ram Lai was altogether voluntary. It was not a necessary concomitant of the remedy of filing an execution appeal. The two remedies were altogether separate. Under such circumstances, if Ramlal got his appeal dismissed voluntarily, he could not after the dismissal of his declaratory suit, request the Court to restore his execution appeal. He had made an election, which ought to be treated as final. But the position will be altogether different where the different Courts themselves are divided, on the real nature of an order passed by the trial Court, Such was exactly the case in AIR 1930 All 100 (Supra), which is identical with the present case. The question, therefore, was whether the order of dismissal was under Order 17 Rule 2, or Order 17 Rule 3, Civil Procedure Code. The trial Court and the appellate Court came to different conclusions. Ultimately, the final pronouncement made by the High Court treated the same to be under Order 17 Rule 3, Civil Procedure Code. in the meanwhile, if one of the parties got his appeal dismissed; for want of prosecution on the premises that the order was in his favour, because it was interpreted to be under Order 17 Rule 2, Civil Procedure Code, he could certainly approach that Court for reviving the appeal when finally it was held by the High Court that the order was under Order 17 Rule 3, Civil Procedure Code. To deny him the proper remedy would in many cases might result in causing injustice.
There can be no doubt that a plaintiff whose suit has been dismissed is entitled to either to apply for restoration under Order 9 Rule 9, Civil Procedure Code or to file an appeal against the decree, if the dismissal be found to be under Order 17 Rule 3, Civil Procedure Code. He cannot be denied both the remedies merely because the trial Court, the first appellate Court and the Second appellate Court take differing views on the matter. His remedy has to be ascertained with reference to the final and operative order that may be passed by the highest Court. From this point of view, there can be no doubt that he must be allowed one of the two remedies that may be available to him under the law upon the final view that may be taken by the highest appellate Court, and the order of which finally becomes operative. Therefore, the principle to be applied in such a case would be the one laid down in the case of AIR 1930 All 100 (supra),and not the case of AIR 1942 All 253 (1) (supra) wherethe party concerned had made an electionand voluntarily given up his remedy. Inthis connection, I may only mention certain cases tosupport the proposition that substantial justice should notbe denied to a party under certain circumstances.
11. In the case of Talib Ali Shah v. Piarey Lal, ILR 52 All 924 : (AIR 1930 All 644), it was subsequently found that there was a minor who was not properly represented by a duly appointed guardian. Sulaiman and King, JJ. held that after this fact was known, it was open to the Court in exercise of its inherent powers to restore the case to its original number and proceed with it after duly appointing a guardian. The restoration of the suit and the appointment of a new guardian could not be construed to be amounting to impleading a new party after the date of limitation. As such, Section 22 of the Limitation Act was not at all attracted. But what the Court would do is merely to set right an illegality when it was pointed out to it later.
12. In Balmukund v. Sheikh Sardar, ILR (1944) Nag 379 : (AIR 1944 Nag 148) Bobde J. had to consider a case where a suit was filed against two defendants who subsequently applied to the Debt Relief Court for scaling down their debt. The Debt Relief Court granted relief to the first defendant. His debt was discharged under Section 10 of the C. P. and Berar Relief of Indebtedness Act.
The plaintiff applied to the revisional Court to set aside the order of the Debt Relief Court. In the meanwhile, the suit was decreed against the second defendant alone, the District Judge exercising revisional powers against the order of the Debt Relief Court allowed the plaintiff's revision. After his revision was allowed, the plaintiff applied to the regular Court for reopening the suit and requested for passing a decree against the first defendant as well. Bobde, J. opined that under such circumstances the remedy of the plaintiff was not for review under Order 47 Rule 1, Civil Procedure Code, but to invoke the inherent powers of the Court. In this connection reliance was placed on the case of AIR 1930 All 100, ILR 52 All 924 : (AIR 1930 All 644). The Privy Council case of 40 Ind App 151 (PC) and Narayan v. Mitharam, 31 Nag LR 53 : (AIR 1934 Nag 234) decided by Pollock' A. J. C. (as he then was).
13. In Badribishal v. Mishrilal, ILR (1954) Nag. 17 : (AIR 1954 Nag 118), Deo, J. upon a difference of opinion between Mangalmurti J. and Mudholkar, J. (as he then was), held that the discretion given to a Court regarding inherent powers could be used to enlarge provisions of procedural law. In this connection, the learned Judge, relying on the case of Manorath v. Atmaram, ILR (1944) Nag 370 : (AIR 1943 Nag 335) and the case of Semabi v. Ganpatrao, ILR (1944) Nag 451 : (AIR 1944 Nag 59) agreed with the conclusion of Mangalmurti, J.
14. In Manohar Prasad Mishra v. Chandulal, 1958 MPLJ 156 : (AIR 1958 Madh-Pra 257) a Division Bench consisting of Hidayatullah C. J. (as he then was) and Choudhuri J. held that where the order of a Division Bench had been passed upon a misapprehension of facts, the appeal which was said to stand dismissed on account of the peremptory order could be restored to file under inherent powers. Therefore, there can be no doubt that inherent powers of the Court can always be used even to enlarge the procedure provided it does not specifically contravene any of the provisions of the Civil Procedure Code. The inherent powers, in my opinion, cannot be used so as to nullify and contravene specific provisions of the Civil Procedure Code. But, they can always be used to devise a procedure which may not strictly be provided by the Civil Procedure Code, but which would be permissible under the law and which does not contravene any specific provision of the Civil Procedure Code.
15. Therefore, I am of the opinion that the refusal of the learned appellate Judge to restore the appeal to file was wrong amounting to refusal to exercise jurisdiction vested in it by law. Therefore, the order impugned cannot be sustained in law. It is accordingly set aside and the appellate Judge is directed to treat the other questions of limitation etc. in the appeal which is restored to file.
16. As a result, this revision succeeds and is allowed. Counsel's fee in this Court shall be Rs. 30/- if certified. However, the costs of this revision shall abide the decision of the appeal by the first appellate Court and shall be in the discretion of that Court.