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Pooranchand Mulchand JaIn Vs. Komalchand Beniprasad Jain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 39 of 1961
Judge
Reported inAIR1962MP64
ActsCode of Civil Procedure (CPC) , 1908 - Sections 141 and 151 - Order 9, Rule 9; Limitation Act, 1908 - Schedule - Articles 163 and 181
AppellantPooranchand Mulchand Jain
RespondentKomalchand Beniprasad Jain
Appellant AdvocateJ.P. Dwivedi, Adv.
Respondent AdvocateR.P. Jain, Adv.
Cases Referred and Shyam Sunder v. Nilakantha Das
Excerpt:
- .....p. c.can be set aside in exercise of the inherent powersof the court under section 151, c. p. c. and that theexercise of inherent powers is not fettered by anyrule of limitation.
Judgment:

Dixit, C.J.

1. This matter comes up before us on a reference by our learned brother Tare J. for decision on the question as to the period of limitation for an application for restoration of an application under Order 9 Rule 9 C. P. C. which itself has been dismissed in default.

2. The petitioner Pooranchand's suit was dismissed for default in appearance under Order 9 Rule 8 C. P. C. He then filed an application under Rule 9 for restoration. This application for restoration was itself dismissed for default of appearance on 3rd September 1959. Thereupon on 30th November 1959 the petitioner made an application for setting aside the dismissal of his application for restoration. This application was rejected by the trial Court on the ground of limitation relying on Pitambar Lal v. Dodee Singh, ILR 46 All 319: (AIR 1924 All 503). In the Allahabad case it was held that an application for setting aside the dismissal in default of an application for restoration under Order 9 Rule 9 could itself be treated as an application for restoration of the suit and would be governed by Article 163 of the Limitation Act.

3. From what the learned Judge has said in the order of reference, it appears that before him it was not disputed that an application for setting aside the dismissal in default of an application for restoration under Order 9 Rule 9 was competent under Section 151 C. P. C. The controversy centred round the question as to whether an application for invoking the inherent powers of the Court under Section 151 was governed by Article 163 or by Article 181 of the Limitation Act. The learned Single Judge thought it necessary to make this reference, as in his opinion, the question was of frequent occurrence and was not covered by any decision of this Court or any other High Court.

4. Before answering the question as regards limitation posed by the learned Single Judge, it is necessary to determine the provision under which an application for setting aside the dismissal for default of an application for restoration under Order 9 Rule 9 C. P. C. is maintainable. In Brijmohan v. Raghoba, 28 Nag LR 83 : (AIR 1932 Nag 101) it has been held by a Division Bench of the Nagpur Judicial Commissioner's Court that no appeal lies from an order rejecting an application to set aside the dismissal for default of an application for restoration of a suit dismissed in default, and that the dismissal of such an application can be set aside under Section 151.

The learned Judges based this conclusion on the reasoning that Section 104(1)(i) and Order 43 Rule 1 C. P. C. did not provide for an appeal against an order of dismissal for default of an application for restoration of a suit under Order 9 Rule 9; that the right of appeal being a substantive right could not beinferred by the application of Section 141 which onlymade the procedure in the Code applicable, in sofar as it could be, in all proceedings in any courtof civil jurisdiction and did not give any substantiveright; and that, therefore, an under of dismissal fordefault of an application for restoration of a suitunder Order 9 Rule 9 was not appealable under Order 43Rule 1(c). On the same reasoning the learned Judgestreating the remedy under Order 9 Rule 9 as a substantiveone held that it was not available by resorting toSection 141 C. P. C., for setting aside the dismissal indefault of an application for restoration of a suitunder Order 9 Rule 9. This decision was followed by aSingle Judge of the Nagpur High Court in PremShankar v. Rampyarelal, ILR (1944) Nag 558: (AIR1944 Nag 317).

5. We entirely agree with the view expressed in 28 Nag LR 83: (AIR 1932 Nag 101) (supra). Order 9 in terms applies only to suits. The remedy under Order 9 Rule 9 C. P. C. is not a matter of procedure (See Sitaram v. Bapurao, 1953 Nag LJ 144: (AIR 1953 Nap 153). The rule gives a substantive right of applying for restoration of a suit dismissed for default and this right cannot be conferred by Section 141 when it is made applicable to proceedings initiated on an application for setting aside the dismissal in default of an application for restoration of a suit under Order 9 Rule 9 C. P. C. Section 141 deals only with procedure and not with any substantive right. It docs no more than provide the procedure to be adopted by courts of civil jurisdiction in dealing with matters before them. It does not provide that the Code is to be applied in its entirety to such proceedings so as to confer the right of appeal or any other substantive right in those proceedings. Order 9 Rule 9 cannot, therefore, be invoked for setting aside the dismissal in default of an application for restoration of a suit under that rule. On the same principle an order dismissing in default an application for restoration of a suit under Order 9 Rule 9 is not open to appeal under Order 43 Rule 1(c). The dismissal of such an application for default is in the exercise of the inherent powers of the court. That being so, the dismissal can be set aside by the exercise of the same inherent powers.

It seems to us unnecessary to examine some decisions in which it has been held that an appeal lies under Order 43 Rule 1(c) from an order rejecting for default an application udder Rule 9, (See Doma Chandhary V. Ram Naresh Lal, AIR 1959 Pat 121 (FB) and cases noted in Chitale's Civil Procedure Code, volume II, under note (2) to Order 9 (General). These decisions and others making Order 9 Rule 9 applicable for setting aside an order rejecting for default an application for restoration of a suit under Order 9. Rule 9 C.P.C. overlook the position that when an appeal is preferred against an order rejecting for default an application under Rule 9 for the restoration of a suit, the appeal is not against the order to set aside the dismissal of a suit within the meaning of Order 43 Rule 1(c), that Section 141 deals with procedure alone and not with any substantive rights, and that the remedy under Order 9 Rule 9 C.P.C. is not a matter of procedure but is a substantive right.

6. Shri Verma, learned counsel appearing for the opponent, said that in 28 Nag LR 83 :(AIR 1932 Nag 101), (supra) a doubt was expressed as to whether an application for setting aside the dismissal for default of an application to restore a suit under Order 9 Rule 9 C.P.C. was maintainable under Section 151 C. P. C. We do not find any such doubt expressed in the opinion delivered by the learned Judges in Brijmohan's case, 28 Nag LR 83 :(AIR 1932 Nag 101) (supra). The doubt that was expressed by Niyogi, A. J. C., was on the question whether an application to set aside the dismissal of an application for restoration of a suit dismissed for default could be regarded as an 'original matter' to which Section 141 C. P. C. could be applied. But the learned Judges were emphatic on the point that even if Section 141 were to be made applicable to cases of applications to set aside the dismissal of an application for restoration of a suit dismissed in default, that would not give the substantive right of making an application for restoration under Order 9 Rule 9, and that in the absence of any express provision in the Code the right to make such applications is implied in Section 151.

7. Now, if as we think, the dismissal in default of an application for the restoration of a suit under Order 9 Rule 9 C. P. C. can be set aside by resort to Section 151, C. P. C., then there is no question of any limitation for an application made to invoke the inherent powers of the Court. Section 151 does not deal with any application, nor docs it lay down procedure for any application. It is a provision recognising the inherent power of the court to act ex debito justitiae. An application invoking this power is not one which a party is required to make under any provisions of the Code for setting in motion any machinery of the Court. Therefore it is not governed by Article 181 or any other Article of the Limitation Act. As has been held by the Supreme Court in Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., AIR 1953 SC 98 Article 181 governs only the applications under the Code of Civil Procedure and has to be read as if the words 'under the Code' were added in the first column of the article. It follows therefore that the application contemplated by Article 181 is one which a party has to make for the machinery of the Court to be set in motion under the provisions of the Code and the application has to be made within three years from the date when the right to apply accrues.

8. Learned counsel for the opponent said that an application invoking the inherent powers under Section 151 would be subject to the limitation prescribed by Article 163 of the Limitation Act. We do not agree. As an application made to invoke the inherent powers of the Court under Section 151 is not an application under the Code which a party is required to make, Article 163 has no applicability. That apart, reading Articles 163 and 164 together it is clear that Article 163 prescribes limitation for an application to set aside the dismissal for default of a suit and not for an application to set aside the dismissal for default of an application for restoration of a suit under Order 9, Rule 9, C. P. C. The view that an application invoking the inherent powers of the Court under Section 151, C. P. C. is not governed by Article 181 or any other article of the Limitation Act is fortified by the decisions in Goverdhan v. Hemrajsingh, ILR (1944) Nag 408:

(AIR 1944 Nag 335), Annada Prasad v. Sushil Kumar. AIR 1942 Cal 390, and Shyam Sunder v. Nilakantha Das, AIR 1956 Orissa 165. Though there is no limitation for invoking the inherent powers of the court under Section 151, the party invoking that jurisdiction must be diligent and not guilty of laches.

9. For all these reasons, our answer to thequestion referred to by the learned Single Judgeis that the dismissal for default of an applicationfor restoration of a suit under Order 9 Rule 9, C. P. C.can be set aside in exercise of the inherent powersof the Court under Section 151, C. P. C. and that theexercise of inherent powers is not fettered by anyrule of limitation.


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