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Gulam Ali S/O. Abdulali Bohara Vs. Vishwanath Balwant Mahakal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Case No. 104 of 1961
Judge
Reported inAIR1962MP308
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 9 - Order 41, Rule 19; Madhya Pradesh High Court Rules - Rule 12
AppellantGulam Ali S/O. Abdulali Bohara
RespondentVishwanath Balwant Mahakal
Appellant AdvocateE.Y. Paul, Adv.
Respondent AdvocateWarune, Adv. for ;Goyal, Adv.
DispositionApplication allowed
Cases ReferredIn Neba Ram v. Khota Ram
Excerpt:
.....month of june. he therefore failed to come from ratlam to indore for the case; that for that reason he failed to secure information about the date of hearing as being 6-7-1961 or the adjourned date 7-7-1961. 3. the facts disclosed in the affidavit to my mind disclosed sufficient cause for the absence of the party or his counsel. it is likely that the counsel failed to secure information about the date of hearing being 6-7-1961. under these circumstances it is not legitimate that the party should be penalised for the error which may be due to an accidental circumstance particularly when the counsel lived at an out-station like ratlam, but it is contended by mr......in the decision of burn, j. it was held that a revision petition under section 115, c. p. code dismissed for default cannot be restored by resort to section 107 read with order 9, rule 9, c. p. code. the above referred decision of burn, j. was followed by byers, j. in air 1945 mad 103 when the question regarding restoration of a revision petition under section 115, c. p. code arose. the learned judge repelled the argument advanced on behalf of the petitioner that if the court had no power to restore it had no power to dismiss for default by relying upon the words in section 115 to the effect 'the high court may make such order in the case as it thinks lit.' according to the learned judge neither the powers under order 9, rule 9 read with section 141 nor those under 0. 41, r. 19,.....
Judgment:
ORDER

V.R. Newaskar, J.

1. This is a petition under Section 151, C. P. Code for restoration of the revision petition dismissed lor default by an order dated 7-7-1961.

2. The revision petition was fixed for hearing on 6-7-1961 after reopening of the court after the summer vacation on 26th June 1961. The case had been listed according to Rules for that day. As nobody appeared on behalf of the petitioner it was adjourned to 7th and listed accordingly. On that day too neither the petitioner nor his counsel took any notice of the adjourned date. When, therefore the case came up on for hearing on 7-7-1961 it was dismissed for default. The present petition for restoration was submitted by shri E. Y. Paul the counsel for the petitioner. An affidavit was filed by the learned counsel in support of this petition. In the affidavit it was stated that the counsel had gone to madras for the summer vacation and consequently he failed to inquire about the probability of the case-coming up for hearing in the first week of July in the month of June. He therefore failed to come from Ratlam to Indore for the case; that for that reason he failed to secure information about the date of hearing as being 6-7-1961 or the adjourned date 7-7-1961.

3. The facts disclosed in the affidavit to my mind disclosed sufficient cause for the absence of the party or his counsel. The party was not at fault as he had entrusted the case to his counsel who lived at Ratlam. The counsel had been to Madras during vacation which ended at the end of June. It is likely that the counsel failed to secure information about the date of hearing being 6-7-1961. Under these circumstances it is not legitimate that the party should be penalised for the error which may be due to an accidental circumstance particularly when the counsel lived at an out-station like Ratlam, But it is contended by Mr. Warune for the opponent that a revision petition dismissed for default cannot be restored. The provisions regarding appeal under Order 41, Rule 19, C. P. Code do not apply to revision petition. Nor can the inherent powers be resorted to for the purpose. The learned counsel relied upon the decisions of the Madras High Court reported in AIR 1943 Mad 260(1), Subbamma v. Venkata Reddy, AIR 1945 Mad 103, Ramamurthi Iyer v. Meenakishisundarammal and AIR 1951 Mad 672, Fire Stone Tyre and Rubber Co. V. Ramanuja, in support of this contention.

4. In AIR 1943 Mad 260 (I), Byers, J. relying upon an earlier decision of Burn, J. in C. M. P. No. 6550 of 1941, Khizar Muhammad v. Abdul Razack Sahib, held that a petition for restoration of a small cause revision dismissed for default is incompetent. In the decision of Burn, J. it was held that a revision petition under Section 115, C. P. Code dismissed for default cannot be restored by resort to Section 107 read with Order 9, Rule 9, C. P. Code. The above referred decision of Burn, J. was followed by Byers, J. in AIR 1945 Mad 103 when the question regarding restoration of a revision petition under Section 115, C. P. Code arose. The learned Judge repelled the argument advanced on behalf of the petitioner that if the Court had no power to restore it had no power to dismiss for default by relying upon the words in Section 115 to the effect 'the High Court may make such order in the case as it thinks lit.' According to the learned Judge neither the powers under Order 9, Rule 9 read with Section 141 nor those under 0. 41, R. 19, C. P. Code can be invoked for the purpose. He also rejected the contention that power under Section 151, C. P. Code at any rate could be resorted to for the purpose. His reasoning was that Section 151 cannot be taken to confer jurisdiction upon a Court which it does not otherwise possess. The decision of Byers, J. in the earlier case reported in AIR 1943 Mad 260(1) is followed by Balakrishna Ayyar, J. in his decision reported in AIR 1951 Mad 672, wherein the question regarding restoration of a small cause revision arose. He noticed that the difficulty felt by the decisions of Byers, J. and Burn, J. in the case noted above in restoring a revision petition dismissed for default, where there was sufficient ground for the non-appearance of the petitioner, was removed by amending the Appellate Side Rules of the Madras High Court and making a specific provision therein for the purpose so far as revision petition under Section 115, C. P Code was concerned. But according to him the amended Rule had no application to the Small Cause Revision.

5. In my opinion this Court does possess power to restore a revision petition dismissed for default if there be sufficient ground for the non-appearance of the petitioner at the hearing. This power is necessarily implied in Rule No. 12 of Part I Chapter IV of the Rules of this Court. That Rule is.

'All petitions made to this Court for restoration to file Civil Revisions dismissed for default by this Court will be treated as Prima Facie made without such diligence as ought ordinarily to be shown to entitle the petitioner to the relief, if the period from the date of the order of which revision is sought to the date on which the petition is made excluding the time properly spent in obtaining any copy required to be submitted with the petition is more than 30 days'.

6. Moreover although the view taken by Byers J. in AIR 1945 Mad 103 that Order 9 Rule 9 read with Section 107 or Section 141 cannot be resorted to for the purpose nor can Order 41 Rule 19 be applied for the purpose be correct yet his reasoning for the non-applicability of Section 151 C. P. Code does not appear to be exceptionable if I may say so with respect. If it is meant to say that since there is no specific power provision in the Code authorising restoration of a revision petition dismissed for default such power can-not be assumed to exist by reason of Section 151, The underlying idea is that Section 151 is not meant to cover up cases for which there is no specific provision then this is contrary to the real purpose for which Section 151 C. P. Code is meant. This provision is meant to provide for cases in which the courts ought to act in the interest of justice although specific provision is not to be found elsewhere in the Code.

The real method of approach in considering the question whether the Court in a given case can act under Section 151, C. P. Code is to see whether resort to it is either expressly or by necessary implication prohibited. If there is no specific prohibition and resort to such power serves the ends ot justice instead of defeating it then it can always be resorted to. To hold otherwise would be to give preference to form over requirements of justice. The decision of the Privy 'Council in Maulvi Md. Abdul Majid v. Md. Abdul Aziz, 24 Ind App 22 (32) fully supports this method of approach. It may be contended that this may be a proper rule as long as the Court is seized of a case but cannot apply where it acts in exercise of its power 'to make such order as it thinks fit'. But to my mind a case disposed of under circumstances which justify its restoration would be taken to be as much in the seisin of the court as a case actually pending. This is implicit in the provisions as to restoration contained in Order 41, Rule 19 and Order 9 Rule 9, C. P. Code. The mere fact that the Legislature did not anticipate and provide for a situation such as the one involved in this case cannot mean that the High Court should not exercise this power even if the considerations of justice require it. As observed by Mahmood J. in Narsingh Das v. Mangal Dubey, ILR 5 All 163 (172) (F.B.):

'The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed'.

7. This is also the 'view taken in Bhagat Singh v. Jagbir Sawhney, AIR 1941 Cal 670.

8. It is too much to say that the Legislature has in mind that a revision petition which is once dismissed for default for the non-appearance of the petitioner or his counsel, should never be heard on merits even if there is sufficient cause for such non-appearance.

9. In Neba Ram v. Khota Ram, AIR 1928 Lah 550 Jallat, J. seems to have expressed the view that a revision petition dismissed for default can be restored. In Kanshi Ram V. Mt. Dharmi, AIR 1953 Him Pra 102 the same view is taken.

10. Thus both in view of the Rule of this Court as also on general considerations mentioned above a revision petition dismissed for default can be restored by this Court in proper case .

11. Now as I have held that there was sufficient cause for the non-appearance of the petition on 6-7-1961 and 7-7-1961 the application for restoration deserves to be allowed.

12. This application for restoration is therefore allowed and the order dated 7-7-1961 dismissing revision petition No. 455 of 1960 is set aside.

The said petition shall be restored to file and be set for hearing early with due intimation to the parties or theircounsel.


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