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Padmacharan Mohanty and anr. Vs. Moti Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 64, 117 and 151 of 1961
Judge
Reported inAIR1963Ori88
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 8 - Order 22, Rule 3
AppellantPadmacharan Mohanty and anr.
RespondentMoti Dei and ors.
Appellant AdvocateD. Sahu, Adv.
Respondent AdvocateM.N. Das and ;K.M. Choudhuri, Advs.
DispositionRevisions dismissed
Cases ReferredDebi Baksh Singh v. Habib Shah
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........february 10, 1931 allowing the plaintiffs' appeal being m. a. no. 197 of 1960 that the defendants filed civil revision no. 117 of 1961 herein. 3. after restoration of the plaintiffs' said misc. case no. 168 of 1959 for substitution, it was fixed to be heard on april 6, 1961. the defendants had in the meantime filed an application for stay of the said m.j.c. no. 168 of 1959. the learned trial court, however, on february 6, 1961, -- the date on which the said m.j.c. no. 168 of 1959 was fixed to be heard, -- instead of staying the said m. j. c. no. 168 of 1959 restored the plaintiffs' original money suit no. 82 of 1956 which was dismissed for default on november 3, 1956, by when the original plaintiff binode behari sahu was dead, --a fact of which the trial court was not aware at the time......
Judgment:
ORDER

S. Barman, J.

1. These three Civil Revisions arise out of orders made by the trial court which, ultimately resulted in the restoration of Money Suit No. 82 of 1956 in the circumstances hereinafter stated.

2. The matter arose thus: On February 6, 1956 one Binode Behari Sahu filed a suit against the defendants for realisation of house rent in arrear. The said Binode Behari died on September 14, 1956 leaving him surviving the plaintiffs as heirs and representatives (hereinafter referred to as the present plaintiffs). The Court was not informed of the death of the said Binode Behari Sahu until as hereinafter stated.

On November 3, 1956, the suit was fixed to be heard and on that date the suit was dismissed for default. On November 23, 1956, the present plaintiffs made an application, stating that the said Binode Behari Sahu had died on September 14, 1956 and that the applicants were his legal representatives and prayed for re-hearing of the suit which was dismissed for default as against the original plaintiff Binode Behari Sahu who at that time was dead. The said application is said to have been made by the present plaintiffs under Order 9, Rule 9 Civil Procedure Code and was marked M. J. C. 363 of 1956. Although there was no specific prayer for substitution, it is said to be in substance an application for substitution of the legal representatives of the original plaintiff Benode Behari Sahu, Apparently, the petition was not in proper form and so technically defective. On April 22, 1957, the said MJC 363 of 1956 was dismissed for default. On September 6, 1957 the present plaintiffs filed an application being MJC No. 273 of 1957 for restoration of their earlier M. J. C. No. 363 of 1956. On May 10, 1958 the said M. J. C. No. 273 of 1957 filed by the present plaintiffs was dismissed on merits. Thereafter, the present plaintiffs filed an appeal from the said order of dismissal being M. A. No. 73 of 1958.

During the pendency of the said M. A. No. 73 of 1958, on March 16, 1959 the present plaintiffs filed an application being Misc. Case No. 168 of 1959 before the trial Court under Order 22, Rule 9(2) for substitution of themselves in place of the original plaintiff Binode Behari Sahu, and also filed an application under Sections 5 and 14 of the Limitation Act for condonation of delay caused by reason of having wrong proceedings not properly advised according to law. It is apparent that after realising the defect in the original application of the present plaintiffs being M. J. C. No. 363 of 1956 filed on November 23, 1956 by which they brought to the notice of the Court that the original plaintiff Binode Behari Sahu had died, the present plaintiffs subsequently on legal advice filed the, said application for substitution being Misc. Case No. 168 of 1959 as aforesaid. After the said application for substitution was property made as aforesaid, the present plaintiffs took no interest in prosecuting said appeal being M. A. 73 of 1958 and allowed it to be dismissed for default on October 26, 1959.

Then on May 13, 1960 the said application for 'substitution being Misc. Case No. 168 of 1959 was dismissed for default. The circumstances, -- in which the said Misc. Case No. 168 of 1959 is said to have been dismissed for default, -- was that before the summer vacation in May 1960 the trial Court is said to have givers the present plaintiffs an assurance that the case with not be heard before the summer vacation, In spite of the assurance, the said Misc. Case No. 168 of 1959 was taken up and dismissed for default. The following day on 14-5-1960 the present plaintiffs filed an application being Misc. Case No. 144 of 1960 for restoration of their Misc. Case of No. 168 of 1959 for substitution. On November 4, 1960 the plaintiff's said Misc. Case No. 144 of 1960 was dismissed on merits. Thereafter, the plaintiffs filed an appeal being M. A. 197 of 1960. On February 10, 1961 the said appeal M. A. 197 of 1960 was allowed with the result that the plaintiffs' said Misc. Case 168 of 1959 for substitution was restored. It is against this order of the learned trial Court dated February 10, 1931 allowing the plaintiffs' appeal being M. A. No. 197 of 1960 that the defendants filed Civil Revision No. 117 of 1961 herein.

3. After restoration of the plaintiffs' said Misc. Case No. 168 of 1959 for substitution, it was fixed to be heard on April 6, 1961. The defendants had in the meantime filed an application for stay of the said M.J.C. No. 168 of 1959. The learned trial Court, however, on February 6, 1961, -- the date on which the said M.J.C. No. 168 of 1959 was fixed to be heard, -- instead of staying the said M. J. C. No. 168 of 1959 restored the plaintiffs' Original Money Suit No. 82 of 1956 which was dismissed for default on November 3, 1956, by when the original plaintiff Binode Behari Sahu was dead, --a fact of which the trial Court was not aware at the time. It is against the said order of the trial Court passed on April 6, 1961 restricting the money suit that the defendants filed another Civil Revision being Civil Revision No. 151 of 1961 here.

4. The present plaintiffs also filed a Civil Revision being Civil Revision No. 64 of 1961 directed against the order of the trial court dated Nov. 4, 1960 whereby it dismissed on merits the plaintiffs' said Misc. Case No. 144 of 1960 for restoration of the Miscellaneous case for substitution which was dismissed. The point of the present plaintiffs in the said Civil revision is that although the trial Court had assured the plaintiffs that the Misc. Case No. 168 of 1959 for substitution would not be heard before the summer vacation, the trial Court dismissed it for default.

5. It is in the above circumstances that these three Civil Revisions have been filed -- Civil Revision No. 117 of 1961 and Civil Revision No. 151 of 1961 by the defendants and Civil Revision No. 64 of 1961 by the present plaintiffs in the circumstances hereinbefore stated.

6. Re : C. R. 117 of 1961 and C. R. 151 of 1961.

The point urged on behalf of the defendants petitioners in these Civil Revisions is that the court had no jurisdiction to pass the orders dated February 10, 1961 and April 6, 1961, namely, order dated February 10, 1961allowing M.A. No. 197 of 1960 with the effect that Misc. Case No. 168 of 1959 for substitution was restored, andthe order dated April 6, 1961, by which the suit itself was ultimately restored. The defendants' point in substance is that the suit having been dismissed for default on November 3, 1956 it was finally concluded, and Court hadno jurisdiction to restore the suit and thereby review it. The defendants' further point is that the second application for substitution filed on March 16, 1959 being Misc. Case No. 168 of 1959 was not maintainable and that it was only a manoeuvre to cure the initial defect which was fatal.

7. These arguments have no force because the orderof dismissal of the suit passed on November 3, 1956 against the original plaintiff Binode Behari Sahu who by then was dead, is a nullity, and there is no question of finality of a decree which on the face of it was null and void. The original plaintiff having died the right to sue survived to his legal representatives. The present plaintiffs rightly made an application on Nov. 23 1956 intimating to court about the death of the original plaintiff. Under Order 22, Rule 3 all that the legal representatives, desirous of proceeding with the case, have to do is that they should make an application as the present plaintiffs did in the present case. The further acts are left to the Court. Where no order is passed by the Court and the applicant also did not press the need for formal order, the omission on the part of the applicant will not take away his right to proceed with the case as there is no duty cast on him by the rule to remind the Court of observance of the rules. In the present case, the proceedings in the suit after the death of the original plaintiff Binode Behari Sahu were not regular and valid. Since the omission on the part of the Courts below placed the parties in a disadvantageous position, Section 151 Civil Procedure Code provided an appropriate remedy and the Court had inherent jurisdiction to correct the mistake. It is quite clear that the subsequent proceedings were of no effect as they were all in the absence of the original plaintiff who was dead and his legal representatives had not been substituted.

8. Moreover, in the present case, there is no question of abatement because the legal representatives made an application being M.J.C. No. 363 of 1956 within time on November 23, 1956 as aforesaid. In somewhat similar position their Lordships of the Privy Council held that decisions are vitiated by applying to a dead man orders and rules applicable only to a mere defaulter; in such circumstances quite apart from Section 151 Civil Procedure Code any Court might rightly consider itself to possessinherent power to rectify the mistake inadvertently madein dismissing the suit; thus viewed, the order of theCourt setting aside such dismissal was held to be manifestly sensible and correct and their Lordships restored it. Debi Baksh Singh v. Habib Shah, ILR 35 All 331 (PC).

9. The revisional jurisdiction of the High Court is entirely discretionary and it is only in the interest of justice that the High Court should interfere in revision.

In the present case, in the circumstances statedabove, the order dated February 10, 1961 allowing M.A.397 of 1960 as also the order dated April 6, 1961 restoring the suit itself are upheld as sensible and justified.In this view of the case the defendants' Civil RevisionNo. 117 of 1961 and C. R. No. 151 of 1961 are dismissedbut without costs.

10. Re. C. R. 64 of 1961.

In view of the position that Civil Revision No. 117 of 1961 and Civil Revision No. 151 of 1961 are dismissed the present plaintiffs do not press their Civil Revision as unnecessary, and accordingly Civil Revision No. 64 of 1961 having not been pressed is dismissed without costs.


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