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E.i.D. Parry Limited Vs. Agro Sales and Service and ors., Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberA.H.O. Nos. 33 and 34 of 1976
Judge
Reported inAIR1980Ori162; 50(1980)CLT419
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 13
AppellantE.i.D. Parry Limited
RespondentAgro Sales and Service and ors., Etc.
Appellant AdvocateC.V. Murty, ;C.A. Rao and ;G.P. Rao, Advs.
Respondent AdvocateB.H. Mohanty, ;S.K. Mohanty and ;P.K. Sahu, Advs.
Cases ReferredBajrang Rai v. Ismail Mian
Excerpt:
.....the principle laid down in manohar lal chopra's case (air 1962 sc 527) and observed :this is a well recognised principle. in view of the catena of supreme court decisions covering the field, there can be no scope for entertaining the view accepted by the learned single judge that even when the defendant failed to establish existence of sufficient cause for his non-appearance on the date of trial, he could obtain vacation of the ex parte decree passed against him by invoking the inherent powers......recognised by section 151, c. p. c., a court has no power to do that which is prohibited by the code. inherent jurisdiction of the court must be exercised subject to the rule that if the code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. in other words the court cannot make use of the special provisions of section 151 of the code where a party had his remedy provided elsewhere in the code and he neglected to avail himself of the same.......'there are several other decisions of the supreme court where the same view has been taken. in view of the plethora of decisions where the supreme court has indicated the principle in indisputable terms, we do not think there was.....
Judgment:

R.N. Misra, J.

1. These appeals under the Orissa High Court Order are directed against the judgment of a learned single Judge in two miscellaneous appeals under Order 43, Rule 1 (d) of the Code of Civil Procedure (hereafter called the Code) arising out of proceedings under Order 9, Rule 13 of the Code. When the appeals were placed before a Division Bench, it directed that both the matters be placed before a larger Bench.

2. Money Suit No. 339 of 1970 was filed by the appellant in the Court of the learned Subordinate Judge at Cuttack for recovery of Rs. 4,97,417.08 paise on the plea that appellant as principal had supplied goods to the defendants, a partnership firm and two of its partners, on credit and they had failed to pay the price of the goods. Defendants entered contest but ultimately suffered an ex parte decree. Two separate applications--one by defendants 1 and 3 and the other by the second defendant of the suit -- were filed under Order 9, Rule 13 of the Code read with Section 151 thereof for setting aside the ex parte decree. These applications were registered as Miscellaneous Cases Nos. 19 and 20 of 1975. On 25-11-1975, the learned trial Judge rejected both the applications. Therefore, two separate appeals were carried to this Court being Miscellaneous Appeals Nos. 191 and 203 of 1975. Both these appeals were heard together and were disposed of by a learned single Judge by common judgment reported in (1976) 42 Cut LT 1061 (Bhagwandas Bajoria v. E. I. D. Parry Ltd.) The learned single Judge dealt with the evidence on record at length and examined existence of sufficient cause for the absence of the defendants separately. In paragraph 5 of his judgment, the learned single Judge came to the conclusion :--

'........ On a perusal of the evidence on record and in view of the distinct advantage of the Court below to mark the demeanour of the witnesses examined before it, it becomes difficult for me to go against the finding of the Court below that the petitioner (defendant No. 2) has not been able to establish his case of illness on the date of hearing.'

It may be pointed out that the plea of illness was of defendant No. 2 who was said to be representing the firm--defendant No. 1. In Para. 6, the learned single Judge again came to hold :--

'On a perusal of the evidence adduced on behalf of the petitioners in Misc. Case No. 20/75 I am of the opinion that the evidence of illness of defendant No. 3 is not of a satisfactory and convincing nature, and so I am not inclined to interfere with the finding of the Court below that the petitioners could not establish the case of illness of defendant No. 3 in this case.'

Thus, the learned single Judge recorded a clear finding that existence of sufficient cause: viz., illness of defendant No. 2 as also of defendant No. 3 on the date of hearing had not been established and, therefore, the defendants failed to prove existence of sufficient cause for their absence from the Court on the date of trial. Notwithstanding such a finding, the learned single Judge took the view that provision of Section 151 of the Code was applicable and held :--

'My view, that in order to do justice in a suitable case an ex parte decree can he set aside or a suit dismissed ex parte can be restored for hearing by invoking the powers under Section 151, Civil Procedure Code even though the requirement of 'sufficient cause' as provided under Rules 9 and 13 of Order 9, Civil Procedure Code is not complied with gets full support from the above-mentioned decisions. Once the requirements for setting aside the ex parte decree laid down in Order 9, Rule 13, Civil Procedure Code are satisfied, the Court 'shall', and it has no other way but to set aside the ex parte decree and restore the suit for a fresh hearing. Therefore, the satisfaction of the requirements of Order 9, Rule 13, Civil Procedure Code binds the Court in a compulsory manner to set aside the ex parte decree. But apart from such compelling reasons to set aside the ex parte decree, there may arise in a suitable ease various other reasons which may impel the Court to set aside the ex Parte decree in order that real justice can be done between the parties, and in such a case the powers under Section 151, Civil Procedure Code can be exercised in the interest of justice.'

The learned single Judge ultimately allowed the appeals, set aside the ex parte decree on terms of costs and directed the suit to be reheard.

3. Plaintiff in its appeals under the Letters Patent maintained that the inherent powers of the Court recognised in Section 151 of the Code could not run counter to specific provisions in the Code itself and once provision has been made to cover the field in a given case, inherent powers could not be invoked to avoid specific provisions of the Code and deal with the situation. The Division Bench took note of several decisions and ultimately said thus:--

'As against this background of the confused state of the law so far as High Courts are concerned, we have been shown two decisions of the Supreme Court one reported in AIR 1964 SC 993. (Arjun Singh v. Mohindra Kumar) and the other in AIR 1965 SC 1144 (Ramkarandas v. Bhagwandas). The decision in the earlier Supreme Court case was one directly considering Order 9 while the other referred to a proceeding under Order 37 of the Code. Some of the decisions that have been cited proceeded on a construction of the rule indicated in AIR 1962 SC 527 (Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal) and from the general statement of the legal position with reference to Section 151 of the Code they drew inspiration to support the view that Section 151 of the Code was invocable.

It appears that notwithstanding the decision of the Supreme Court referred to above, there have been authorities in this Court taking the view that Section 151 of the Code is still available to be invoked. We are of the view that a stage has come when the position should be reviewed so that notwithstanding the fact that the Supreme Court decision is the law of the laud and could not be deviated from in this Court, precedents may not come into existence to the contrary effect.

We, therefore, feel inclined that the matter should be placed before a larger Bench and the law must be restated ...'

That is how these appeals have now come before the Full Bench.

4. Mr. Mohanty for the defendants-respondents seeks to challenge the finding of the learned single Judge should (sic) defendants having railed to establish the plea of illness and hence existence of sufficient cause. He maintains that the learned single Judge having ultimately decided in favour of the defendants, they had no occasion to prefer any appeal against the said decision. When plaintiff has come in appeal against the said decision of the learned single Judge, defendants would be entitled to maintain the ultimate conclusion of the learned single Judge by challenging the finding on one aspect of the matter. This aspect of the matter need not be examined by us and after we settle the legal position about invocability of Section 151 of the Code even when the defendants have failed to establish the plea of sufficient cause for their absence on the date of trial, we propose to leave this aspect to be dealt with by the Division Bench.

5. Order 9, Rule 13 of the Code provides:--

'In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:XXX XXX XXX '

In the case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, a Bench of three learned Judges was dealing with a similar situation. An application to set aside the ex parte decree had been made under Order 9, Rule 13 and illness had been pleaded as sufficient cause. In Paragraph 19 of the judgment the Court pointed out:--

'........ It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates......'

The Court also pointed out:--

'....... .Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order IX Rule 7 and Order IX Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus provision has been made for every contingency, it stands to reason that there is no scope for the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. ........'

6. The principles that once statutory provisions has been made to cover a given field, application of inherent powers would stand regulated and in case statutory law covers the entire field, application of inherent powers would stand excluded appear to have been well recognised. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, a Bench of four learned Judges examined the invocation of inherent powers for staying further proceedings in a suit. In Paragraph 27 of the judgment, Dayal. J. speaking for the Court observed:--

'The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure.'

It was again pointed out:--

'........ when there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under Section 151 is not justified........'

In the case of Ramkarandas v. Bhagwandas, AIR 1965 SC 1144, the Court quoted with approval the principle laid down in Manohar Lal Chopra's case (AIR 1962 SC 527) and observed :--

'...... This is a well recognised principle. Rule 4 of Order 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under Order 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to Section 151 for setting aside such a decree.........'

In the case of Ram Chand and Sons Sugar Mills P. Ltd. v. Kanhayalal Bhargava, AIR 1966 SC 1899, the principle laid down in Arjun Singh's case (AIR 1964 SC 993) was expressly approved and the Court observed :--

'Having regard to the said decisions, the scope of the inherent power of a Court under Section 151 of the Code may be defined thus : The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions....'

In the case of Nainsingh v. Koonwarjee, AIR 1970 SC 997, it was pointed out :--

'........ The High Court has misconceived the scope of its inherent powers. Under the inherent power of Courts recognised by Section 151, C. P. C., a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same.......'

There are several other decisions of the Supreme Court where the same view has been taken. In view of the plethora of decisions where the Supreme Court has indicated the principle in indisputable terms, we do not think there was scope for the view expressed by the learned single Judge that even if Order 9, Rule 13 of the Code did not apply, inherent powers of the Court could be invoked.

7. Mr. Murty appearing for the appellant placed for consideration a Bench decision of the Calcutta High Court in the case of Durga Charan Sonar v. Kaliprosad Sonar, AIR 1977 Cal 46, where an application under Order 9, Rule 9 of the Code having been dismissed on merit, Section 151 of the Code was held not to be applicable. A Full Bench decision of five Judges of Patna High Court in the case of Bajrang Rai v. Ismail Mian, 1978 BLJR 497 : (AIR 1978 Pat 339), was also placed before us. The question for consideration arose in relation to dismissal of an application under Order 9, Rule 9 of the Code and the Court took the view that inherent powers could be exercised with reference to such a case. We may briefly indicate that the ratio of the Patna decision would not apply to the present case inasmuch as the Patna High Court was not dealing with a case under Order 9, Rule 13 of the Code, but was dealing with a restoration application of a miscellaneous proceeding under Order 9, Rule 9 of the Code. In view of the catena of Supreme Court decisions covering the field, there can be no scope for entertaining the view accepted by the learned single Judge that even when the defendant failed to establish existence of sufficient cause for his non-appearance on the date of trial, he could obtain vacation of the ex parte decree passed against him by invoking the inherent powers. The legal proposition indicated to the contrary by the learned single Judge in the decision reported in (1976) 42 Cut LT 1061 must, therefore, be reversed as contrary to law. We have not specifically dealt with several cases of this Court where different conclusions have been arrived at but we make it explicitly clear that Section 151 of the Code is not invocable when defendant fails to establish existence of sufficient cause for his non-appearance and this being the law, decisions to the contrary cannot be accepted as laying down the correct proposition of law.

8. As we have indicated earlier, Mr. Mohanty wanted a chance to canvass his proposition that the finding of the learned single Judge that there was no sufficient cause is incorrect. Non-filing of an appeal by the defendants against the decision of the learned single Judge would not preclude such a contention and even without challenging the finding by a memorandum of cross-objection the appellants before the learned single Judge could support the ultimate decision of the learned single Judge by raising the contention which Mr. Mohanty seeks.

9. The two appeals shall now go back to the Division Bench where that limited question may be examined. We make no order for costs.

K.B. Panda, J.

10. I agree.

P.K. Mohanti, J.

11. I agree.


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