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Kalamani Misra Vs. Makhanlal Moda - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 115 of 1962
Judge
Reported inAIR1964Ori98
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 20, Rule 5 - Order 47, Rule 1
AppellantKalamani Misra
RespondentMakhanlal Moda
Appellant AdvocateB. Mohapatra, ;H.C. Mukherji and ;S. Misra, Advs.
Respondent AdvocateB.K. Pal and ;B.K. Ray, Adv.
DispositionRevision allowed
Cases ReferredManohar Lal Chopra v. Seth Hiralal
Excerpt:
.....or peculiar circumstances. but the inherent powers can never be invoked where the party pursued the other prescribed remedies for the same relief and failed to get the relief. in this case, against the ex parte decree, the defendant came even upto the high court in different proceedings and failed to get the relief in the misc......of 1958 was filed on 30th october 1958 under order 9, rule 13, c. p. c. for setting aside the ex parte decree. the misc. case was dismissed for default on 20th august 1960 after the defendant took various adjournments for a period of two years. against this order of dismissal the defendant filed miscellaneous appeal no. 104 of 1960 in the high court which was dismissed on 19th april 1961. against the dismissal order, m. j. c. no. 39 of 1961 was filed and the same was dismissed on 8th september 1961. against the very order of dismissal dated 20-8-1960, another misc. case no. 145 of 1960 was simultaneously filed by the defendant under section 151, c. p. c. in the court of the subordinate judge. that misc. case was dismissed on contest on 24th july 1961. against that order of dismissal......
Judgment:

G. K. Misra, J.

1. Plaintiff is the petitioner. Plaintiffs case is as follows : The opposite party (defendant) has a building in Cuttack town. By two mortgage deeds dated 31st March 1953 and 14th October 1953, the defendant mortgaged, the house in favour of the plaintiff for Rs. 11,000/-. On 1st December 1953, defendant executed an agreement to sell the house to the plaintiff for Rs. 13,000/-. On the very day, defendant took Rs. 500/- and put the plaintiff in possession. On nth March 1954 defendant took a further sum of Rs. 500/- which was verbally agreed to be adjusted towards the balance consideration. It was settled between the parties at the time of agreement to sell that Rs. 12,000/- would be set off towards the consideration and the defendant would receive the balance of Rs. 1000/- only and the plaintiff was to bear all the costs of the sale-deed and that the sale deed would be executed a month after the final disposal of the Maintenance Suit No. 13 of 1951 filed against the defendant by his grand-mother. That suit was disposed of on 31st March 1955 and the house in dispute was subject to a charge of Rs. 20/-towards the maintenance of the grand-mother. The defendant obtained Khasmahal permission in Misc. case No. 477 of 1954-55 to sell the house to the plaintiff for Rs. 13,000/-, and in the application for permission the defendant clearly stated that the sale was for discharge of the aforesaid mortgage deeds of Rs. 11,000/- As the defendant did not execute the sale deed despite repeated demands and advocate's notice, the plaintiff instituted Title Suit No. 17 of 1956 in the Court of the Subordinate Judge at Cuttack. The plaintiff prayed for specific performance of contract and execution of the sale-deed in his favour by the defendant on payment of the balance consideration of Rs. 1000/- for, in the alternative, for a decree for Rs. 13,785/- inclusive of principal and interest. The defendant took various adjournments for a period of about two and half years on different dates of hearing. on 1st October 1958 the suit was decreed ex parte. Misc. case No. 201 of 1958 was filed on 30th October 1958 under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree. The Misc. case was dismissed for default on 20th August 1960 after the defendant took various adjournments for a period of two years. Against this order of dismissal the defendant filed Miscellaneous Appeal No. 104 of 1960 in the High Court which was dismissed on 19th April 1961. Against the dismissal order, M. J. C. No. 39 of 1961 was filed and the same was dismissed on 8th September 1961. Against the very order of dismissal dated 20-8-1960, another Misc. case No. 145 of 1960 was simultaneously filed by the defendant under Section 151, C. P. C. in the Court of the Subordinate Judge. That Misc. case was dismissed on contest on 24th July 1961. Against that order of dismissal. Civil RevisionNo. 268 of 1961 was filed which was dismissed on 30th November 1961. The defendant filed Misc. Case No. 140 of 1961 on 20-10-61 in the Court of the Subordinate Judge of Cuttack under Section 151, C. P. C. and prayed that the order dated 1-10-1958 and the ex parte decree following it in Title Suit No. 17 of 1956 be reviewed and proper orders be passed thereon. The learned Subordinate Judge allowed the Misc. case on 14th April 1962, set aside the ex parte decree dated 1-10-1958 and fixed the Original Suit for hearing. Against the aforesaid order dated 14-4-1962, the Civil Revision has been filed.

2. Accuracy of the aforesaid facts relating to various proceedings has not been challenged before me. The defence case may also be stated in extenso. The defence case is that under the very terms of the agreement (Ex. 3), he was entitled to the balance sum of Rs. 12,500/- and the mortgage money of Rs. 11,000/,- was not agreed to be adjusted out of the amount. Despite the specific case made out by the defendant, proper issues had not been framed by the Court. The ex parte judgment dated 1-10-1958 decreeing the suit for specific performance of contract does not deal with the issues and does not even give the reasons whatsoever for the conclusion arrived at by the Court. As the learned Subordinate Judge while disposing of the suit, did not act in accordance with the provisions of Order 20, Rule 5, C. P. C., the judgment is not a judgment at all, it is a nullity and a judgment not supported by reasons cannot be accepted as legally binding on the parties. In this view of the matter, the suit, mentioned above, has not been properly disposed of. Neither the order dated 1-10-1958 nor the decree following it is valid and bind-ing on the parties to the suit, and such an order is either a mistaken or erroneous one -- the mistake or error being apparent on the face of the record. Due to the mistake or error committed by the Court by its order dated 1-10-1958, the defendant has been seriously prejudiced and even the agreement (Ex. 3) clearly mentions that the plaintiff is to pay the balance of Rs. 12,500/- at the time of taking the Kabala from the defendant. The Court without giving any reason whatsoever passed a decree depriving the defendant of the said sum of Rs. 12,500/- which the plaintiff has to pay before obtaining a decree. Unless the order dated 1-10-1958 and the decree following it in the aforesaid suit are reviewed the defendant would be greatly prejudiced.

3. The learned Subordinate Judge accepted the defence stand, allowed the application under Section 151, C. P. C., set aside the ex parte decree dated 1-10-1958 and restored the suit for trial. His conclusion is based on the finding stated in the following words :

'There is no doubt that grave injustice has been done to him by not appreciating the admitted suit agreement which is to the effect that Rs. 12,500/- has to be paid before selling the suit property to the plaintiff opposite party whereas the ex parte decree enables the plaintiff-opposite party to have the suit property for Rs. 1000/-'

4. Though the application dated 26-10-1961 filed by the defendant before the SubordinateJudge purported to be one under Section 151,C. P.C. the prayer was for review under Order 47,R. 1, C. P. C. The prayer may be quoted :

'The petitioner therefore prays that the order dated 1-10-1958 and the decree following it in T. S No. 17 of 1956 (1) of this Court be reviewed.'

The court-fee for review application under Order 47, Rule 1 was not paid. The learned Judge also did not consider and did not examine the review application with reference to the tests laid down in Order 47, Rule 1. There was no discovery of any new or important matter. Neither there is any mistake or error apparent on the face of the record. In Satyanarayan v. Mallikar-jun, AIR 1960 SC 137 their Lordships laid down that an error which has to be established by long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. In Kaushalya Devi v. Bachitar Singh, AIR 1960 SC 1168 their Lordships observed that errors in appreciation of documentary evidence or errors in drawing inference cannot be said to be errors of law. Words being the same in Order 47, Rule 1, C. P. C. identical construction is to be put to the meaning of these words. The application was rightly not treated to be one under Order 47, Rule 1, C. P. C. Mr. Pal also did not contend that there was any error apparent on the face of the record.

5. The only ground on which the ex parte decree has been set aside is that the Subordinate Judge (Sri U. N. Misra), while passing the ex parte judgment, did not properly appreciate the import and significance of the agreement (Ex. 3) : The learned Subordinate Judge Sri Sananda Naik appears to have considered himself as an appellate Court over his predecessor. It is not intelligible how Sri Naik entered into identical evidence and set aside the ex parte decree passed by his predecessor by taking a different view of the matter. Even if it is conceded that the conclusion arrived at by Sri Naik was a better conclusion on the materials on record, he had still no jurisdiction to set aside the express decree by taking a different view of the case on merits. In my view, he completely lacks jurisdiction as he was not sitting as an appellate Court. The inherent powers of the Court cannot be exercised for altering a judgment passed three years before when a Court finds that it is possible to come to a different conclusion on the identical evidence. The decree had reached finality and cannot be assailed in any other manner except as provided in the Code. That is entirely within the power of the appellate Court. The defendant also did not allege that any fraud was practised on the Court. Shri Naik illegally exercised jurisdiction in setting aside the ex parte decree.

6. The order of the learned Subordinate Judge is also otherwise vulnerable. When a party has another remedy open and the party does not adopt it or negligently fails to pursue it, the relief under Court's inherent powers under Section 151, C. P. C. may be granted on proof of exceptional or peculiar circumstances. Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527is an authority for the proposition that the provisions of the Code are not exhaustive as the Legislature is incapable of contemplating all possible circumstances which may arise in future litigation, and nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. But the inherent powers can never be invoked where the party pursued the other prescribed remedies for the same relief and failed to get the relief. In this case, against the ex parte decree, the defendant came even upto the High Court in different proceedings and failed to get the relief in the Misc. appeal and Civil Revision, already referred to. In such circums- tances, inherent power cannot be invoked in favour of the opposite party.

7. A point has been taken up in the application that the ex parte judgment passed by Sri U. N. Misra is not a judgment in accordance with Order 20, Rule 5, C. P. C. as the Court did not state its decision with reasons therefor upon each separate issue. There is no substance in this contention. The only dispute between the parties was whether Rs. 11,000/- advanced under the mortgages would be adjusted towards the sale price or the defendant was entitled to Rs. 12,500/- under Ex. 3 without any adjustment. This is the only issue to be litigated, and in an ex parte judgment while the Court definitely applied his mind to the facts with reference to the oral and documentary evidence and came to the conclusion that Rs. 11,000/- was to be adjusted and Rs. 1000/- was to be refunded, it cannot be said that reasons were not given for the finding. It is a matter of common knowledge that in ex parte cases, judgments are cryptic, evidence is barely referred to and hardly elaborate discussions are made. Merely from the fact of absence of elaborate discussion, as in contested cases, it cannot be said that the Court did not apply its judicial mind and did not appreciate the issue and evidence properly. Another Court might have come to a different conclusion; but on the ex parte evidence the Court was possibly more right in accepting plaintiff's version in preference to that of defenece which was not supported by any evidence. Sri Naik went out of his way to say that his predecessor did not apply his mind properly to the facts of the case.

8. The learned Subordinate Judge illegally exercised his jurisdiction in setting aside the ex parte decree.

9. The Civil Revision is allowed with costs throughout.

10. Hearing fee of Rs. 50/- (rupees fifty).


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