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Harihar Pati Vs. Dyetary Khhtoi and Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 514 and 515 of 1980
Judge
Reported inAIR1984Ori138; 57(1984)CLT290
ActsOrissa Money-Lenders Act, 1939 - Sections 18B, 18B(2) and 18B(8); Orissa Money-Lenders (Amendment) Act, 1975; Code of Civil Procedure (CPC) , 1908 - Sections 151
AppellantHarihar Pati
RespondentDyetary Khhtoi and Etc.
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateN.G. Mohanty, Adv.
DispositionRevision allowed
Cases ReferredVyasaraju Badarinarayana Moorty Raju v. State of Orissa.
Excerpt:
.....banik, 1996 (2) glt 246, are not good law]. - in other words, there may be cases in which the money-lender himself is responsible for not obtaining the required order under sub-section (2) of section 18-b of the act and also cases where in spite of all his best efforts, he cannot produce the said order before filing of the suit or before the court takes up the matter for consideration......the learned munsif by his order dated 16-5-1980 has rejected the petition for restoration of the suit filed under section 151 of the code on the ground that the application for obtaining the certificate must have been filed after the suit had abated and no relief under section 151 of the code is, therefore, available in the case.3. civil revision no. 315 of 1980 arises under similar circumstances the petitioner filed o. s. no. 326 of 1976-iii before the munsif, puri, or realisation of rs. 1500/- which was advanced to the defendant-opposite party as loan. on 28-3-1977 the learned munsif observed that the service of summons on the defendant was sufficient and as he did not appear or take any steps, he was set ex parte. on the said date, the learned munsif also observed that as the.....
Judgment:
ORDER

P.C. Misra, J.

1. Both these revision applications involved identical questions of law and have, therefore, been heard analogously and are disposed of by this common judgment.

2. Civil Revision No. 514 of 1980arises out of O. S. No. 83 of 1976-11 ofthe Court of the Munsif, Puri, for realisation of Rs. 1286/- from the oppositeparty-defendant advanced to him asloan. The defendant took several adjournments to file the written statementand when no written statement wasfiled, the learned Munsif ultimately posted the case to 21-3-1977 for ex partehearing and directed the plaintiff to filethe required certificate under Section 18-Bof the Orissa Money-Lenders Act, 1939(for short, 'the Act'). On the adjourneddate, the plaintiff did not file the certificate under Section 18-B of the Act andthe learned Munsif passed an order thatthe suit had abated. The present petitioner thereafter filed, a petition under Section 151 of theCode of Civil Procedure (for shortthe Code') for restoration of the suit after obtaining the certificate under Section 18-B of the Act which was registered as Misc. Case No. 130 of 1979. The learned Munsif by his order dated 16-5-1980 has rejected the petition for restoration of the suit filed under Section 151 of the Code on the ground that the application for obtaining the certificate must have been filed after the suit had abated and no relief under Section 151 of the Code is, therefore, available in the case.

3. Civil Revision No. 315 of 1980 arises under similar circumstances The petitioner filed O. S. No. 326 of 1976-III before the Munsif, Puri, or realisation of Rs. 1500/- which was advanced to the defendant-opposite party as loan. On 28-3-1977 the learned Munsif observed that the service of summons on the defendant was sufficient and as he did not appear or take any steps, he was set ex parte. On the said date, the learned Munsif also observed that as the plaintiff had not filed the required certificate under Section 18-B of the Act, the suit stood abated. The plaintiff on 27-2-1979 filed an application under Section 151 of the Code which was registered as Misc Case No. 129 of 1979 praying therein for setting aside the order of abatement passed on 28-3-1977. He stated that he had in the meantime obtained the certificate and had produced the same in the court. The learned Munsif on similar ground has rejected the prayer for setting aside the order of abatement.

4. The plaintiff in both the suits is the same whereas the defendants are different. It is against the orders of the learned Munsif refusing to set aside the orders of abatement that the aforesaid two revision applications have been filed in this Court.

5. Section 18-B of the Act was inserted by Orissa Act 54 of 1975 and the same applies to the suit transactions in both the suits. Section 18-B provides that the State Government may, from time to time by notification, require the money-lender or money-lenders belonging to any class or carrying on business in any local area to produce before such authority and by such date, as may he specified in the said notification, all records relating to their business including documents evidencing advance of loans. Admittedly, the State Government has in its notification dated 9-7-1976 directed that all registered moneylenders carrying on business in the areas specified in the notification shall produce records relating to their business including the documents evidencing advance of loans before the respective Sub-divisional Officers within a month from the date of publication of the notification in the Official Gazette. The said notification was published in the Official Gazette on 34-7-1976. S. O. No. 83 of 1976 was filed on 15-4-1976 and, therefore, the notification and the requirements thereunder came into operation during the pendency of the suit whereas O. S. No. 326 of 1976 was filed on 23-12-1976 after the notification was operative. In both the cases, the plaintiff was required to follow the procedures prescribed under Section 18-B of the Act. Section 18-B further provides that the authority specified in the notification shall scrutinise the documents with a view to determining if the transactions exceed the amount for which the money-lenders have obtained the registration certificate and shall pass an order declaring the particulars of transactions that are within the amount specified in the certificate. Sub-section (8) of Section 18-B of the Act is to the effect that no court shall entertain any claim in respect of any loan advanced prior to the date of the order referred to in Sub-section (2) of Section 18-B unless the particulars thereof are contained in the said order, and all suits in respect of such claims shall stand abated. The plaintiff being a registered money-lender, the notification dated 9-7-1976 was applicable to him and non-compliance thereof would result in the abatement of the suit. The trial court was, therefore, justified in directing the suits to have abated for non-filing of the certificates/orders passed under Section 18-B of the Act by the specified authority.

6. The question that arises for consideration in these revisions is as to whether the orders of abatement passed by the trial court should have been set aside in exercise of the powers under Section 151 of the Code.

7. It may be noted that Section 18-B of the Act though makes no provision for setting aside the order Pf abatement passed by a court under Sub-section (8) thereof, there may be several situations justifying non-filing of the order under Sub-section (2) by the money-lender for which the suit would stand abated. There may be cases where even though an order under Sub-section (2) has been obtained, the same could not be filed in court before the order of abatement was passed. There may also be cases, where even though all requisites have been submitted before the specified authority, the matter might be lying with the specified authority without being disposed of in which case the moneylender cannot wait for obtaining the order and then file the suit as the limitation for filing of the suit will not be extended. There may be cases where the order under Sub-section (2) of Sec, 18-B of the Act is erroneous for which an appeal is pending before the appellate authority. In other words, there may be cases in which the money-lender himself is responsible for not obtaining the required order under Sub-section (2) of Section 18-B of the Act and also cases where in spite of all his best efforts, he cannot produce the said order before filing of the suit or before the court takes UP the matter for consideration. There being no other remedy available to the plaintiff, it cannot be doubted that the inherent power under Section 151 of the Code is available to be exercised to meet the ends of justice.

The Supreme Court in the case of Jaipur Mineral Development Syndicate v. Commr. of I.T. New Delhi, AIR 1977 SC 1348, has found it difficult to subscribe to the view that whatever may be the ground for non-appearance of a party, the High Court, having once passed an order because of the non-appearance of the party, is functus officio or helpless and cannot pass an order for disposing of the case on merits. It has also been said that the Court in suitable cases has inherent power to recall the order passed by it previously. There being no prohibition, express or implied, in the Statute under which the order of abatement has been passed, the court can always pass an order which is necessary for the ends of justice or to prevent the abuse of the process of the court by exercising its inherent power. Otherwise, there will be gross miscarriage of justice.

A Full Bench of the. Patna High Court in the case of Bairang Rai v. Ismail Mian, AIR 1978 Patna 339, has laid down that the inherent powers of the Court are very wide and they are not controlled by the provisions of the Code. They are in addition to the powers specifically conferred on the Court by the Code and the Courts are free to exercise the said powers. The only limitation put on the exercise of the inherent powers is that when exercised, they are not in conflict with what has been expressly provided for, or those exhaustively covering a particular topic, or against the intention of the Legislature. As already stated, there is no provision in the Act for setting aside the order of abatement passed in the suit and, therefore, the Court should exercise inherent power in setting aside the order of abatement in suitable circumstances.

Mr. Mohanty appearing for the opposite parties in both the cases has placed reliance on a Full Bench decision of this Court in the case of Srinibas Jena v. Janardan Jena, AIR 1981 Orissa 1, wherein the Court has opined that abatement of a suit is a complete termination of the same and the same does not survive at all. There is no dispute over the said dictum but that cannot be used as an authority for the proposition that the Court has no jurisdiction to recall or set aside an order of abatement under any circumstances.

8. Taking into consideration the decisions cited at the Bar, I am of the view that the inherent powers of the court are available to be exercised in fit cases for setting aside an order of abatement of a suit which has abated under Sub-section (8) of Section 18-B of the Act. As a matter of fact, in various decisions this Court has proceeded to examine as to whether the circumstances of the case justify the exercise of inherent powers for setting aside the order of abatement.

9. The next question that falls for consideration is as to whether these are fit cases where the inherent powers of the Court should be exercised for setting aside the orders of abatement. It is clear from the records of the court below that adequate opportunity had not been extended to the plaintiff for producing the order under Section 18-B (2) of the Act. In O. S. no. 83 of 1976 the defendant was set ex parte on 9-2-1977 on which date the trial court directed the plaintiff to produce the required certificate under Section 18-B of the Act on 21-3-77. On 21-3-77 the trial court dismissed the suit for want of requisite certificate. In O.S. No. 326 of 1976, the suit was dismissed on 28-3-77 which was not the date fixed for hearing. The Act was amended by Orissa Act 54 of 1975 which came into force with effect from 22-9-75. The said Amending Act puts further restriction on the money-lenders and by the dates when the suits were dismissed, the Amending Act had not gained sufficient publicity to be too rigidly applied. Even after the introduction of Section 18-B in the Act by way of amendment, the notification thereunder was not made for quite some time and in these circumstances, adequate opportunity should have been extended to the plaintiff for production of the requisite certificate before the suits were held to have abated under Section 18-B (8) of the Act. As a matter of fact, no application was required to be filed by the money-lender in pursuance of the amended provision of the Act and the notification. All that the money-lenders were required to do was to produce all records relating to their business including documents evidencing advance of loans before the specified authority within the stipulated period.

Mr. Mohanty appearing for the opposite parties has strenuously contended that the period fixed in the notification being statutory the same cannot be extended by the specified authority and any application filed beyond the said period is not entertain able in law. Consequently, according to his contention, the certificate obtained under a time-barred application is a nullity and should not be taken into consideration by the court. He has placed reliance on a Division Bench decision of this Court in the case of Vyasaraju Badarinarayana Moorty Raju v. State of Orissa. (1981) 52 Cut LT 249 : (AIR 1981 Orissa 180) wherein it has been held that this being a beneficial legislation for the loanees, the period fixed for compliance in the notification excluded the scope for extension of time by necessary implication. In these cases, however, it is not known as to when the plaintiff had produced the records and the documents before the specified authority and as to whether the principles enunciated in the aforesaid decision would apply to the facts of these cases, The trial court has rejected the applications for setting aside the orders of abatement on the assumption that the plaintiff-petitioner had applied for the certificates after the suits had abated. I have already indicated that no certificate need be applied for under the provisions of Section 18-B of the Act. All that the money-lender is required to do is to submit the accounts and documents for scrutiny of the specified authority whereupon the specified authority is to pass an order declaring the particulars of transactions that are within the amount specified in the registration certificates. The trial court has not at all embarked upon any enquiry in this behalf. This amounts to non-exercise of the jurisdiction which was vested in the court.

10. I, therefore, allow both the revisions, set aside the impugned orders in both the revision applications and hold that the applications under Section 151 of the Code for setting aside the orders of abatement were maintainable and remand the cases to the trial court for reconsideration as to whether the circumstances of the case justify the discretion to be exercised for setting aside the orders of abatement.

11. It appears from the records of the court below that in the misc. cases under Section 151 of the Code the defendants were not noticed because of the fact that they were set ex parte before the suits had abated. By abatement of the suits which amounts to termination of the litigations against the plaintiffs, a right is created in favour of the defendants. Therefore, in the misc. cases under Section 151 of the Code, the defendants are entitled to a notice to contest the prayer of the plaintiff-petitioner. I, therefore, direct that the defendants-opposite parties should be noticed and heard while deciding the misc. cases under Section 151 of the Code. Since there has been considerable delay due to the pendency of the civil revisions. I direct the learned trial Judge to dispose of the misc. cases with utmost expedition.

There would be no order for costs in both the revision applications.


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