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Balaram Naik and ors. Vs. Krushna Kumari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 106 of 1974
Judge
Reported inAIR1975Ori178
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 7, Rule 11
AppellantBalaram Naik and ors.
RespondentKrushna Kumari
Appellant AdvocateB.H. Mohanty, Adv.
Respondent AdvocateM. Patra, Adv.
DispositionPetition dismissed
Cases ReferredDamodar Prasad v. Aditya Maharaj
Excerpt:
.....the past conduct of the petitioner no. seth hiralal, air 1962 sc 527, has clearly stated that the inherent powers of the court are in addition to the powers specifically conferred on the court by the code. their lordships, however, proceeded to caution that the inherent powers are to be exercised by the court in very exceptional circumstances for which the code lays down no procedure. fakir chand khandelwalia, (1972) 38 cut lt 519). thus, even if the order rejecting the plaint for non-payment of deficit court-fee is, appealable as a decree, nevertheless, the court can restore the suit if satisfied that the plaintiff was physically unable to pay the deficit-court-fee on grounds of illness notwithstanding availability of alternative remedy by way of appeal. but, in my opinion, the view..........in the case of manohar lal chopra v. seth hiralal, air 1962 sc 527, has clearly stated that the inherent powers of the court are in addition to the powers specifically conferred on the court by the code. they are complementary to those powers and therefore it must be held that the court is free to exercise them for the purposes mentioned in section 151, civil p. c. when the exercise of those powers is not in any way in conflict with what has been expressly provided for in the code or against the intention of the legislature. their lordships, however, proceeded to caution that the inherent powers are to be exercised by the court in very exceptional circumstances for which the code lays down no procedure. their lordships of the supreme court in the case of arjun singh v. mohindra kumar,.....
Judgment:
ORDER

S.K. Ray, J.

1. The petitioners filed Money Suit No. 144 of 1973 in the court of the Munsif, Jajpur for recovery of Rs. 2,046.06. They filed their plaint with deficit court-fee and took time to pay the balance. Time was granted till 12-7-1973 for payment of court-fee. In default of payment of court-fee on 12-7-1973 the plaint was rejected under O. 7, Rule 11, Civil P. C.

2. The petitioners thereafter filed an application under Section 151, Civil P. C. for recalling the order dated 12-7-1973 and to permit them to pay the deficit court-fee. This petition of theirs was registered as Misc. Case No. 147 of 1973. The ground shown for recalling the order was that the petitioner No. 1 Balaram Naik was looking after the case on behalf of all the petitioners in the trial court and he fell ill with filarial fever and become completely immobile four days before the date fixed for payment of court-fee and in consequence of such illness he was not able to take steps for payment of court-fee on the scheduled date.

3. The petitioner No. 1 examined himself and one witness in proof of his illness since 8-7-1973 till 12-7-1973. Though the learned Munsif was inclined to accept this plea of illness, nevertheless, he refused to recall the order rejecting the plaint on the sole ground that the petitioner No. 1 failed to show that he took any steps for payment of court-fee between 12-5-1973 and 7-7-1973; in other words, in determining whether there was sufficient cause for the default on the material date, he took into account the past conduct of the petitioner No. I. Being aggrieved with the aforesaid order of dismissal of the petition under Section 151, Civil P. C. the present revision application has been filed.

4. This revision petition was filed on 6-3-1974, 5 days beyond the expiry of the period of limitation. A petition under Section 5 of the Limitation Act was also filed along with this revision application for condonation of delay. By order dated 27-3-1974 notice on the question of admission and hearing was directed to be issued. The question of limitation was also directed to be considered at the time of admission. The revision petition was heard on merits with the consent of parties as also on the question of limitation.

Mr. Patra for the opposite party has filed a counter to the petition under Section 5 of the Limitation Act and has also raised a preliminary point that the petition for restoration under Section 151, Civil P. C. was not maintainable in law.

5. I will now proceed to examine the merits of Mr. Patra's contention as regards the maintainability of the petition under Section 151, Civil P. C. This section provides :--

'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

The Supreme Court in the case of Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527, has clearly stated that the inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purposes mentioned in Section 151, Civil P. C. when the exercise of those powers is not in any way in conflict with what has been expressly provided for in the Code or against the intention of the Legislature. Their Lordships, however, proceeded to caution that the inherent powers are to be exercised by the court in very exceptional circumstances for which the Code lays down no procedure. Their Lordships of the Supreme Court in the case of Arjun Singh v. Mohindra Kumar, 1964 SCC 715 = (AIR 1964 SC 993), have proceeded to lay down the following dictum :

'It is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be predicated that a Court has the inherent jurisdiction which is saved by Section 151, Civil Procedure Code. It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is common ground that 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.'

It appears from the aforesaid principles laid down by the Supreme Court that it is always permissible for the court to exercise its inherent powers under Section 151, Civil P. C. for the ends of justice in the matter, provided such exercise of power does not conflict expressly or impliedly with any provisions of the Civil P. C. in respect of the self-same matter. It seems to follow that where an order is passed by a court, which is appealable, in consequence of which a suit is dismissed, the same may be recalled or revised and the suit restored in exercise of inherent powers of the court for the ends of justice, because specific provision for an appeal is not a provision which can be said to be overridden by or be said to be in conflict with Section 151 so as to prohibit exercise of inherent power of the court in recalling the order for the purpose of restoring the suit. This view was adopted by this court in the case of Kunjabehari Das v. Chanchala Das, 31 Cut LT 769 = (AIR 1966 Orissa 24) In this case an ex parte decree was passed against the defendant. He filed an application under Order 9, Rule 13 which was also dismissed for default. An application was filed under Section 151, Civil P. C. for setting aside the said order of dismissal. The order of dismissal of the petition for restoration under Order 9, Rule 13 is appealable under Order 43, Rule 1 (c) or (d). Nevertheless, this court held that mere availability of an alternative remedy by way of appeal would not by itself debar exercise of the inherent powers of the court under Section 151, Civil P. C. This view was also accepted in another case of this court (Nanak Chand Khandelwalia v. Fakir Chand Khandelwalia, (1972) 38 Cut LT 519). Thus, even if the order rejecting the plaint for non-payment of deficit court-fee is, appealable as a decree, nevertheless, the court can restore the suit if satisfied that the plaintiff was physically unable to pay the deficit-court-fee on grounds of illness notwithstanding availability of alternative remedy by way of appeal. It is clear that if a plaintiff appeals from the order of rejection of the plaint, there will be no material on record to satisfy the appellate court that he was ill and was accordingly, unable to pay the court-fee. The plaintiff would be without any means of bringing those facts to prove sufficiency of cause. for his default in carrying out the court order on due date. Order 9 does not apply and there is no other specific provision in the Code which would entitle the plaintiff to plead his illness for recalling the order of rejection of the plaint and for being permitted to pay the deficit court-fee. This is just to meet situations of this nature that inherent powers of the court under Section 151, Civil P. C. are invoked for ends of justice.

In the case of Damodar Prasad v. Aditya Maharaj, AIR 1972 Pat 289, the plaint was rejected for non-payment of the court-fee. An application was filed under Section 151, Civil P. C. for restoration of the suit. It was held that such a petition was maintainable.

There are, of course, decisions which take a contrary view; but, in my opinion, the view taken ,by this Court in earlier cases appears to be the better view. Courts in the country exist for administration of justice, which is their paramount consideration, not of technicalities. Nothing short of express provision limiting such powers should be permitted to whittle down the scope and amplitude of the inherent powers envisaged under Section 151, Civil P. C. In my opinion, the preliminary point raised by Mr. Patra must fail.

6. It has been settled by the Supreme Court that while considering the sufficiency of cause for the default on a particular date the court should not be swayed by considerations of past neglect or conduct of the party who is showing cause for his default. In view of this principle, the learned Munsif was obviously wrong, after being satisfied about the illness of the petitioner No. 1 for a period of 3 to 4 days prior to the date on which the deficit court-fee was to be paid, to still refuse to give relief on the sole ground of his previous inactivity. If the matter rested here, I would have had no hesitation in quashing the order refusing to recall the order dated 12-7-1973 and consequentially also the order rejecting the plaint and in directing him to fix a time for payment of court-fee.

7. The revision petition itself, however, is barred by limitation. The petition under Section 5 of the Limitation Act has stated the cause for the delay in para 3 thereof as follows :--

'That Balaram Naik petitioner No. 1 was looking after the suit out of which this Revision arises for himself and for other petitioners who are his brothers in the Trial court. While he was preparing to come to Cuttack in connection with the filing of the Revision, he fell ill on 20th February, 1974 and has been suffering from fever and various other complications since then. He has not yet recovered and is lying bed ridden. So far the other two petitioners are concerned, they are innocent villagers and are not aware of the litigation affairs. It is on account of this, the Revision could not be filed in time and there has been delay of about 6 days in filing this revision. The said Balaram Naik is under medical treatment and a certificate from his attending physician will be filed later on......

On the aforesaid ground, delay is sought to be condoned. This petition was sworn to by petitioner No. 2. Counter was filed by the opposite party. The averments in para 3 of the petition for condonation of delay was stoutly denied in the counter. This counter was filed on 4-11-1974, and a copy of it was also served on the counsel for the petitioners that very day. About 24 days later, hearing on the question of limitation as well as on merits took place on 28-11-1974. But the petitioners never filed the medical certificate as undertaken in their petition under Section 5 of the Limitation Act. In absence of such medical certificate the grounds for condonation of delay cannot be said to have been made out. It must, therefore, necessarily be held that the petitioners have failed to show sufficient cause for condonation of delay. In the circumstances, the petition is bound to be dismissed as barred by limitation.

8. In the net result, the petition is dismissed, but in the circumstances without costs.

9. Revision dismissed without costs.


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