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Bahadur Pradhani Vs. Gopal Patel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 92 of 1962
Judge
Reported inAIR1964Ori134
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 115 and 151 - Order 7, Rule 11 - Order 9 - Order 47, Rule 1
AppellantBahadur Pradhani
RespondentGopal Patel
Appellant AdvocateH.G. Panda, Adv.
Respondent AdvocateR.N. Misra, Adv.
DispositionPetition dismissed
Cases ReferredSita Ram v. Kedarnath
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to 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..........latter date the court passed orders to the effect--'deficit court-fee not filed nor any requisites filed. plaintiff is absent on repeated calls. no steps taken by him. his pleader is also not present. . plaint is rejected for non-payment of deficit court-fee.'just a day after on 13th september 1961 the pleader for the plaintiff filed a petition for restoration of the suit under section 151 c. p. c. the pleader sri sidheswar sai himself filed an affidavit solemnly affirming that though he himself took the adjourned date for 12th september 1961, due to inadvertence he entered the date in his diary for 14th september 1961. as the mistake was purely of his own, he could not take steps on 12-9-1961 and that for the ends of justice the suit should be restored to file and that the party who had.....
Judgment:
ORDER

G.K. Misra, J.

1. Defendant is the petitioner. The facts leading to the Civil Revision may be stated in a narrow compass. Money suit No. 28 of 1961 in the Court of the Subordinate Judge of Bolangir was filed on 1st August, 1961 with deficit court-fee. Time was granted to pay the deficit court-fee till 24th August 1961 in the first instance and then again till 12th September 1961. On the latter date the Court passed orders to the effect--

'Deficit court-fee not filed nor any requisites filed. Plaintiff is absent on repeated calls. No steps taken by him. His pleader is also not present. . Plaint is rejected for non-payment of deficit court-fee.'

just a day after on 13th September 1961 the pleader for the plaintiff filed a petition for restoration of the suit under Section 151 C. P. C. The pleader Sri Sidheswar Sai himself filed an affidavit solemnly affirming that though he himself took the adjourned date for 12th September 1961, due to inadvertence he entered the date in his diary for 14th September 1961. As the mistake was purely of his own, he could not take steps on 12-9-1961 and that for the ends of justice the suit should be restored to file and that the party who had paid money to the lawyer to take steps would be highly prejudiced if the suit was not restored. This application was registered as Misc. Case No. 57 of 1961. The plaintiff filed court-fee of Rs. 194/-on 11-11-1961. The application under Section 151, C. P. C. was allowed and the suit was restored to file by an order dated 21st November 1961.

2. The defendant challenges this order dated 21-11-1961 restoring the suit. His case is that after serviceof notice In the suit, he appeared on 11th January 1961and on inspection of the record came to know the aforesaid state of affairs. After taking a copy of the orderhe has filed this Civil Revision.

3. By an order dated 3-5-1962 this court admitted the Civil Revision directing that the question of limitation would be taken up at the time of hearing. Mr. Misra concedes that no question of limitation arises as the Civil Revision has been filed within 90 days from the date of the knowledge of the defendant of the restoration order.

4. Mr. Panda contends that the order of restoration under Section 151, C. P. C. is without jurisdiction. This argument is based on, Rameshwardhari Singh v. Sadhu Saran, AIR 1923 Pat 354 and Saratchandra Sen v. Mritun-jay, AIR 1935 Cal 336 (2).

5. The basis of the aforesaid view requires examination. The order dated 12-9-1961 rejecting the plaint is one under Order VII, Rule 11 (c), C. P. C. which lays down that the plaint shall be rejected where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so. A decree shall be deemed to include the rejection of a plaint under Section 2(2) C. P. C. There can be no dispute that the order of the learned Subordinate Judge dated the 12th September 1961 rejecting the plaint is a decree.

6. The aforesaid decree is appealable and admittedly no appeal had been filed. Order XX Rule 3 C. P. C. prescribes that a judgment once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review. In this case there is no question of alteration or addition under Section 152 as there are no clerical or arithmetical mistakes in the order dated 12-9-1961 arising from any accidental slip or omission. No review application has been filed under Order XLVII, Rule 1, C. P. C.

7. The position that emerges is that though an appeal lies against the decree, an appeal has not been filed. Though a review application also lay to alter the judgment, none such has been filed. On the basis of the aforesaid authorities, it is contended by Mr. Panda that it is not open to the plaintiff to apply for restoration of the suit under Section 151, C. P. C. when the plaintiff did not resort to remedies by way of appeal or review specifically provided in the Code and that the inherent jurisdiction under Section 151 cannot be resorted to where there is specific provision in the Code to get the necessary reliefs.

8. It may be noted that even if the plaintiff had filed an appeal or an application for review, there was little likelihood of his getting any redress. If on a date fixed for payment of deficit court-fee the plaintiff did not pay the court-fee, the appellate Court has no materials on record to interfere with the order of rejection of the plaint. What was the sufficient cause for default on the part of the plaintiff for not taking proper steps on the date of dismissal is not supported by any evidence so as to be examined by the appellate Court. The result is that even though the decree is appealable, there is hardly any scope for getting any relief in the appeal. There is also little scope for getting any redress in a review application. The prayer for review must satisfy the necessary tests prescribed in Order XLVII, Rule 1, C. P. C. which are generally very rigorous.

9. The vital question that needs consideration is if the plaintiff is precluded from resorting to reliefs under Section 151 C. P. C. if he has not filed an appeal or asked for reliefs prescribed under Order 20 Rule 3 C. P. C. There are different opinions amongst the High Courts in India as to the applicability of Section 151 when there are specific provisions in the Code with regard to particular reliefs sought. In a recent decision of the Supreme Court reported in Manohar Lal v. Seth Hiralal, AIR 1962 SC 527 their Lordships held that Section 151 itself says that 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.

In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognises the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code. 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 consequently may provide procedure for them. In the face of the aforesaid decision of the Supreme Court, it is difficult to uphold the Patna and Calcutta views as laying down good law. Those authorities lay down the contrary view which had been specifically overruled by the Supreme Court. In my view, Section 151 is applicable to the facts of this case.

10. The provisions of Order IX have no application to the facts of this case. If Section 151 does not apply, the result would be that the plaintiff would be completely deprived of all remedies to bring to the notice of the Court the fact that for any sufficient reason he was unable to attend the Court or to take necessary steps. It is only by way of an application under Section 151, these matters should be brought to the notice of the Court, and if the Court would so require, the plaintiff would Be called upon to establish the same. In my view, the correct approach is to be found in Sita Ram v. Kedarnath, AIR 1957 All 825. There their Lordships held that the Courts have got the jurisdiction to recall an order which has been made earlier in the suit and that the Court has, always the power to recall an order which has the effect of perpetrating an injustice on a party. It is open to the Court to reconsider its order refusing to grant further time to the plaintiff to make good the deficiency which was made on the assumption that the sufficient cause stated by the plaintiff was not genuine.

It can recall when it is found that the order had been made in the absence of materials on record, materials which are subsequently put to the Court. Once the order itself is withdrawn, then the order rejecting the plaint automatically falls. The order dated 12-9-1961 could not have taken notice of the fact as alleged in the affidavit of Sri S. Sai as to how due to an inadvertent mistake no steps could be taken. Such a matter cannot be brought to the notice of the Court appropriately and effectively except by way of an application for restoration under Section 151 C. P. C.

11. There is another broad principle why this order of restoration of the suit should not be interfered with in revision. The revisional powers are discretionary. It is consistently held that the revisional powers should not be exercised in a case where the exercise of the power is likely to cause injustice to a party. If the discretion is used to interfere with the order, the suit is to be dismissed and the plaintiff would have no opportunity to get his case investigated into by the Court, Once the trial Court has exercised the discretion in favour of the party, it would be unusual for the High Court to interfere with the exercise of discretion unless it is injudiciously exercised.

12. The revision fails and is dismissed; but is the circumstances, parties to bear their own costs.


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