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Udayanath Panda Vs. Baikunthanath Routra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 304 of 1958
Judge
Reported inAIR1960Ori176
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 13 - Order 43, Rule 1
AppellantUdayanath Panda
RespondentBaikunthanath Routra
Advocates:R.N. Sinha, Adv.
DispositionRevision allowed
Cases ReferredMadan Lal v. Tripura Modern Bank Ltd.
Excerpt:
.....application under order 9, rule 13 on merits is appealable under clause (d) of order 43, rule 1, civil procedure code, it could as well be argued that the dismissal of the application for default is similarly appealable......munsif allowed the opposite party defendant's application under section 151 civil procedure code for restoration of a certain misc. case no. 274 oh 1956 hereinafter mentioned, which was dismissed for default.2. the matter arose in these circumstances: in 1953 the plaintiff filed a suit being title suit no. 104 of 1953 for partition of joint family properties. on 6-8-1954 a preliminary decree was passed ex parte for partition. thereafter the plaintiff filed an application for making the decree final. a commissioner of partition was appointed for making the allotment. in due course the commissioner tiled his report and allotment papers. on 12-7-1956 defendant no. 3 being the opposite party herein objected to the report of the commissioner on certain grounds. the hearing of the.....
Judgment:
ORDER

S. Barman, J.

1. The plaintiff is the petitioner in this civil revision directed against an order of the learned Munsif, 2nd Court, Cuttack, in proceedings arising out of Title Suit No. 104 of 1953, whereby the learned Munsif allowed the opposite party defendant's application under Section 151 Civil Procedure Code for restoration of a certain Misc. Case No. 274 oh 1956 hereinafter mentioned, which was dismissed for default.

2. The matter arose in these circumstances: In 1953 the plaintiff filed a suit being Title Suit No. 104 of 1953 for partition of joint family properties. On 6-8-1954 a preliminary decree was passed ex parte for partition. Thereafter the plaintiff filed an application for making the decree final. A Commissioner of Partition was appointed for making the allotment. In due course the Commissioner tiled his report and allotment papers. On 12-7-1956 defendant No. 3 being the opposite party herein objected to the report of the Commissioner on certain grounds. The hearing of the objections was fixed to be heard on 9-8-1956. On that date 9-8-1956 defendant No. 3 did not appear. Accordingly an ex parte final decree was passed. On 10-9-1956 defendant No. 3 filed an application for restoration under Order 9, Rule 13 Civil Procedure Code being Misc. Case No. 274 of 1956.

The said application for restoration (Misc. Cast) No. 274 of 1956) was adjourned for hearing on 20-4-1957. On 20-4-1957 the restoration application (Misc. Case No. 274 of 1956) was dismissed for default. On 17-6-1957 defendant No. 3 applied for restoration of the said application for restoration of the suit under Order 9, Rule 13 Civil Procedure Code made by him as aforesaid being Misc. Case No. 274 of 1956. The said application for restoration of Misc. Case No. 274 of 1956 made on 17-6-1957 as aforesaid was registered as Misc. Case No. 158 of 1957. On 29-8-1957, the second application for restoration, namely Misc. Case No. 158 of 1957 was allowed by the learned Munsif. Hence this revision.

3. Mr. R. N. Sinha, learned counsel appearing for the plaintiff-petitioner, contended that the learned Munsif had illegally restored the said earlier Misc. Case No. 274 of 1956. He further contended that the order made on 20-4-1957 dismissing the Misc. Case No. 274 of 1956 for default was an appealable order under. Order 43, Rule l(d) of the Civil Procedure Code. The opposite party (defendant No. 3) not having appealed the said order became final. The subsequent application for restoration being Misc. Case No. 158 of 1957 under Section 151 Civil Procedure Code for restoration of Misc. Case No. 274 of 1956 was not maintainable as the learned Munsif had no jurisdiction to restore the same. On this point the learned counsel cited before me a recent Full Bench decision of the Patna High Court in Doma Chaudhury v. Ram Naresh Lal, AIR 1959 Pat 121 where it was held that the appeal lies under Order 43 Rule 1 (c) or (d) from an order rejecting for default an application under Rule 9 and Rule 13 of Order 9 respectively because on a plain reading of Clauses (c) and (d) of Order 43, Rule 1, there is no ground for discriminating between rejection of an application on merits and its rejection for default. Order 9, Rule 13 Civil Procedure Code does not, in terms, provide for dismissal of the application cm merits just as much as it does not Provide tor dismissal of the application for default.

The right to dismiss, therefore, has to be gathered by necessary implication. In other words, if the Court is not so satisfied it should be 'a fortiori' held that the court can reject the application whether on merits or on account of default. The argument is based upon the principles that if the Court has power to allow the application on the terms of the section, it has necessarily the power also to reject it. If, therefore, it can be argued that the dismissal of the application under Order 9, Rule 13 on merits is appealable under Clause (d) of Order 43, Rule 1, Civil Procedure Code, it could as well be argued that the dismissal of the application for default is similarly appealable. This was exactly the view of Sarjoo Prasad C.J. in a Full Bench decision of the Assam High Court in Madan Lal v. Tripura Modern Bank Ltd. AIR 1954 Assam I where a large number of decisions of different High Courts were reviewed and discussed. That apart, Section 151 Civil Procedure Code under which the learned Munsif purported to have allowed the restoration of the earlier Misc. Case No. 274 of 1956, has not created any new power but has preserved the power to act in the ends of justice and to prevent abuse of the processes of the Court which the Court had been exercising from before.

The inherent power has been preserved in order to enable the Courts to deal with matters and situations which are not covered by any specific provision of the Code. It is, therefore, neither practicable nor desirable to define the limits or to enumerate the circumstances in which this power can be exercised. As, however, the power is, of necessity very wide the Courts have to be very cautious and vigilant in exercising it. It may also be safely laid down that the Court has no inherent power to override express provisions of the Code. Further, in the absence of some special circumstances which amount to abuse of the process of the Court, it cannot grant a relief in exercise of its inherent power when the ends of justice can be served by another remedy provided by the Code which is available to the party concerned. The mere fact that the procedure for following the other remedy may be longer or more costly will not entitle the Court to disregard this rule because its order will not be necessary either in the ends of justice or to prevent abuse of the process of the Court. Therefore, in the absence of special circumstances a court has no jurisdiction in exercise of its inherent power to set aside the dismissal for default of an application and to restore it. The ends of justice will be served if the applicant follows the remedy by way of appeal.

4. In this view of the position in law, aslaid down in the two Full Bench decisions of thePatna High Court and the Assam High Court citedabove with which, with great respect, I fully agree,the order of the learned Munsif cannot be upheld.The learned Munsif appears to have acted in exerciseof his jurisdiction illegally or material irregularity.Accordingly, I allow this revision, set aside theorder of the learned Munsif and dismiss the oppositeparty-defendant's said application for restorationbeing Misc. case No. 158 of 1957. The result, therefore, is that this revision is allowed with costs.Hearing fee Rs. 16/- (Rupees sixteen).


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