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Sudhansu Mishrani and ors. Vs. Subal Mishra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 459 of 1980
Judge
Reported inAIR1984Ori205; 1984(I)OLR348
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 13
AppellantSudhansu Mishrani and ors.
RespondentSubal Mishra
Appellant AdvocateN.C. Pati, Adv. for ;P.K. Misra, Adv.
Respondent AdvocateS.C. Mohapatra, ;M.R. Mohanty and ;N.C. Patnaik, Advs.
DispositionRevision allowed
Cases ReferredAnanda Behera v. Nilkamal Behera
Excerpt:
.....said matter. agro sales and service). the full bench relying on several decisions of the supreme court and other high courts came to hold :the principles that once statutory privision has been made to cover a given field, application of inherent powers would stand regulated and in case statutory law covers the entire field, application of inherent powers would stand excluded appear to have been well recognised......this revision petition challenging the order of the subordinate judge sonepur setting aside the ex parte decree in money suit no. 7/18 of 1977-78.2. late kumar mishra filed the suit for realisation of rs. 3,000/- towards damages on account of malicious prosecution against the defendant. the said suit was decreed ex parte by the order dated 28-4-78 of the learned subordinate judge. the defendant filed an application under order 9, rule 13, c. p. c. for setting aside the ex parte decree which was numbered as misc. case no. 22 of 1978. the gist of his case as stated in the petition is that he is a brahmin who earns his livelihood by begging and he was absent in the village during the period from the months of kartik to falguna of the year 1977 and he went to fuljhar side in madhya pradesh.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. The legal representatives of the original plaintiff, Kumar Misra, have filed this revision petition challenging the order of the Subordinate Judge Sonepur setting aside the ex parte decree in Money Suit No. 7/18 of 1977-78.

2. Late Kumar Mishra filed the suit for realisation of Rs. 3,000/- towards damages on account of malicious prosecution against the defendant. The said suit was decreed ex parte by the order dated 28-4-78 of the learned Subordinate Judge. The defendant filed an application under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree which was numbered as Misc. Case No. 22 of 1978. The gist of his case as stated in the petition is that he is a Brahmin who earns his livelihood by begging and he was absent in the village during the period from the months of Kartik to Falguna of the year 1977 and he went to Fuljhar side in Madhya Pradesh for begging purposes. The petitioner further stated that he was not tendered any summons in the suit and therefore there was no question of refusal of summons by him. He alleged that the plaintiff with the connivance of the Process Server manipulated to get an endorsement on the back of the summons to the effect that he refused to accept the same. Having come to learn about the ex parte decree in the village he filed the petition for setting aside the same.

The plaintiff in his objection to the application under Order 9, Rule 13, C. P. C. denied the allegations of the defendant. He asserted that the plaintiff does not live by begging. He owns and possesses more than four acres of cultivable lands and gets annual yield of 28 pudugs of paddy besides other Rabi crops, He also denied the allegation that the plaintiff was absent from the village from the month of Kartik to Falguna, 1977 having gone to Fuljhar side in Madhya Pradesh for the purpose of begging. He, however, stated that even if the absence of the plaintiff during this period is accepted it is not relevant for the purpose of the case. He asserted that the summons in the suit were duly tendered to the defendant who refused to accept the same. The original plaintiff Kumar Mishra having died during the pendency; of the Misc. case, his legal representatives, the petitioners in the revision petition, were substituted in his place.

3. The learned Subordinate Judge on a consideration of the evidence adduced by both the parties did not accept the case of the defendant that he was not tendered with the summons in the suit by the Court peon. But the learned Subordinate Judge allowed the Misc. case and set aside the ex parte decree exercising his inherent power under Section 151, C. P. C. on the consideration that the amount claimed in the suit for malicious prosecution is heavy. The relevant portion of the order is quoted hereunder:--

'Perused the decision cited by him referred above and taking into consider ration of the fact that the amount claimed in the suit is heavy as damages for malicious prosecution, I feel that this is a fit case where the inherent power under Section 151, C. P. C. can be exercised to do justice even though the requirement of sufficient cause as provided under Section 9 Rule 13 C. P. C. is not complied witfy Accordingly, it is ordered'.

The learned Court relied on a decision of this Court reported in (1976) 42 Cut LT 1061 (Bhagwandas Bajoria v. E. L. D. Parry Ltd.).

4. Shri N. C. Pati, the learned counsel for the petitioners contends that the Subordinate Judge having held that the requirement of sufficient cause as provided under Order 9 Rule 13, C. P. C, is not complied with, had no jurisdiction to exercise-inherent power, under Section 151, C. P. C. to set aside the ex parte decree. He further contends that the heavy claim in the suit which has weighed with the learned Court below is wholly irrelevant for the purpose of determining whether the case is a fit one to set aside the ex-parte decree. Both these contentions are well founded.

5. The finding of the learned Court below that the defendant has failed to make out a case under Order 9 Rule 13, C. P. C. is not seriously challenged before me. Indeed there is hardly any scope for interfering with the finding of fact in exercise of revisional jurisdiction. The principle is now well recognised that when there is specific provision in the Code covering a particular matter, inherent power is not available to be exercised in respect of the said matter. The decision of the learned single Judge on which reliance was placed by the learned Subordinate Judge has been reversed by the Full Bench and the case is reported in (1980) 50 Cut LT 419 : (AIR 1980 Orissa 162) (E. I. D. Parry Limited v. Agro Sales and Service). The Full Bench relying on several decisions of the Supreme Court and other High Courts came to hold :--

'The principles that once statutory privision has been made to cover a given field, application of inherent powers would stand regulated and in case statutory law covers the entire field, application of inherent powers would stand excluded appear to have been well recognised.'

As such, there is little doubt that the learned Court below fell into an error in exercising his power under Section 151, C. P. C. in the facts and circumstances of the case.

Regarding the contention that valuation in the suit is immaterial for the purpose of determining the question whether it is a fit case for exercise of jurisdiction under Order 9 Rule 13, C. P. C. reliance has been placed on the decision reported in AIR 1975 Orissa 173 C-Ananda Behera v. Nilkamal Behera) wherein it has been held that the Court has no jurisdiction to set aside the ex parte decree, after finding that the grounds envisaged under the entire section were not proved, on compassionate ground that the suit is of high valuation.

6. In view of the discussion made above it is clear that the impugned order of the Subordinate Judge suffers from patent jurisdictional errors and it is not sustainable.

In the result, the Civil Revision succeeds and it is allowed. The order of the Subordinate Judge, Sonepur dated 28-4-1980 in M. J. C. No. 22/78 is set aside and the ex parte decree in M. S. No. 7/18 of 1977-78 is allowed to stand.

In the circumstances of the case, there will be no order for costs.


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