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Purna Chandra Dash Vs. Smt. Bishnu Priya Mohapatra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 710 of 1983
Judge
Reported in1984(II)OLR673
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 43, Rule 1
AppellantPurna Chandra Dash
RespondentSmt. Bishnu Priya Mohapatra
Appellant AdvocateD.P. Sarangi
Respondent AdvocateR.K. Mohapatra
DispositionPetition dismissed
Cases Referred(Bajrang Rai and Ors. v. Ismail Mian and Ors.).
Excerpt:
.....it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - as the opposite party failed to appear on the date fixed in spite of due service of notice, the ad interim order of injunction was made absolute on 15.1.1983. subsequently, the opposite party filed a petition under section 151, civil procedure code, praying for recalling the order dated 15. 1. 1983 passed in her absence and the same numbered as misc. it is well settled that in a case where a particular order of the court is appealable still the court can set aside the same in exercise of its inherent power in order to do justice to the aggrieved party......of the evidence before him and there is no scope for interference with the same. on the question of maintainability, as already discussed above, the contention of shri sarangi that the petition under section 151, c. p. c, was not maintainable is without force. further all that the court below has done is to provide an opportunity to the opposite party to have her say on the order of ad interim injunction passed against her. the petitioner is not seriously prejudiced by the impugned order since the final order will be passed on hearing both the parties.5. on the above analysis, the civil revision is devoid of merit and the same is dismissed, but in the circumstances without costs of this proceeding. since the matter has already been delayed, i direct the parties to appear before the.....
Judgment:

D.P. Mohapatra, J.

1. The order dated 20th of September, 1983 by the Subordinate Judge, Puri, allowing the application of the opposite party for recalling the order making ad interim order of injunction absolute in her absence, is impugned in this case.

Since the scope of the revision petition is very limited it is not necessary to recite in detail the facts of the case and the background leading to the litigation. Suffice it to say that the petitioner filed O. S. No. 280 of 1982 in the Court of the Subordinate Judge, Puri, praying for declaration of his right as a tenant, confirmation of his possession and for a direction that the opposite party should not evict him from the suit house without taking recourse to Orissa House Rent Control Act. In the said suit the petitioner filed an application under Order 39, Rules 1 and 2, Civil Procedure Code, for grant of injunction against opposite party, not to disturb his possession over the suit house. The said application was numbered as Misc. Case No. 231 of 1982. The Subordinate Judge on hearing the petitioner passed an ad interim order of injunction restraining the opposite party from disturbing the physical possession of the petitioner over the suit house and fixed 15. 1. 1983 for show cause. As the opposite party failed to appear on the date fixed in spite of due service of notice, the ad interim order of injunction was made absolute on 15.1.1983.

Subsequently, the opposite party filed a petition under Section 151, Civil Procedure Code, praying for recalling the order dated 15. 1. 1983 passed in her absence and the same numbered as Misc. Case No- 25 of 1983. In the said application she averred that she could not take steps on 15. 1. 1983 as her elder son who was looking after the case was unavoidably absent having gone to Cuttack to appear in a Criminal Case and she was bed ridden with high blood pressure and fever. The application was accompanied by a medical certificate (Ext. A). The petitioner in his objection to the said application denied the averments regarding the absence of her son and her illness. He also challenged the maintainability of the petition under Section 151, C. P. C. since the order dated 15. 1. 1983 making the ad interim order of injunction absolute was appealable under Order 41, Rule 1(k), C. P. C. The opposite party examined two witnesses in support of her application and produced some documents including the medical certificate, No witness was examined on behalf of the petitioner.

2. The learned Subordinate Judge on appreciation of the materials produced before him allowed the petition filed by the opposite party and set aside the order, dated 15.1.1983, in Misc. Case No. 281 of 1982 and restored the case to file. This order is impugned in the present revision petition.

3. Mr. D.P. Sarangi, learned counsel for the petitioner has challenged the order mainly on the ground of maintainability of the application under Section 151, C. P. C He submits that since the order dated 15. 1. 1983 was appealable under Order 43, Rule 1(r), C. P. C, the Court had no jurisdiction to exercise his inherent power to set it aside.

Shri R.K. Mohapatra, learned counsel for the opposite party on the other hand contends that the Court below has committed no error of jurisdiction in entertaining and allowing the petition under Section 151, C. P. C. He submits that even if the order dated 15.1.1983 was appealable the trial Court in the interest of justice could exercise his inherent power to recall the order.

On a careful consideration of the submissions of both the learned counsels, I am unable to accept the contention of Shri Sarangi that the petition under Section 151, C. P. C, was not entertainable. It is well settled that in a case where a particular order of the Court is appealable still the Court can set aside the same in exercise of its inherent power In order to do justice to the aggrieved party. This is based on the principle that mere existance of other remedy is no ground for refusing to exercise inherent power of a Court and grant relief to the aggrieved party if the interest of justice so demands. Authorities are uniform in their view that when an order which is appealable under the Code of Civil Procedure has been passed in the absence of a party, it is appropriate that the original Court should do justice in exercise of its inherent power if sufficient materials are produced to satisfy the Court, since in such a case the appellate Court, before whom no material would be available to show the facts and circumstances in which the party concerned could not be present in Court on the date fixed, would not be in a position to do justice between the parties. This view finds support from the cases reported in 1976 C. W. R. (I) 1, (Gopal Charan Sahoo v. Collector, Cuttack ), A. I. R. 1966 Orissa, 24, Kunja Behari Das. v. Chanchala Das. and Ors ) & A. I R. 1978 Patna, 339 (Bajrang Rai and Ors. v. Ismail Mian and Ors.).

4. Applying the principle enunciated in the above mentioned cases to the present case the trial Court has found that the opposite patty, a widow aged above 50 years, a chronic patient of high blood pressure was bed ridden on 15.1. 1983 when her elder son was away at Cuttack to take- steps in a criminal case. The only other person in her house was her minor son. In these circumstances, the Court has accepted that she was unable to either appear personally or take steps in the case on the date fixed. The finding of the Court below which is essentially one of fact is based on appreciation of the evidence before him and there is no scope for interference with the same. On the question of maintainability, as already discussed above, the contention of Shri Sarangi that the petition under Section 151, C. P. C, was not maintainable is without force. Further all that the Court below has done is to provide an opportunity to the opposite party to have her say on the order of ad interim injunction passed against her. The petitioner is not seriously prejudiced by the impugned order since the final order will be passed on hearing both the parties.

5. On the above analysis, the Civil Revision is devoid of merit and the same is dismissed, but in the circumstances without costs of this proceeding. Since the matter has already been delayed, I direct the parties to appear before the Subordinate Judge, Puri, on the 23rd of July, 1984 who would 'pass further direction.


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