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Taxi Motor Association, Kankroli Vs. Appellate Authority and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberWrit Petn. No. 12 of 1953
Judge
Reported inAIR1953Raj201
ActsCode of Civil Procedure (CPC) , 1908 - Sections 141 and 151 - Order 9, Rule 13; Constitution of India - Article 226
AppellantTaxi Motor Association, Kankroli
RespondentAppellate Authority and anr.
Appellant Advocate G.C. Kasliwal, Adv.
Respondent Advocate C.K. Agrawal, Adv.
Cases ReferredS. M. Sudevi Devi v. Sovaram Agrawallah
Excerpt:
- - bansilal and hazarilal who were opposite parties 4 and 5 as mentionedabove failed to put in their appearance on the said date of hearing. in cases where specific provision is made for setting aside the ex parte decree like order 9. civil p......the present application on the ground that there is no procedure laid down for setting aside ex parte decisions in applications under article 226 of the constitution of india and that the reasons given by the petitioner are not sufficient to justify such an order.4. the learned counsel for the applicant says that the petition presented by the taxi motor association was in the nature of a civil proceeding and that by virtue of section 141, civil p. c. order 9 rule 13 was applicable. from the opposite side it has been replied that section 141, civil p. c. would not be applicable in the present case because in a petition under article 226 of the constitution of india the court exercises what may be called constitutional jurisdiction and not its ordinary civil jurisdiction.5. chapter 22.....
Judgment:

Dave, J.

1. The facts giving rise to the presentapplication, briefly stated, are that the Taxi Motor Association, Kankroli, presented an application under Article 226 of the Constitution of India challenging the validity of the decision of the appellate authority (Transport) dated 30-7-1952 on the ground, that the Chairman of the said appellate authority was not properly appointed and, therefore, the constitution of that tribunal was not valid in law. Besides the appellate Authority, the State Transport Authority and the Regional Transport Authority, two other persons, Bansilal and Hazarilal were also impleaded as opposite parties. Notices were issued to all of them and6-3-1953 was fixed for the hearing of the application. On that day the learned Government Advocate, who appeared on behalf of the Appellate Authority, State Transport Authority and the Regional Transport Authority conceded that in view of the decision of this Court in the case of the-- 'Dholpur Co-operative Transport and Multipur-poses Union Ltd. v. The Appellate Transport Authority, Rajasthan', AIR 1953 Raj 193 (A), he could not support the decision of the Appellate Transport Authority which was challenged, and therefore the petition was allowed and the decision of the Appellate Authority (Transport) dated 30-7-1952 was quashed and the present appellate Authority was directed to hear and decide the appeal according to law. Bansilal and Hazarilal who were opposite parties 4 and 5 as mentionedabove failed to put in their appearance on the said date of hearing. On the 10-3-1953 they presented an application through their counsel for setting aside the said decision of this Court dated 6-3-1953.

2. It is stated in the application that the case was third on the list on the date of hearing, that the opposite party's advocate Mr. C. L. Agrawal thought that the first case would take the whole day, that this case would not probably come up for hearing and so instead of remaining present in the Court, he went to the Bar room. It is said that he was getting in the Bar room when the case was called out for hearing but he could not come to know that the case was taken up and, therefore, it was heard and decided ex parte. It has been pointed out that the default in appearance on the part of the Advocate was unintentional and was due to sheer misunderstanding and, therefore, it is prayed that in the interest of justice, the ex parte order should be set aside and the case be decided after hearing the petitioners.

3. The learned counsel for the other side contests the present application on the ground that there is no procedure laid down for setting aside ex parte decisions in applications under Article 226 of the Constitution of India and that the reasons given by the petitioner are not sufficient to justify such an order.

4. The learned counsel for the applicant says that the petition presented by the Taxi Motor Association was in the nature of a civil proceeding and that by virtue of Section 141, Civil P. C. Order 9 Rule 13 was applicable. From the opposite side it has been replied that Section 141, Civil P. C. would not be applicable in the present case because in a petition under Article 226 of the Constitution of India the Court exercises what may be called constitutional jurisdiction and not its ordinary civil jurisdiction.

5. Chapter 22 of the Rules of the Rajasthan High Court, which lays down some procedure for applications under Article 226 of the Constitution of India, is silent on the point involved in this case. Whether proceedings under Article 226 of the Constitution are of the nature of original civil suits is a question which is not free from doubt and difficulty and as the application can be disposed of on other grounds we do not propose to proceed further with the discussion of this aspect of the question.

6. The normal procedure for a Court to decide a case is that once it is moved by a party for a certain remedy and unless the petition is summarily dismissed the opposite party should also receive a notice and both the parties should then be heard and the case decided thereafter. Every defendant has as much a right of hearing as a plaintiff and if the defendant against whom an order is made is able to satisfy the Court that he was prevented from appearing before it either because he did not receive any notice of the plaintiff's case or that he was prevented from coming to the Court on account of any other sufficient cause then it is the duty of the Court to place the parties in the same position as if it had given no decision. It would be a grave abuse of the process of the Court if the plaintiff is, in such cases, allowed to take advantage of the ex parte decision which was given in his favour without hearing the other side. In cases where specific provision is made for setting aside the ex parte decree like Order 9. Civil P. C., it may not be proper to use the inherent powers of the Court but where no such provision is made, then there seems no reason why the Court should notuse its inherent power for the ends of justice. In the case of -- 'S. N. Banerjee v. H. S. Suhrawardy', AIR 1928 Cal 772 (B), it was observed by Rankin C. J. as follows :

'I am unable to hold that the exact words of Rule 13 Order 9 are to be applied on the footing that they are directly applicable under the rules of the original side and that they are exhaustive. It has been the general practice on the original side to follow the analogy of Order 9 Rule 13 on general principles of Justice.'

7. In the case of -- 'S. M. Sudevi Devi v. Sovaram Agrawallah', 10 Cal WN 306 (C), also it was held by the same Court that the Court has an inherent power to deal with an application to set aside an order made ex parte on a proper case being substantiated. We are therefore of the opinion that even though Section 141, Civil P. C. may not be specifically applicable, this Court has inherent powers on the analogy of Order 9 Rule 13, Civil P. C. to set aside its ex parte order for the ends of justice and preventing the abuse of process.

8. The learned counsel of the petitioners did not appear at the time this case was called out on account of some misunderstanding. This, in our opinion, was a sufficient ground for his non-appearance and the ex parte order made against his clients should therefore be set aside in order that they might be allowed to put their case before the Court.

9. This application is therefore allowed and the ex parte order of this Court, dated 6-3-1953, is set aside and the case is ordered now to be listed again for hearing.


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