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Pamireddi Sambayya and ors. Vs. Nimmagadda Nagayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in52Ind.Cas.540
AppellantPamireddi Sambayya and ors.
RespondentNimmagadda Nagayya and ors.
Cases Referred and Kanai Lal Ghose v. Jatindra Nath Chandra
Excerpt:
.....in holding that the appellants' application, viewed as one under order xli rule 19, of the code of civil procedure, is barred by limitation under article 168 and as one for review of judgment, it could not be granted by him as notice had not been ordered by the judge who originally passed the order of dismissal. it was, therefore, clearly necessary for the ends of justice and to prevent abuse of process of court to set it aside. but in this case there does not seem to be any such provision against applying section 151. order xli, rules 17 and 19, of the code of civil procedure do not properly apply to a case like the present, where the court in which the appeal was to be heard was changed without the parties being informed or knowing anything about it, though the appellants could have..........the appeal for hearing on 6th march 1916. no notice was sent to the parties, but under rule 16, civil rules of practice, notice of the hearing was affixed on the court notice board. on the 6th march 1916 neither party appeared. the court took time till 14th march 1916: and then dismissed the appeal for default of appellants' appearance under order xli, rule 17 (1).4. the lower appellate court says: 'there can be no doubt that neither party knew anything about the appeal having been sent to this court for disposal.' in this i entirely agree; though it is only the appellants whose ignorance is material. on 28th november 1916 the appellants, having somehow some to know of this order of dismissal, filed a petition to set it aside. the petition was put in under order xlvii, rule 1, as a.....
Judgment:

William Ayling, J.

1. The circumstances of the case out of which these petitions arise are somewhat extraordinary, and as the course we propose to take is one which we should be sorry to see misquoted as a precedent, I deem it best to set them out in detail. The appellants in Appeal against Order No. 228 of 1917 and petitioners in Civil Revision Petition No. 553 of 19J7 (whom we shall henceforward refer to as appellants) were appellants in Appeal Suit No. 11 of 1903 on the file of the Subordinate Judge of Masulipatam. They succeeded, the decree of the Original Court being reversed. The Other side preferred a second appeal to this Court (Second Appeal No. 1983 of 1913). This Court set aside the decree of the Sub-Court and remanded the appeal to the Subordinate Judge of Masulipatam for disposal according to law. This was on 5th January 1916. Meantime certain changes had taken place in the Courts of the Kistna District. The Sub-Court of Masulipatam, which had disposed of this appeal, was directed to hold its sittings at Bezwada and its designation altered to the Sub Court of Bezwada. A new Court has been constituted under the title of the Temporary Sub-Court of Masulipatam and was working at Masulipatam when the order of this Court in second appeal was passed.

2. It is beyond dispute that the effect of this Court's order was to direct restoration of the appeal to the file of the Court sitting at Bezwada which was identical with the Court which originally heard it, although its designation and place of sitting had been altered. The parties, however, fell into the not unnatural error of thinking that the appeal would be beard by the Court of Masulipatam. As far as appellants are concerned, this error is testified to in the affidavits filed which have been accepted by' the lower Appellate Court, and which we accept as true in this respect. How natural the error was may be gauged by the fact that it was shared by the office of this Court which sent the records in the first instance to the Temporary Sub-Court of Masulipatam. The latter Court transmitted them to the Bezwada Court.

3. The Bezwada Court, on receipt of the records, posted the appeal for hearing on 6th March 1916. No notice was sent to the parties, but under Rule 16, Civil Rules of Practice, notice of the hearing was affixed on the Court Notice Board. On the 6th March 1916 neither party appeared. The Court took time till 14th March 1916: and then dismissed the appeal for default of appellants' appearance under Order XLI, Rule 17 (1).

4. The lower Appellate Court says: 'There can be no doubt that neither party knew anything about the appeal having been sent to this Court for disposal.' In this I entirely agree; though it is only the appellants whose ignorance is material. On 28th November 1916 the appellants, having somehow some to know of this order of dismissal, filed a petition to set it aside. The petition was put in under order XLVII, Rule 1, as a review petition since a petition under Order XLI, Rule 19, would have been time-barred. There is no reason to suppose that the appellants* were guilty of undue delay in preferring this application after they came to know of what had happened.

5. At the time this petition was filed, Mr. Jivaji Rao, the Sub-Judge who dismissed the appeal for default, was still in charge of the Court. He, however, passed no orders upon it up to the time of his departure on transfer, in the following month. The petition, therefore, came for disposal before his successor, Mr. Raghava Ayyangar. The latter, while finding the facts above set forth in appellants' favour, felt himself constrained to dismiss the petition on the ground that under Order XLVII, Rule 2, he had no power to review his predecessor's order, the latter not having directed notice to issue to the other side.

6. It is against this order of Mr. Raghava Ayyangar that appellants invoke our aid both in appeal and revision: and Mr. Ramadoss, who appears for respondents to oppose them, does so on the ground that, however inequitably things may have worked out, the order of Mr. Raghava Ayyangar is absolutely correct from a legal point of view and that we have no power to interfere.

7. It is unnecessary to discuss this because, in my opinion, the error goes' farther back, and has resulted in such a flagrant denial of justice that we are not only justified, but called upon to use the inherent powers referred to in Section 151, Civil Procedure Code.

8. The result of the orders passed subsequent to the remand of the appeal by this Court has been that appellants, though for no fault of their own, have been practically deprived of the right of appeal which they possessed. Their appeal has been dismissed without their having any opportunity of arguing it. The affixing of notice of hearing on the Board of the Bezwada Court might be sufficient notice where the parties were aware of the pendency of the appeal in that Court, and might be expected to watch the Board either by themselves, or by their Pleaders. It could not be in the present case, where, through a natural error (as shown above), they expected the appeal to be heard in another Court, 50 miles away.

9. It is impossible to conceive that, in these circumstances, Mr. Jivaji Rao would have declined to re-admit the appeal, if the true facts had been brought to his notice in time by a petition under Order XLI, Rule 19. That this was not done was also due simply to appellants' ignorance of what was going on. The same officer's failure to pass orders on the review petition before his departure may be explicable on the' ground of pressure of work, or inadvertance; but is much to be regretted.

10. In my opinion the case comes within the spirit of the remarks of their Lordships of the Privy Council in Debi Bakhsh Singh v. Habib Shah 19 Ind. Cas. 526: 15 Bom. L.R. 640. In dismissing an appeal, of the hearing of which the appellants had no notice whatever, the Sub-Court, though 'in ignorance of the true facts, must be held to have acted with material irregularity and in such a way as to induce miscarriage of justice; and, under Sections 115 and 151, Civil Procedure Code, I would set aside the order of dismissal and direct the Sub Judge of Bezyada to restore Appeal No. 11 of 1913 to his file and to dispose of it according to law. Costs in these proceedings should be costs in the cause.

Krishnan, J.

11. The Subordinate Judge is clearly right in holding that the appellants' application, viewed as one under Order XLI Rule 19, of the Code of Civil Procedure, is barred by limitation under Article 168 and as one for review of judgment, it could not be granted by him as notice had not been ordered by the Judge who originally passed the order of dismissal. But I agree with ray learned brother that in the special circumstances of this case described by him the Subordinate Judge should have acted under Section 151 of the Code of Civil Procedure and used his inherent powers to set aside the order.

12. There can be no doubt that, if the order is allowed to stand, the appellants' right of appeal in the main suit will be taken away from them for no default committed by them. It was, therefore, clearly necessary for the ends of justice and to prevent abuse of process of Court to set it aside. I agree with my learned brother that the principle of the decision of the Privy Council in Debt Bakhsh Singh v. Habib Shah 19 Ind. Cas. 526 (1913) M.W.N. 566 applies to this case, though the facts of that case were somewhat different.

13. It was contended that Section 151 could not be used for extending periods of limitation and overruling legislative provisions, and reliance was placed on the observations in Vannisami Thevar v. Periayaswami Thevar 33 Ind. Cas. 996 : 3 L.W. 271 and Kanai Lal Ghose v. Jatindra Nath Chandra 42 Ind. Cas. 714 That, of course, is so; for no inherent power will exist against an express provision of law. But in this case there does not seem to be any such provision against applying Section 151. Order XLI, Rules 17 and 19, of the Code of Civil Procedure do not properly apply to a case like the present, where the Court in which the appeal was to be heard was changed without the parties being informed or knowing anything about it, Though the appellants could have applied under Rule 19 if they had known of the dismissal in time, they were not bound to do so and it cannot be said that that was their only remedy. As for the review filed by them, it is doubtful if that was a proper remedy at all. If it was, the appellants did apply and their failure to get relief was not due to their fault at all. But they were clearly not bound to apply for review. It cannot, therefore, be said that there was any rule of law requiring the appellants to adopt any particular procedure such as that under Rule 19 or that by way of review. I think that it was open to them to ask the Court to use its inherent powers and that, I think, was their proper remedy in the circumstances.

14. That being so, it is open to us under Section 115 of the Code of Civil Procedure to revise the order of the Sub Judge, as he failed to exercise the jurisdiction vested in him under Section 151 of the Code of Civil Procedure as he might have done.

15. I agree to the order proposed by my learned brother.


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