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Kalipado Ghosh and anr. Vs. Sm. Abhoyabala Dassi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. Nos. 2302-2303 of 1978
Judge
Reported inAIR1980Cal73
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 9, Rules 4 and 9
AppellantKalipado Ghosh and anr.
RespondentSm. Abhoyabala Dassi and ors.
Appellant AdvocateS.N. Mukherjee and ;Bhaskar Ghose, Advs.
Respondent AdvocateMrinal Kanti Das, Adv.
DispositionApplication dismissed
Cases Referred(Durga Charan Sonar v. Kali Prosad Sonar). It
Excerpt:
- .....arise out of an order passed by the learned munsif, 1st court at chanderna-gore, restoring a suit dismissed for non-prosecution. the opposite parties plaintiff commenced the suit being title suit no. 80 of 1975 in the 1st court of the munsif at chandernagore for certain reliefs under sections 36, 37-a and 38 of the bengal money lenders act on 10-4-75. the plaintiff however allowed the suit to be dismissed for non-prosecution on 1-10-75. 2. thereafter on 27-8-76 the opposite parties filed an application under section 151 of the code of civil procedure praying for restoration of the suit which was however allowed by the impugned order dated 24-5-78. 3. mr. bhaskar ghose, learned advocate appearing in support of the rules contends that the trial court had no jurisdiction to exercise.....
Judgment:
ORDER

Sudhindra Mohan Guha, J.

1. These applications for revision arise out of an order passed by the learned Munsif, 1st Court at Chanderna-gore, restoring a suit dismissed for non-prosecution. The opposite parties plaintiff commenced the suit being Title Suit No. 80 of 1975 in the 1st Court of the Munsif at Chandernagore for certain reliefs under Sections 36, 37-A and 38 of the Bengal Money Lenders Act on 10-4-75. The plaintiff however allowed the suit to be dismissed for non-prosecution on 1-10-75.

2. Thereafter on 27-8-76 the opposite parties filed an application under Section 151 of the Code of Civil Procedure praying for restoration of the suit which Was however allowed by the impugned order dated 24-5-78.

3. Mr. Bhaskar Ghose, learned Advocate appearing in support of the Rules contends that the trial court had no jurisdiction to exercise power under Section 151 C. P. C. when express provisions for such restoration were provided in the Code. He refers to the decision in the case of Umesh Chandra Manna v. Amar Nath Jana reported in AIR 1929 Cal 158. It was held therein that the trial Court had no jurisdiction to invoke the aid of Section 151 C. P. C. for the purpose of restoring a suit which had been dismissed on exercising a jurisdiction which was not vested in it by law. The facts of the instant case are otherwise. It cannot be said that the learned trial Court had no jurisdiction to dismiss the suit for non-prosecution on 1-10-75.

4. Mr. Ghose next refers to a Division Bench decision of this Court reported in : AIR1977Cal46 (Durga Charan Sonar v. Kali Prosad Sonar). It is held by their Lordships that there cannot be an order under Section 151 C. P. C. for restoring a suit which had been dismissed for default due to the absence of the plaintiff. In this case it was held that express provision for such restoration had been made under Order 9 Rule 9. In the instant case the order for dismissal of the suit was passed before the appearance of the defendants-petitioners. It was also not the case of the petitioners that that very order was passed in the absence of the plaintiff. In that case the plaintiff could invoke the aid of Order 9 Rule 4. The suit in question was dismissed for non-prosecution. For restoration of such a suit, no specific provision has been made out in the Civil Procedure Code. The provision of Section 151 C. P. C. shall not be exercised when there are specific provisions in the Code. In the absence of any specific provision and for the purpose of ends of justice, the learned Munsif appears to be justified in restoring the suit under Section 151 C. P. C. In this view of the matter, no interference is called for,

5. In the result, the application fails and the Rule is discharged. There will be no order as to costs.


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