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Balaram Ojha Vs. Star Trading and Investment Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4149 of 1976
Judge
Reported inAIR1978Cal160
ActsCode of Civil Procedure (CPC) , 1908 - Sections 105(2) and 151 - Order 11, Rule 21 - Order 41, Rules 11 and 27 - Order 43, Rule 1
AppellantBalaram Ojha
RespondentStar Trading and Investment Ltd.
Appellant AdvocateAnilandu Mukherjee and ;Bidyut Banerjee, Advs.
Respondent AdvocateTarun Kumar Chatterjee, Adv.
Cases ReferredNainsingh v. Koonwarjee
Excerpt:
- .....recognised by section 151 c.p.c., a court has no power to do that which is prohibited by the code. inherent jurisdiction of the court must be exercised subject to the rule that if the code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. in other words the court cannot make use of the special provisions of section 151 of the code where a party had his remedy provided elsewhere in the code and he neglected to avail himself of the same. further the power under section 151 of the code cannot be exercised as an appellate power.'4. a division bench of this court, in mrs. namita dhar v. dr. amalendu sen, : air1977cal187 , has taken the view that when the defence of a.....
Judgment:

M.M. Dutt, J.

1. The only point that is involved in this Rule is whether an application under Section 151 of the Code of Civil Procedure is maintainable for the restoration of the written statement dismissed under Rule 21 of Order 11 of the Code.

2. The opposite party, who is the defendant in the suit out of which this appeal arises, failed to discover on oath within the period allowed by the court below. On the application of the petitioner under Rule 21 of Order 11 of the Code, the court below by its order No. 37 dated July 16, 1976 struck out his defence. On September 22, 1976, the opposite party filed an application under Section 151 of the Code praying for setting aside the said order No. 37 and for restoration of his defence. The court below, after considering the circumstances alleged in the said application explaining the failure of the opposite party to discover on oath, by its order No. 41 dated November 26, 1976 directed that the application would be allowed and the said order No. 37 would be set aside on the opposite party's paying a cost of Rs. 12 to the petitioner by December 3, 1976. Being aggrieved by the said order No, 41, the petitioner has obtained the instant Rule.

3. It is contended by Mr. Anilanda Mukherjee, learned Advocate appearing on behalf of the petitioner that an order passed under Rule 21 of Order 11 being appealable under Clause (f) of Rule 1 of Order 43, the application under Section 151 was not maintainable. In support of his contention, he has placed strong reliance on a decision of the Supreme Court in Nainsingh v. Koonwarjee, : [1971]1SCR207 . In that case, the Supreme Court observed as follows (at p. 998) :--

'The High Court, in our opinion, erred in holding that the correctness of the remand order was open to review by it. The order in question was made under Rule 23, Order 41, Civil Procedure Code. That order was appealable under Order 43 of that Code. As the same was not appealed against, its correctness was no more open to examination in view of Section 105(2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers. Under the inherent power of Courts recognised by Section 151 C.P.C., a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power.'

4. A Division Bench of this Court, in Mrs. Namita Dhar v. Dr. Amalendu Sen, : AIR1977Cal187 , has taken the view that when the defence of a defendant has been struck out under Rule 21 of Order 11, an application under Section 151 is not maintainable for the setting aside of the order striking out the defence, on the ground that such an order is appealable under Order 43, Rule 1 (f). Prior to the above Bench decision, a Full Bench of this Court in Bimala Devi v. Aghore Chandra Mallick, : AIR1975Cal80 (FB) had to consider the scope of Section 151 and the maintainability of an application under that section for restoration of an application under Order 21, Rule 90 of the Code of Civil Procedure which was dismissed for default. It does not appear that the said Full Bench decision was cited at the Bar 'before the Division Bench in Namita Dhar's case (supra). Again, the decision of the Supreme Court in Nainsingh v. Koonwarjee : [1971]1SCR207 (supra) was not noticed by the Full Bench. It is urged on behalf of the petitioner that in view of the above decision of the Supreme Court the law laid down by the Full Bench is not a good law.

5. It is now a well-settled principle of law that when a remedy is specifically provided for in the Code of Civil Procedure, the Court should not exercise its inherent power and any party aggrieved by an order should avail himself of the remedy so provided. The remedy, in our opinion, must be a real remedy and not one of form only. An order passed under Order 11, Rule 21 is undoubtedly an appealable order. By an appeal from an order, the appellant assails the propriety of the order on materials that are on record of the case. In the absence of any material, it may be difficult for an appellant to challenge an order in an appeal therefrom. Order 11, Rule 21 has conferred on the Court the power to strike out the defence if a defendant fails to discover on oath the documents in his possession. If no discovery is made within the time as directed by the Court, the defence will be struck out for default of the defendant. The defendant may have a very good explanation to offer to the Court for his failure to comply with the order of the Court to discover on oath within the time allowed. If it is held that the defendant should prefer an appeal against the order striking out his defence for his failure to discover on oath, the defendant will be deprived of an opportunity to explain his conduct As therewill be nothing on record on which the defendant may rely in justification of his failure to discover on oath, his appeal will fail. We are, however, not unmindful of the provision of Order 41, Rule 27 of the Code, providing for the giving of additional evidence before the Appellate Court But the procedure for additional evidence is not the usual procedure, and whether or not the appellant should be allowed to adduce additional evidence depends on the requirement of the Appellate Court for such evidence. In other words, the provision of Order 41, Rule 27 cannot be invoked by the appellant as a matter of right. Further, when an appeal is preferred against an order striking out the defence of the defendant for his default to discover on oath, it has to be admitted under Order 41, Rule 11 of the Code of Civil Procedure. At the admission stage of the appeal there will be nothing before the Appellate Court to satisfy itself prima facie against the propriety of the order. Thus it appears that though an appeal lies against an order passed under Order 11, Rule 21 striking out the defence of the defendant, the remedy provided by such an appeal will be in form only and the defendant may not. have any relief. In Bimala Devi's case : AIR1975Cal80 (FB) (supra), it has been held by the Full Bench that the remedy by way of appeal against an order dismissing an application under Order 21, Rule 90 of the Code for default, though available, is illusory because the appellate court would have to go by the record and to decide whether the appellant was prevented by sufficient cause from appearing before the trial Court, and that it is obvious that the Appellate Court would have no material on record to render a decision on the sufficiency of the cause and can give no relief to the appellant. We do not think that the Full Bench has laid down a principle of law different from that of the Supreme Court case in Nainsingh v. Koonwarjee : [1971]1SCR207 (supra). In that case, it has been observed by the Supreme Court that inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. It follows from the said observation of the Supreme Court that if the Court is satisfied that the specific provisions of the Codedo not meet the necessities of the case, it can exercise the inherent power under Section 151. As already discussed, an appeal against an order striking out the defence of the defendant for default will be insufficient to meet the necessities of the case of the defendant and it may be said to be meaningless and ineffective. Moreover, in the ease before the SupremeCourt the High Court in exercise of inherent power reviewed an order of remand which was passed under Order 41, Rule 23 of the Code. As no appeal was preferred against the order of remand, it became final and unassailable in view of Section 105(2) of the Code. There is nospecific provision in the Code like Section 105(2) precluding a party from challenging the correctness of an order dismissing a suit or striking out a defence for default under Rule 21 of Order 11 on the ground that no appeal has been preferred by the aggrieved party against such an order. In the view which we take there does not appear to be any conflict between the decision of the Full Bench and that of the Supreme Court referred to above. In our view, therefore, the application under Section 151 was maintainable.

6. In the result, the Rule is discharged, but there will be no order for costs.

D.C. Chakravorti, J.

7. I agree.


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