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Asutosh Ghosh and anr. Vs. Indu Bhusan Ghose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal158
AppellantAsutosh Ghosh and anr.
Respondentindu Bhusan Ghose
Cases ReferredGhazanavi v. Allahabad Bank
Excerpt:
- .....to have the suit restored for various reasons which it is not necessary to set forth.2. the learned judge thus dealt with the matter. he stated that it seemed a fit case for restoration. he noted that it had been argued that neither order 9, rule 4 nor section 152 applied to a suit dismissed under order 11, rule 21. he, however, held that it is quite immaterial which of the sections applied. he further held that it did not matter in the least if an application for a review was necessary. the court, he held, had sufficient power and authority to set aside the order of dismissal if justice demanded it and he proceeded to set aside the order. he did not, as far as i can ascertain from his judgment, apparently purport to act under any section of the code. against this order the.....
Judgment:

Cuming, J.

1. The facts of the case out of which this Rule arises are these : The opposite party brought a money suit against the petitioner claiming a sum of Rs. 1,800. In the course of this suit certain interrogatories were delivered to the plaintiff by the defendant. The plaintiff did not answer these interrogatories by the date fixed by the Court. On the date fixed for the delivery of the answers to the interrogatories by the plaintiff, the opposite party's pleader stated that he had no further instruction. On this the Court dismissed the plaintiff's suit for non-prosecution tinder Order 11, Rule 21, Civil P.C. The plaintiff then moved the Court under Order 9, Rule 9 and Section 151 of the Civil P.C., praying to have the suit restored for various reasons which it is not necessary to set forth.

2. The learned Judge thus dealt with the matter. He stated that it seemed a fit case for restoration. He noted that it had been argued that neither Order 9, Rule 4 nor Section 152 applied to a suit dismissed under Order 11, Rule 21. He, however, held that it is quite immaterial which of the sections applied. He further held that it did not matter in the least if an application for a review was necessary. The Court, he held, had sufficient power and authority to set aside the order of dismissal if justice demanded it and he proceeded to set aside the order. He did not, as far as I can ascertain from his judgment, apparently purport to act under any section of the Code. Against this order the defendant moved this Court and he contends that the Judge had no jurisdiction to do what he did. Now, under what provisions of law the learned Judge purported to act it is not easy to discover. If I have understood him rightly he purported to act under no provisions of law. He seems to think that if justice demanded it he could set aside any order whether the Code empowered him to do so or not. Mr. Boy Choudhury contends that the learned Judge must be considered to have acted under Section 151 of the Civil P.C., for admittedly there is no other section of the Code under which he could have acted. It may be pointed out that Courts of law are bound to act in accordance with the law prescribed and not according to a Code of their own making. Their jurisdiction is derived from the Code and by the provisions of the Code they must be guided. I must take it, therefore, that the learned Judge acted under Section 151. If ho did not, his action is wholly illegal and without jurisdiction.

3. We have now to consider whether he had jurisdiction under Section 151 to review his former order and set it aside. Now, to my mind, Section 151 can have no application to a case which is already provided for by the Civil P.C. A Court cannot review its own order under Section 151. Order 47 provides the cases in which a Court can review its own order and it seems to me by implication that unless the case falls within Order 47, a Court has no power to review. If a Court can deal in review with case that do not fall within Order 47, then obviously it was a waste of time to have enacted Order 47, or indeed to have enacted a Code at all. For if all the matters which are dealt with under the Code can be dealt with under Section 151 as has been seriously contended then obviously the whole of the elaborate Code could have been contained in the five lines of Section 151.

4. My own view is that a Court has only power to act under Section 151 and invoke its inherent power when the case is not provided for by any specific enactment in the Code; but if there is a specific enactment in the Code under which the matter can be dealt with, the Court has no jurisdiction to invoke its inherent powers under Section 151. This is not a case in which there was no remedy provided by the Code. There was a remedy by way of appeal against the order dismissing the suit for default under Order 11, Rule 21, In such circumstances the learned Subordinate Judge had no jurisdiction to review his order under Section 151. He does not sugggest that he reviewed the order under Order 47, nor indeed is it suggested that the order could have been reviewed under that order.

5. The result is that the Rule must be made absolute, the order of the learned Subordinate Judge restoring the case to file vacated and the order dismissing the suit under Order 11, Rule 21 restored. The petitioner is entitled to the costs. Hearing-fee : two gold mohurs.

Page, J.

6. I agree that the Rule should be made absolute.

7. I regret, however, that it is necessary that we should do so, because I think that the learned Judge firmly believed that in passing the order in question he was taking the best step available to remedy what he regarded as an unfortunate order that he had passed on the 21st October 1925. It appears to me to be clear from the first words of his order of the 28th January 1926, that the learned Judge purported to restore the case under Section 151 of the Civil P.C. The question that we have to consider is whether in passing the order under Section 151 he was either exercising a jurisdiction with which he was not vested or if he possessed jurisdiction in that behalf whether he was exercising it according to law. Speaking for myself I should hesitate before I place any restriction upon the inherent powers which it is expressly provided by Section 151 are to be retained by the Court. As I apprehend the matter the Court, in the words of the Code possesses inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, In my opinion, the question that we have to determine is whether the Court, in passing the order in question, was entitled to do so, because it was necessary that the order should be passed to meet the ends of justice.

8. I think that the true scope of the jurisdiction of the Court under Section 151 was stated by Woodroffe, J., in Abdul Karim Abu Ahmed Khan' Ghazanavi v. Allahabad Bank, Ltd. [1917] 44 Cal. 929. In my judgment, whenever it is necessary for the ends of justice or to prevent an abuse of the proccess of the Court, the Court always has jurisdiction to pass an order under Section 151 unless its jurisdiction in that behalf has specifically been taken from it. But

whether justice does require a Court to invoke its inherent jurisdiction must be determined with reference to the particular facts of the case and the rule of law that a Court cannot invoke an inherent jurisdiction where there is a provision in the Code, whether by way of remand or otherwise which, if applied, will meet the justice of the case.

9. If a Court passes an order under Section 151, where there is a provision in the Code which, if applied, will meet the justice of the case, in my opinion, it is not exercising the jurisdiction with which it is vested under Section 151, Civil P.C., in accordance with law. However desirable a Court may deem it that an order should be passed under Section 151 the Court is not acting in accordance with law if it elects arbitrarily to disregard the express provisions of the Code which, if applied, would meet the justice of the particular case. It is conceded that in the present case an application to review the order in question under Order 47, Rule 1 would not have been successful, for, admittedly, the plaintiff could not have brought his case within the ambit of Order 47, Rule 1. But was it necessary in these circumstances to meet the ends of justice that the Court should have proceeded under Section 151? In my opinion, clearly not; for it was open to the plaintiff to appeal against the order which had been passed dismissing his suit. It follows, therefore, that if the learned Judge passed the order purporting to act tinder Section 151 he was not exercising the jurisdiction with which he was vested according to law.

10. For these reasons I agree that the Rule should be made absolute.


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