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Samar Bhusan Pal Vs. Sakti Pada Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 476 of 1975
Judge
Reported inAIR1979Cal253,84CWN328
ActsCode of Civil Procedure (CPC) , 1908 - Section 151
AppellantSamar Bhusan Pal
RespondentSakti Pada Das
Appellant AdvocateManick Lal Mukherji, Adv.
Respondent AdvocateAmar N. Banerji, Adv.
Cases ReferredSmt. Bimla Devi v. Aghore Chandra Mallick
Excerpt:
- .....arises out of an order passed by the learned munsif, 5th court at alipore refusing to exercise inherent power under section 151 of the civil procedure code.2. the facts relevant for our purpose may in brief, be stated as follows;--the plaintiff-opposite party was a tenant under the defendant petitioner in respect of 2 ground floor rooms, situated at 8/2, gangadhar banerjee lane, p.s. watgunge, at a rental of rs. 28/- and rs. 22/- respectively according to english calendar. on 13-12-1972 the opposite party filed a suit being title suit no. 530 of 1972 in the court of the 5th munsif at alipore praying inter alia, for a mandatory injunction against the petitioner. the allegations in the plaint inter alia, were that on 15th oct. 1972 the meter board of the premises caught fire and was.....
Judgment:

Sudhindra Mohan Guha, J.

1. The present Rule arises out of an order passed by the learned Munsif, 5th Court at Alipore refusing to exercise inherent power under Section 151 of the Civil Procedure Code.

2. The facts relevant for our purpose may in brief, be stated as follows;--

The plaintiff-opposite party was a tenant under the defendant petitioner in respect of 2 ground floor rooms, situated at 8/2, Gangadhar Banerjee Lane, P.S. Watgunge, at a rental of Rs. 28/- and Rs. 22/- respectively according to English calendar. On 13-12-1972 the opposite party filed a suit being Title Suit No. 530 of 1972 in the Court of the 5th Munsif at Alipore praying inter alia, for a mandatory injunction against the petitioner. The allegations in the plaint inter alia, were that on 15th Oct. 1972 the meter board of the premises caught fire and was reduced to ashes as a result of which the electric connection of the entire premises along with the two tenanted rooms of the opposite party completely went off. On 16th October, 1972 when the Mistry of the Calcutta Electric Supply Corporation Ltd., came to repair and re-connect the electric line the petitioner after getting his own line repaired did not allow the C.E.S.C. men to repair and reconnect the opposite party's electric line. As the Mistries were not allowed to repair the meter board the opposite party suffered a loss of Rs. 45/- per day as a result of the aforesaid disconnection of electric supply. Hence the suit.

3. During the pendency of the aforesaid suit the opposite party filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure for an order of temporary mandatory injunction on the same grounds and on identical prayers as made by him in the suit. The petitioner on 31-5-1973 by his petition of objection refuted all the allegations of the opposite party. On 5-7-1973 when the suit was called on for hearing the plaintiff-opposite party was found absent on repeated calls and as a result the learned Munsif dismissed ex parte the said suit for default. Since then the petitioner had no other information but subsequently the petitioner having learned from the friends of the opposite party a rumour to the effect that the said Title Suit had already been restored in the absence of and without the knowledge of the petitioner, the petitioner enquired in Court and came to know about certain proceedings. Thereafter the petitioner obtained certified copies of Order No. 20 dated 20-8-73, Order No. 21 dated 23-8-73 and Order No. 22 dated 31-8-73. It transpired that the plaintiff-opposite party had managed to get an ex parte ad interim injunction order by misrepresentation and playing fraud upon the Court. It further transpired from Order No. 20 dated 20-8-73 that the opposite party allegedly sent the notice of restoration by registered post with acknowledgment slip and got back the alleged acknowledgment slip with a postal remark 'refused' on 22-8-73. On the basis of the fraudulent report as to the service of notice, on 31-8-73 the O. P. got the injunction matter disposed of ex parte on the ground that the defendant petitioner had failed to take any step and to be present on repeated calls. Being aggrieved by the order restoring the said suit in the absence of the petitioner, the petitioner on 3-11-73 filed an application in the Court below under Section 151 of the Code of Civil Procedure praying for setting aside the ex parte Order No. 22 dated 31-8-73 whereby an order of injunction had been issued in favour of the opposite party-plaintiff, and to re-hear the same in presence of the parties. It was specifically stated in the petition that the notice of the restoration petition had never been presented to him nor the petitioner had any occasion to refuse the same. But the learned Munsif by his order dated 24-9-74 dismissed the petition under Sec. 151 C. P. C. on the ground that the petitioner had failed to avail of the provisions of Order 43 Rule 1 of the Code of Civil Procedure and as such the Court could not exercise its inherent power under Section 151 of the Code of Civil Procedure, in spite of the fact that the learned Munsif was 'impressed' that 'the mode of service of the notice upon the defendant shows amply substantively the collusion of the plaintiff with the postal peon and as such the Order No. 22 dated 31-8-73 is required to be set aside and it is necessary to re-hear the suit for fair and equitable justice.' Against the impugned Order No. 45 dated 24-9-74 the petitioner has come up in revision to this Court.

4. Mr. Manick Lal Mukherji the learned Advocate for the petitioner contends that the learned Court below committed a gross error of law in the exercise of his jurisdiction by not holding that the petition under Section 151, C. P. C. was not for the purpose of setting aside an order passed under Order 39, Rule l of the Code of Civil Procedure but was for the purpose of setting aside an ex parte order which had been passed as a result of collusion, misrepresentation and fraud practised upon the Court. The learned Munsif observed to the effect that 'the learned lawyer for the petitioner has impressed upon me that the mode of service of the notice upon the defendant shows amply substantively the collusion of the plaintiff with the postal peon and as such the Order No. 22 dated 31-8-73 is required to be set aside and it is necessary to re-hear the suit for fair and equitable justice'. The learned Munsif miserably failed to hold that as he was still in seisin of the entire case, the petitioner rightly invoked the inherent jurisdiction of the learned Court to rehear the matter in presence of the parties. It was further contended that on the materials on record the learned Munsif failed to decide that no notice at all was served upon the petitioner and the plaintiff-opposite party resorted to collusion and thus practised fraud upon the Court and as such it was imperative that the learned Court would exercise jurisdiction under Section 151 of the Code of Civil Procedure.

5. There cannot be denial to the proposition of law that every Court is supposed to possess an inherent power to do the right and to undo a wrong for the ends of justice. But at the same time it should be remembered that the inherent power of the Court cannot override the express provisions of the law. According to the learned Munsif the petitioner could have availed of provisions of the Order 43, Rule 1 of the Civil Procedure Code. So, it is to be seen whether the exercise of such inherent power is in any way in conflict with the express provision of the Act. Certainly under Section 151, C. P. C. a Court cannot reverse its earlier order on the ground that it is subsequently found to be erroneous on merit. But this principle shall not be applicable in a case in which the order is passed under a misunderstanding of the case. In such a case the Court has inherent jurisdiction to set aside its own order. In the case of miscarriage of justice the injustice so done must be remedied on the principle actus curia neminem gravabit--the act of the Court shall prejudice no person, Such an abuse by the Court may arise either (a) by the default or mistake of the Court itself or (b) as the result of misrepresentation by or fraud of a party.

6. Mr. Mukherji, the learned Advocate for the petitioner refers to the decision of a Division Bench of Patna High Court in the case of Sheosagar Singh v. Sitaram Kumhar, reported in : AIR1952Pat48 . It is held therein that if fraud has been committed upon the party and as a result of that fraud the Court has been misled into passing certain orders which otherwise it would not have passed, then it is a fraud upon the Court itself. In such a case, under its inherent powers, the Court is not only entitled to, but it must set aside any order or orders which may have been passed by it upon a false representation.

7. Mr. Amar Nath Banerjee, the learned Advocate for the opposite party does not dispute the principle of law but contends there was nothing on record from which it could be gathered that fraud had really been practised upon the Court. But it would appear from Order No. 45 dated 24-9-74 that the learned Court below observed to the effect that the learned lawyer for the petitioner had impressed upon him that the mode of service of the notice upon the defendant shew amply substantively the collusion of the plaintiff with the postal peon and as such the Order No. 22 dated 31-8-73 was required to be set aside and it was necessary to re-hear the suit for fair and equitable justice. But in spite of this learned Court was not prepared to give any relief to the petitioner and according to him there was no room for application of the inherent power where there was not only an express provision negativing the claim of the party, or where a party had neglected to avail of the remedy provided elsewhere in the Code. In his opinion the petitioner-defendant had the remedy against the Order No. 22 dated 20-8-73 within the provisions of the Code, namely, under Order 43, Rule 1 of the Civil Procedure Code.

8. But the learned court appears to have fallen into an error in not taking into consideration that the order in question had been obtained by the opposite party-plaintiff by practising fraud upon the Court. In such a case I would hold in agreement with the decision of the Division Bench of the Patna High Court, reported in : AIR1952Pat48 , that the Court was not only entitled to, but it must set aside such an order which had been passed by it upon a false representation.

9. The Full Bench of this Court in the case of Smt. Bimla Devi v. Aghore Chandra Mallick : AIR1975Cal80 overruling the decisions reported in : AIR1970Cal229 and (1953) 57 Cal WN 495, held that where an application under Order 21, Rule 90 is dismissed on the ground of default, it is open to the applicant to move the Court, which passed the order of dismissal under Sec. 151 to have the order for dismissal set aside. It is held further that the Court's power under Order 41, Rule 33 can be used only when the Court is satisfied that but for the use of this power a gross injustice would be done that the Court can take recourse to it. A power to be exercised in extraordinary or exceptional circumstances cannot be described to be a remedy available to a litigant before the Appellate Court.

10. Having regard to the position in law and also having regard to the fact that the impugned order was obtained on some misrepresentation or by a fraud practised by the opposite party I am of the opinion that the learned Court below committed an error in failing to exercise its inherent jurisdiction to do the right and to undo a wrong for the ends of justice. In the case of miscarriage of justice the Court has every jurisdiction to set aside its own order obtained on misrepresentation or by practising fraud,

11. It is also observed by the Supreme Court that the Court will exercise its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. : AIR1962SC527 .

12. In this view of the matter the present Rule is made absolute. The ex parte Order No. 22 dated 31-8-1973 is set aside and the learned Court below would re-hear the matter in presence of the parties.

13. There would be no order as to costs.


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