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Subodh Chandra Mukherjee Vs. Sudhir Kumar Basu and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata
Decided On
Case NumberCivil Revn. Case No. 1216 of 1948
Judge
Reported inAIR1950Cal209,54CWN106
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 and 161; ;Bengal Tenancy Act, 1885 - Section 174, 174(3) and 174(5); ;Tenancy Law
AppellantSubodh Chandra Mukherjee
RespondentSudhir Kumar Basu and ors.
Appellant AdvocateProvat Kumar Sen Gupta, Adv.
Respondent AdvocateHarideb Chatterjee, Adv.
DispositionApplication dismissed
Cases Referred and Haji Mohammad Kazibulla Mondal v. Humayun Reza Choudhury
Excerpt:
- .....before the munsif on 14th march 1947. on that date, apparently in the absence of either party, the munsif passed the following orders:'applicants are directed to take necessary steps for service of fresh notice upon opposite parties nos. 4 and 9 by 19-3-47. put up on that date for farther orders. inform.'3. accordingly, on 19th march 1947, the record was put up before the munsif and the following order was passed:'no further steps taken by the applicants and the order no. 40 of 14-3-47 has not been complied with. ordered that the miscellaneous case be dismissed for default.'4. it was in these circumstances that an application under section 151, civil p. c., was filed by the applicant praying for restoration of the miscellaneous case, that is to say, the case started on the application.....
Judgment:

Das Gupta, J.

1. This application is direct, ed against an order setting aside under Section 151, Civil P. C., an order of dismissal of an application under Section 174 (3) of the Bengal Tenancy Act.

2. It appears that the application for setting aside the sale was put up before the Munsif on 1st March 1947, and on that date, hearing was adjourned to 28th April 1947, 'for orders awaiting reciept of the record from the appellate Court.' The case was, however, never put up on 28th April because on an earlier date it was dismissed for default. The circumstances under which it was dismissed for default are peculiar. It appears that after the Court had, on 1st March 1947, adjourned the case to 28th April 1947, the records on being received from the High Court were put up before the Munsif on 14th March 1947. On that date, apparently in the absence of either party, the Munsif passed the following orders:

'Applicants are directed to take necessary steps for service of fresh notice upon opposite parties Nos. 4 and 9 by 19-3-47. Put up on that date for farther orders. Inform.'

3. Accordingly, on 19th March 1947, the record was put up before the Munsif and the following order was passed:

'No further steps taken by the applicants and the Order No. 40 of 14-3-47 has not been complied with. Ordered that the Miscellaneous Case be dismissed for default.'

4. It was in these circumstances that an application under Section 151, Civil P. C., was filed by the applicant praying for restoration of the miscellaneous case, that is to say, the case started on the application under Section 174 (3) of the Bengal Tenancy Act, after vacating the order passed on 19th March 1947.

5. On 12th June 1948, this application for restoration was allowed by the learned Munsif and as stated above the dismissal order passed on 19th March 1947, was set aside.

6. In support of the present application, it is argued, in the first place, that an appeal lay under the provisions of Section 174 (5), Bengal Tenancy Act against the order of dismissal for default and consequently 'the Court acted illegally in the exercise of jurisdiction in allowing the application under Section 151, Civil P. C. Secondly, it ia argued that the Munsif, who passed the order of dismissal for default, having ceased to be the presiding officer of the Court, his successor is office was not entitled in law to give any relief under the provisions of Section 151, Civil P. C.

7. Taking the second point first, we are unable to agree that any such limitation, as suggested by the learned Advocate, can be placed in the way of the Court making orders under Section 151, Civil P. C. What this section lays down is this:

'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.'

8. The fact that one officer has ceased to preside over a Court and is succeeded by another gentleman does not mean that the Court has ceased to exist, or that the Court is another Court. It is the Court, which in the exercise of its inherent power, can, and where necessary should, make orders for the ends of justice. There seems no reason why we should limit this power given by the Legislature to the Court by laying down that it is only when the same presiding officer continues that an order already passed can be altered. Reliance was placed by the learned advocate on the decision of the Patna High Court in the case of Bisheshwar Pratap Narain Sahi v. Asarfi Singh, 74 I. C. 110: (A. I. R, (11) 1924 Pat. 136). In that case a decree had been passed declaring that the plaintiffs were entitled to, among other things, profits with respect to properties of schedule IV, but subject to the decision of the Privy Council, for three years before suit and for subsequent period until delivery of possession, or three years after the decree whatever event first occurred. The application, for execution of the decree having been made before the Judge who actually passed the decree, the learned Judge allowed execution in respect of the properties of schedule IV, also, on an application under Section 144, Civil P. C., having been made by the opposite party, the presiding officer, who was not the Judge who had passed the decree and dealt with the execution application in the first stage, passed an order, purporting to Act under Section 151, Civil P. C., for the restoration of these properties to the opposite party on the ground that in his opinion 'possesion over these properties could not be delivered before the decision of the Privy Council.'

9. The learned Judges of the Patna High Court held that this order of the learned Subordinate Judge could not be supported and that Section 151, Civil P. C., gave him no power whatever to recall an order which had been passed by his predecessor in office.

10. I am unable to agree that this observation is intended to lay down, or does lay down any general proposition that whenever there has been a change in the presiding officer of the Court, the succeeding officer cannot pass any order in exercise of powers under Section 151, Civil P. C. if such orders would have the effect of altering some decision of his predecessor. Quite clearly in the case before the Patna High Court, the succeeding officer was of opinion that his predecessor had made a mistake in law in ordering delivery of possession of certain properties and he thought that under Section 151, Civil P. C. he was competent to pass another order setting aside his predecessor's order in order to correct the mistake of law. In this way, the Subordinate Judge was really sitting in appeal over his predecessor which he in law was certainly not entitled to do. It was in these circumstances, that the Patna High Court in substance, held that by calling his order an order under Section 151, Civil P. C. the learned Subordinate Judge could not act in a way which really amounted to sitting in appeal over his predecessor.

11. In our opinion, whether a succeeding presiding officer can interfere with an order passed by his predecessor in office or not depends entirely on the circumstances of each case. The case may not be a suitable case for the exercise of powers under Section 151, Civil P. C. at all; but if it is a suitable case the fact that there has been a change in the officer presiding over the Court would create no difficulty in his way. For, as we have already stated, the Court remains the same Court, though the presiding officer changes.

12. The other contention pressed by the learned advocate is that when an appeal lay against the dismissal order, the Court acted wrongly in restoring the case under Section 151, Civil P. C. Sub-section (5) of Section 174, Bengal Tenancy Act provides for an appeal against an order setting aside or refusing to set aside a sale. It has been held more than once by this Court that, an order dismissing an application for setting aside a sale for default amounts to an order refusing to set aside a sale and so an appeal lay. Vide the cases of Debendra Nath v. Gopal Chandra Das, 42 C. W. N. 128, and Haji Mohammad Kazibulla Mondal v. Humayun Reza Choudhury : AIR1938Cal454 . I respectfully agree with these decisions, and with the learned advocate that an appeal did lie against the order of dismissal passed by the Munsif on 19th March 1947.

13. It is also correct to say that ordinarily speaking the Court should not interfere under the provisions of Section 151, Civil P. C. with orders against which the parties have other redress in law. Ordinarily, the exercise of inherent jurisdiction under Section 151, Civil P. C. should be limited only to cases where the parties have no other redress in law. The circumstances in this case are, however, very peculiar. Though the order dated 19th March 1947, purports to be an order of dismissal for default, what really happened was that the case was taken up by the Munsif on a date other than the date which had been fixed by him in the presence of the parties for the hearing of the case. It was really the mistake of the Court itself and a very serious mistake to take up a case for hearing on a date other than the date it has fixed in the presence of the parties. This can only be done where the alteration of the date is made with the knowledge and consent of the parties concerned. That was obviously not done in this case. It seems to me that in circumstances of this nature it is not only the right but the duty of the Court to try to correct its own mistake. That mistake consisted in taking up the case for hearing on a date other than the date fixed and dismissing the case on the mistaken view that the parties had not taken steps which they ought to have taken. The only way to correct that mistake was to set aside the order passed under this misapprehension by taking up the case on a wrong date and that was the order which was actually passed, under Section 151, Civil P. C, I think this a proper use of powers under Section 151, Civil P. C.

14. Even supposing that as an appeal lay against the order of dismissal for default, this was an unorthodox use of the powers under Section 151, Civil P. C. I am of opinion that in the circumstances of this case it would be an improper use of our discretionary juridsiction, to interfere with the order passed by the learned Munsif restoring the case.

15. For all these reasons I would dismiss this application and discharge the rule. Parties will bear their own costs.

P.N. Mitra, J.

I agree


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