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Nanak Chand Vs. Paras Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 26 of 1956
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 9, Rule 9 - Order 43, Rule 1; ;Limitation Act, 1908 - Schedule - Article 163
AppellantNanak Chand
RespondentParas Ram
Appellant Advocate Manmohan Nath, Adv.
Respondent Advocate Chhabil Das, Adv.
DispositionRevision allowed
Cases ReferredPitambar Lal v. Dodee Singh
Excerpt:
- .....dismissals of suits and appeals in default of appearance; but those provisions do not apply to civil revision petitions and as there is no corresponding provision relating to civil revision petitions, the court has no jurisdiction to restore to the file, civil revision petitions, which have been dismissed for default of appearance. the petitions cannot be restored under section 151, because that section does not confer upon a court the power to exercise a jurisdiction which it does not otherwise possess.'(9) where, as in this case, the application to set aside the dismissal of the suit (which had been dismissed in default) was, itself, dismissed in default, two remedies were open to the plaintiff. he could have either gone up in appeal against the order dismissing the application.....
Judgment:

(1) This revision petition, by a defendant, arises out of an order passed by the Subordinate Judge of Theog on 7-5-1956, purporting to restore an application under Order 9, Rule 9 (which had been dismissed in default on 14-1-1955) in the exercise of his inherent powers under Section 151, Civil P. C.

(2) The following dates are material in this case. The suit, giving rise to the present revision petition, was instituted on 1-10-1954. It was dismissed in default of the plaintiff on 3-11-1954.

An application under Order 9, Rule 9, was filed by the plaintiff on 13-11-1954, seeking the restoration of the suit. This application was also dismissed in default of the plaintiff on 14-1-1955. On 26-3-1955, an application, purporting to be under Section 151, Civil P. C., was put in by the plaintiff, wherein the inherent powers of the Court were invoked to restore the application under Order 9, Rule 9.

(3) On notice of the application under Section 151, Civil P. C., being given to the defendant, the latter contended that the application was not only incompetent, but was also time-barred. In the alternative, he pleaded that there was no sufficient cause for restoring the application under Order 9, Rule 9.

(4) The learned Subordinate Judge, Theog, held that the application under Section 151 was competent and the period of limitation for such an application would be governed by Article 181, Limitation Act, which provides for three years limitation. On merits, he found in favour of the plaintiff and, accordingly, he restored the application under Order 9, Rule 9.

(5) This revision petition was admitted on 21-7-1956, inter alia, on the question whether an application to restore an application under Order 9, Rule 9 (which had been dismissed in default) would be governed by Article 181.

(6) Arguments of the learned counsel for the parties were heard on the 23rd instant.

(7) In coming to the conclusion that an application under Section 151 to restore an application under Order 9, Rule 9 (which had been dismissed in default), would be competent, the Court below has expressed its view that no appeal lay against the order, dismissing the application under Order 9, Rule 9, in default on 14-1-1955.

In my opinion, however, for reasons to be stated shortly, such a view is not correct. Ma-danlall Agarwalla v. Tripura Modern Bank Ltd., AIR 1954 Assam 1 (FB) (A), qited by learned counsel for the respondent and which has been referred to by the trial Court, is a decision which goes against the respondent. In the above case, the majority view of Sarjoo Pro-sad, C. J. and Deka, J., was:

'No matter whether an application under Order 9, Rule 13, is dismissed for default or on the merits, an appeal will be competent under Order 43, Rule 1 (d).'

On the same analogy, it can be said that, irrespective of whether an application under Order 9, Rule 9, is dismissed in default or on merits, an appeal would lie under Order 43, Rule 1 (c). A similar view was taken by the Allahabad High Court in Uma Dutt v. Mt, Zakia Bibi, AIR 1936 All 737 (B). There, a Division Bench of that High Court held that where an application under Order 9, Rule 9, was dismissed because the plaintiff deposited the process-fee too late, an appeal would lie under Order 43, Rule 1 (c), although there had been no adjudication on the merits of the application. A similar view was taken also in Kamma Narasayya v. D. Thimmappa, AIR 1943 Mad 584 (C), where a learned Judge of that High Court held that:

'An order dismissing for default an application under Order 9, Rule 9, is appealable under Order 43, Rule 1 (c).'

I am, therefore, of the opinion that it was open to the plaintiff, in this case, to go up in appeal against the order dated 14-1-1955, dismissing his application under Order 9, Rule 9, though in default,

(8) The question then arises as to what other remedy was open to the plaintiff, he not having availed himself of the right of appeal. In AIR 1954 Assam 1 (FB) (A), referred to earlier, it was held that in appropriate cases, a remedy may be available to the party aggrieved by means of an application under Section 151.

In my opinion, with great respect, it is not ordinarily open to a Court to invoke its inherent powers to go behind the statute, which has provided for an express remedy for a particular default. In Daropadi Mt. v. Atma Ram, AIR 1933 Pesh 59 (D), a Division Bench of that High Court observed that:

'Where a statute has provided one express remedy for a particular default, it is not competent for the Courts to go behind the statute by the exercise of their inherent powers and create remedies other than those provided by it. In a matter of this kind the statute must be regarded as comprehensive.'

'A Court is not, therefore, competent to bring its inherent powers into play in order to restore an order made under Order 9, Rule 9, in case where no sufficient cause for non-appearance has been established.'

A similar view was taken in Ramamurthi Iyer v. Meenakshisudarammal, AIR 1945 Mad 103 (E), where Byers, J., remarked that:

'The dismissal of a cause for default of appearance is as much a final order as a dismissal on the merits; and the Court cannot set aside its own order unless it has jurisdiction to do so. In the case of suits and appeals, the power exists under Order 9, Rule 9, and Order 41, Rule 19, Civil P. C., to set aside dismissals of suits and appeals in default of appearance; but those provisions do not apply to civil revision petitions and as there is no corresponding provision relating to civil revision petitions, the Court has no jurisdiction to restore to the file, civil revision petitions, which have been dismissed for default of appearance. The petitions cannot be restored under Section 151, because that section does not confer upon a Court the power to exercise a jurisdiction which it does not otherwise possess.'

(9) Where, as in this case, the application to set aside the dismissal of the suit (which had been dismissed in default) was, itself, dismissed in default, two remedies were open to the plaintiff. He could have either gone up in appeal against the order dismissing the application under Order 9, Rule 9 (under Order 43, Rule 1 (c) ) or he could have filed another application under Order 9, Rule 9, provided the same was done within the period of limitation. In Sarat Krishna Bose v. Bisweswar Mitra, AIR 1927 Cal 534 (F), cited by learned counsel for the respondent, Mukerji and Graham, JJ., observed that:

'When an application under Order 9, Rule 9, for restoration of the suit is dismissed for default under Rule 4 of that Order, no application lies under Order 9, Rule 9, for setting aside that order of dismissal and for restoration and re-hearing of the former application under Order 9, Rule 9, but the second application may be treated as an application to restore the suit itself and not to restore the first application, and if it is within time, there can be no bar to its being dealt with as an application under Order 9, Rule 9, Civil P. C.' In Nalu Subba Row v. Gauti Venkataratnam, AIR 1914 Mad 438 (1) (G), Tyabji, J., held that a second application to restore a suit, which had been dismissed in default, was time barred because it was made two months after the dismissal of the suit. Under Article 163 of the Limitation Act, an application to set aside a dismissal for default should be made within 30 days of the dismissal.

I am unable to support the view of the Court below that an application under Section 151, Civil P. C., would be competent in every case to restore an application under Order 9, Rule 9 (which had also been dismissed in default), and such an application would be governed by Article 181, Limitation Act, i.e., which prescribes 3 years limitation. If the Subordinate Judge's view is upheld, a very curious situation would be created. As was pointed out in Pitambar Lal v. Dodee Singh, AIR 1924 All 503 (H):

'In this event, a litigant may go on for ever and apply to restore in an uninterrupted stream of unsuccessful applications.' This would lead to an impossible situation and would defeat the provisions of Article 163. It is noteworthy that, in the present case, the application under Section 151, Civil P. C., was made 71 days after the application under Order 9, Rule 9, was dismissed in default, i.e., long after the expiry of the period of limitation for filing a fresh application under Order 9, Rule 9, Or for filing an appeal under Order 43, Rule 1 (c).

(10) Therefore, even if it be assumed that this Court would invoke its inherent powers in an extreme case to set aside a dismissal in default in the interest of justice, the facts of the present case in my view would not justify such an exceptional course.

(11) In view of what has been said above, I am unable to support the order of the Court below. (12) I allow this revision petition and set aside, the order of the Subordinate Judge. Theog, dated 7-5-1956 in Civil Miscellaneous Petition No. 5 of 1955, whereby he purported to restore the application under Order 9, Rule 9, which had been dismissed in default on 14-1-1955 in the exercise of his inherent powers.

Since this appears to be the first case of the kind, which has come to my notice, I leave parties to bear their respective costs of this revision petition. Court-fee paid on the revision petition should be refunded to the petitioner under para. 36 (2). Himachal Pradesh (Courts) Order.


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