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Hans Raj Sood Vs. State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberC.M.P. No. 1572 of 1977 in C.W.P. No. 4 of 1977
Judge
Reported inAIR1978HP68
ActsConstitution of India - Article 226; ;Code of Civil Procedure (CPC) , 1908 - Section 108; ;Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Section 141
AppellantHans Raj Sood
RespondentState of Himachal Pradesh and ors.
Appellant Advocate Ramesh Chand, Adv.
Respondent AdvocateAdv. General
DispositionPetition allowed
Excerpt:
- .....draws our attention to the provisions contained in the explanation attached to section 141 of the civil procedure code and contends that no such restoration application is maintainable.section 141, c. p. c., says that:--'the procedure provided in this code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. explanation :--in this section, the expression 'proceedings' includes proceedings under order ix, but does not include any proceeding under article 226 of the constitution.' it is obvious that what the above explanation says is merely that the proceedingsunder article 226 of the constitution do not amount to 'proceedings' within the meaning of section 141. in other words, it would mean that so far as the.....
Judgment:

T.U. Mehta, Actg. C.J.

1. By this application, the petitioner wants the restoration of the main writ petition on the ground that the matter was on that day fixed on the Board of Hon'ble the Chief Justice and the Hon'ble Mr. Justice Thakur. But on that day Hon'ble Mr. Justice Thakur could not attend the Court and, therefore, the petitioner's Advocate thought that the matter would not be taken up. However, the matter was taken up by a different Bench consisting of Hon'ble the Chief Justice and myself and when it was called by the reconstituted Bench, the writ petition was dismissed for default as nobody was present.

2. The learned Advocate-General draws our attention to the provisions contained in the Explanation attached to Section 141 of the Civil Procedure Code and contends that no such restoration application is maintainable.

Section 141, C. P. C., says that:--

'The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

Explanation :--In this section, the expression 'proceedings' includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.'

It is obvious that what the above Explanation says is merely that the proceedingsunder Article 226 of the Constitution do not amount to 'proceedings' within the meaning of Section 141. In other words, it would mean that so far as the proceedings under Article 226 of the Constitution are concerned, the procedure provided in the Code in regard to the suits would not apply. However, that does not run counter to the exercise of this Court's extraordinary jurisdiction under Article 226 of the Constitution. It may be noticed here that for the purpose of exercise of its jurisdiction under Article 226 of the Constitution, the High Court does not depend on the provisions of the Civil P. C. The procedure prescribed by the Civil P. C. is followed by the High Court in the exercise of its inherent jurisdiction under Article 226 of the Constitution not because of any legal compulsion to do so but because that procedure complies with the rules of natural justice. Under the circumstances, even if this Court is not bound by the procedure contemplated by the Civil P, C. in writ applications, the court can use Its inherent jurisdiction to remedy certain wrongs and, therefore, if It is found that a particular writ petition has been dismissed for default, and the default in question was occasioned on account of some reasonable cause, there is nothing to prevent the High Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution to order restoration,

3. Considering the facts of the case, we find that there are sufficient grounds for restoring the writ petition, The same is, therefore, restored and be put on Board for admission on April 28, 1978.


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