Skip to content


Kanshi Ram Vs. Mt. Dharmi and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 27 of 1952
Judge
Reported inAIR1953HP102
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 9, Rule 9 - Order 41, Rule 19; ;Limitation Act, 1908 - Schedule - Articles 168 and 181
AppellantKanshi Ram
RespondentMt. Dharmi and anr.
Appellant Advocate K.C. Pandit, Adv.
Respondent Advocate Man Mohan Nath, Adv.
DispositionPetition allowed
Cases ReferredMast Ram v. Sundar Singh
Excerpt:
- .....on behalf of the plaintiff on 3-10-1952.3. there were two preliminary objections taken by the learned counsel for the defendants-respondents: (1) that an application tor restoration of revision dismissed for default does not lie, and (2) that the application for restoration is time-barred. with regard to the iirst objection the learned counsel cited a number of rulings of these--'court of wards v. fatteh singh', 75 pun re 1881 (a);--'umar din v. ala bakhsh', 54 pun re 1901 (b) and --'ilachi ram- v. amir ali', air 1937 lab, 685 (c) have no application. they only say that where the first petition for revision is dismissed for default a second petition for revision can lie. the rulings directly in point cited by the learned counsel for the defendants-respondents are -- 'subbamrna v.....
Judgment:
ORDER

Chowdhry, J.C.

1. This is a plaintiff's application for setting aside the order of this Court dated 2-9-1962 dismissing his revision petition for default of prosecution.

2. The defendants in the case are Mt. Dharmi and Balak Ram. It appears that Sri Man Mohan Nath Advocate appeared for Balak Ram on 20-8-1952 but the other defendant Mt. Dharmi was absent and she had not been served. The case was therefore adjourned and the plaintiff-petitioner was ordered to take fresh steps against Mt. Dharmi within a week. Steps were however not taken despite a reminder, and, as stated, the revision was dismissed for default on 2-9-1952. The present petition for setting aside the order of dismissal and restoration of the revision was filed on behalf of the plaintiff on 3-10-1952.

3. There were two preliminary objections taken by the learned counsel for the defendants-respondents: (1) that an application tor restoration of revision dismissed for default does not lie, and (2) that the application for restoration is time-barred. With regard to the iirst objection the learned counsel cited a number of rulings Of these--'Court of Wards v. Fatteh Singh', 75 Pun Re 1881 (A);--'Umar Din v. Ala Bakhsh', 54 Pun Re 1901 (B) and --'Ilachi Ram- v. Amir Ali', AIR 1937 Lab, 685 (C) have no application. They only say that where the first petition for revision is dismissed for default a second petition for revision can lie. The rulings directly in point cited by the learned counsel for the defendants-respondents are -- 'Subbamrna v Venkata Reddi', AIR 1943 Mad 260 (1) (D), and --'Ramamurthi Iyer v. Meenakshi Sundarammal',. AIR 1945 Mad 103 (E), in both of which it was held that a revision petition dismissed for default of appearance cannot be restored. The point was dealt with more elaborately in the later 01 the two rulings. It was held that the provisions relating to restoration of suits and appeals contained respectively in Order 9, Rule 9 and Order 41, Rule 19, C. P. Code, did not apply to revisions. It was further held that a revision petition dismissed for default could not also be restored under Section 151, C. P. C., because that section did not confer upon a Court the power to exercise a jurisdiction which it did not otherwise possess.

4. With great respect, I am unable to agree with the view expressed in the aforesaid ruling that a dismissed revision petition cannot be restored under Section 151, C. P. C. And my reason for thus respectfully differing from that view is based upon the very circumstances referred to in that ruling for holding that an application for restoration of a dismissed revision petition does not lie, namely, that neither Order 9, Rule 9 nor Order 41, Rule 19, Civil P. C., applied to such petitions. In other words, there is no provision in the Civil Procedure Code for restoration of dismissed revision petitions. If so, if otherwise the case is a fit one, a dismissed revision petition should be restored by a Court in exercise of its inherent jurisdiction under Section 151. The reason for this view is the well-established principle that the inherent power of the Court is meant to meet those cases which are not covered by the express provisions of the Civil Procedure Code. 'Bhagat Singh v. Dewan Jagbir Sawhney', AIR 1941 Cal 670 (F). It is manifest therefore that to apply the provisions of Section 151 to cases not covered by the express provisions of the Code is, not tantamount to assuming jurisdiction not conferred upon a Court, as observed in the aforesaid--'1945 Madras case' (E). I therefore hold that in a fit case a dismissed revision petition can and should be restored under Section 151, C. P. C.

5. As regards the other objection, the learned counsel for the defendants-respondents cites Article 168 of the Limitation Act. If that Article were applicable, the present petition would certainly be time-barred, for it has been filed one day too late. The Article in question is however applicable to appeals. It is, therefore, not applicable for readmission of a revision dismissed for want of prosecution. The learned counsel for the respondents cited an unreported decision of this Court in--'Civil Revn. No. 21 of 1949, Mast Ram v. Sundar Singh', (G). That was a case of an application under Order 22 of the Code which was filed about three months and twenty days after the death of the party in whose place the petitioner wanted to be substituted. If it were a case of a deceased plaintiff or deceased appellant, the prescribed' limitation would have been 90 days from the date of the death under Article 176, as pointed out in that ruling. That was however a case of a revision petition, and it was therefore held that Article 176 did not apply. At the same time, it appears, that keeping that Article in view, it was held that the application for restoration had been made with inordinate delay. It was further found that no reason whatsoever for the delay had been assigned. There was also no application for condonation of delay. In these circumstances, the application in question was disallowed and the revision petition was held to have abated on the grourd that the application had been filed with unreasonable delay and not, be it noted, on the ground that it was time-barred under Article 176 of the Limitation Act. There being no period of limitation prescribed for a petition like the present, the proper Article applicable would seem to be Article 181, which prescribes a period of three years although it is not necessary to lay this down in this case. In any case, even if the matter were to be disposed of merely on the ground of laches, it cannot fairly be held that the present petition should be dismissed on that ground. If it were a case covered by Article 168, the time for filing such application would have been 30 days, and the petitioner has exceeded that time by only one day. It is mentioned in the present petition that steps could not be taken earlier since Mt. Dharmi was moving from place to place and her abode was uncertain. True, this allegation in the present petition is not supported by an affidavit, but it is to be noted that the respondents in their reply have not challenged the correctness, but only the sufficiency, of the reason. The reason assigned by the petitioner for the delay must therefore be accepted as correct, & I hold that it is also sufficient. Both the preliminary objections raised by the learned counsel for the defendants-respondents therefore fail. As regards the merits of the application, I have already disposed of the sa_me in holding that the petitioner had succeeded in giving sufficient reason for not having taken steps prior to 3-10-1952.

6. The petition is allowed, the order of dismissal dated 2-9-1952 is set aside and the revision is restored for rehearing, but, as conceded by the learned counsel for the plaintiff-petitioner, on payment of costs to the defendants- respondents which I fix at Rs. 25/- (Rupeestwenty-five).


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //