Title: Mahendra Lal vs Mst. Rekhia And Ors. on 25 August, 1970

Patna High Court
Mahendra Lal vs Mst. Rekhia And Ors. on 25 August, 1970
Equivalent citations: AIR1971PAT382, AIR 1971 PATNA 382
ORDER
 

 B.N. Jha, J.
1. One Rambilash Koeri, pre-decessor-in-interest of the opposite party, being unsuccessful at the trial, filed Title Appeal No. 101 of 1962 in the court of the District Judge, Shahabad on April 7. 1962, After the appeal became ready. September 3, 1962, was fixed for hearing of the appeal. As the learned District Judge was engaged in some other case, the appeal was adiourned to November 15. 1962 for hearing. In the meantime, the appeal was transferred to the court of Subordinate Judge. 1st court. Arrah. for favour of disposal. From November 15, 1962, the appeal was adiourned several times. On August 3, 1966, which was the date fixed for the hearing of the appeal, a petition for time was filed by the advocate of the appellant on the around that the advocate who was to argue the appeal fell ill on August 2, 1966 and he was not in a position to attend the court on August 3, 1966, the date fixed for the hearing of the appeal. From the order sheet it appears that no order on the petition for time filed on behalf of the advocate was passed. The appeal was called out but nobody turned up to argue the appeal. The lawyer for the respondent was present. Hence the court dismissed the appeal for default.
2. On August 6. 1966. Rambilash Koeri filed an application, being miscellaneous case No. 52 of 1966. for restoration of the appeal on various grounds alleged in the restoration application. Though the petition is labelled under
Order 9 Rule 9 of the Code of Civil Procedure
(hereinafter referred to as 'the Code') but in fact the application was under Order 41 Rule 19 of the Code. After several dates, the case was called out on December 2, 1967. From the ordersheet it appears that the case was called out but nobody appeared on repeated calls and the case was. therefore, dismissed for default. On December 4, 1967. Rambilash Koeri filed an application for restoration of the miscellaneous case, being miscellaneous case No. 129 of 1967. This application was verified by the applicant Rambilash Koeri and was signed by his lawyer. It was alleged in the application that the applicant, was present on December 2, 1967 from 11 A. M. till 4.30 P. M, and he had not gone out. The petitioner's advocate and his clerk visited the court room several times but found the court busy in some other case. The petitioner's advocate and his clerk requested the bench clerk. Shri Umar Mian, at about 1 P. M, to set the case heard. The bench clerk asked them to come at 3 P. M. Both of them came to court at 3 P. M, as desired by the bench clerk and waited there for about half an hour but the case could not be taken up.
In the cause list, however, which was hung at about 4.30 P. M. the petitioner's advocate's clerk noticed that the case had been shown as dismissed for default. The petitioner, thereafter, went to the court who was sitting at that time and complained that the case had not been called out and although he was waiting there from 11 A. M. till then vet the case had been dismissed for default. The other allegation was that the case was not shown on the cause list of December 2, 1967, or on the earlier date i.e. on November 10. 1967. Subsequently thereafter, Rambilash Koeri died and his heirs who are opposite party here were substituted in his place.
3. At the hearing of the application two witnesses (i) the clerk of the advocate and (ii) the widow of Rambilash Koeri were examined in support of the allegations made in the restoration, application. The learned Subordinate Judge found the allegations made in the restoration application to be correct. Before him it was however, canvassed that the application for restoration was not maintainable in law and reliance was placed on a Full Bench decision of this Court in
Doma Choudhary v. Ram Naresh Lal
AIR 1959 Pat 121. But having considered the evidence and the circumstances of the case, the learned Subordinate Judge felt that the court should exercise its inherent powers in the ends of justice in this case as otherwise there would be miscarriage of justice. In that view of the matter, the restoration application was allowed, the order of dismissal of miscellaneous case No. 52 of 1966 was set aside and the case was restored to its original file. Hence, the petitioner has come up to this Court in revision.
4. Learned counsel for the petitioner, reiterated the same objection which was advanced on his behalf in the court below to the effect that the court below could not entertain an application for the restoration of the miscellaneous case. In support of this contention he relied on a Full Bench decision of this Court In AIR 1959 Pat 121. His argument was that the opposite party could have filed an appeal against the restoration of the miscellaneous case for restoration of the appeal and therefore, the court had no jurisdiction to restore the miscellaneous case under its inherent powers. On the other hand, learned counsel for the opposite party contended that in view of the decision of the Supreme Court in
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal
, AIR 1962 SC 527 the Full Bench decision of the Patna High Court
,
referred to above
. Is no longer good law. In the Supreme Court a question arose as to whether the court could issue an ad interim injunction under the circumstances which are not covered by Order 39 of the Code if the court was of the opinion that the interest of justice required the issuance of such interim injunction. The Supreme Court held that the courts have inherent jurisdiction to issue temporary injunction in the circumstances which are not covered by the provisions of Order 39 of the Code. The Supreme Court held that Inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in
Section 151
itself but those powers are not to be exercised when their exercise may be in conflict with what had been expressly
provided in the Code or against the intentions of the legislature.
On the basis of the aforesaid observations of the Supreme Court learned counsel contended that as there is no express provision in the Code for the restoration of a miscellaneous case, dismissed for default, the court could exercise its inherent powers in suitable cases to restore it. He submitted that Order 9 of the Code provides for the restoration of suits dismissed for default and Order 41 Rule 19 provides a machinery for the re-admission of an appeal, if dismissed for default. But there is no such express provision for the restoration of a miscellaneous case dismissed for default under the circumstances beyond the control of the applicant.
5. There is good deal of force in the argument of learned counsel for the opposite Party but it is not necessary for me in the present case to express any concluded opinion on his submission. The matter can be examined from another point of view. The Full Bench decision of the Patna High Court did not lay down any absolute proposition that the court is helpless in restoring a case dismissed for default where appeal is provided. Kamala Sahay. J, who delivered the leading judgment, observed as follows fat page 127):
"I do not wish to lay down that a court cannot act in exercise of its inherent power at all in setting aside, or modifying an order passed by itself; but it is manifest that as I have already observed, it can do so when special circumstances amounting to abuse of the process of the Court exist; for instance, where there is a gross mistake of the kind committed in AIR 1950 Pat 497 or where there is a fraud committed upon the Court itself as referred to in ILR 31 Pat 737 = (AIR 1952 Pat 478) (supra) it can certainly act in exercise of its inherent jurisdiction."
It was pointed out by the Privy Council in
Raja Debi Bakhsh Singh v. Habib Shah
, 40 Ind App 151 at p. 155 (PC) that quite apart from
Section 151
, any court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.
The Supreme Court also in
Keshardeo Chamria v. Radhakissen Chamria
, AIR 1953 SC 23 = 1953 SCR 136 held that the judge has jurisdiction to correct his own error without entering into discussion of the grounds taken by the parties.
6. In the present case the court below has accepted the allegations of the applicant-opposite party that the applicant was all along in court. His lawyer several times went to enquire as to when the case would be taken up the bench clerk asked him to come at 3 P. M. the applicant's lawyer as well as the clerk remained in court for about half an hour but still the case could not be taken as the court was otherwise engaged. The applicant remained till 4.30 P. M. when the clerk found on the cause list that the case had been dismissed for default. The applicant thereafter went to the Subordinate Judge who was still sitting in court and informed him about the fact that the case had never been called out but still it had been shown as dismissed for default. The allegation was that all these things had been maneuvered by the bench clerk who was in collusion with the respondent. This happened on December 2, 1967 and on December 4, 1967 restoration application was filed making all these allegations. If all these allegations are true, which the court has believed to be so, there is no scope for the argument that the court has no inherent powers to give relief to the applicant by restoring the miscellaneous case. It is a case of fraud practised upon the court and, in my opinion, the court was perfectly justified in exercising its inherent powers by restoring the miscellaneous case. Therefore, there is no substance in the contention that the court had no jurisdiction to restore the miscellaneous case which had been dismissed for default.
7. Learned counsel for the opposite party submitted that though the appeal was filed on April 7, 1962. but it was adjourned from time to time on some ground or the other till August 3, 1966 which was the date fixed for the hearing of the appeal. The advocate of the appellant filed an application for time on the ground that he had fallen ill on the previous day and as he was ill he was not in a position to come to court to argue the appeal. The court below did not pass any order rejecting the application and asking the appellant to become ready but it is mentioned in the order-sheet that the appeal was called out no body responded on behalf of the appellants, the lawyer of the respondent was present and therefore, the appeal was dismissed for default. His contention, was that this was not a proper order in this case. The court should have considered the application for time and if he would have considered, he would certainly have granted time in the case. In appeal, a party has got nothing to do only the advocate argues the case and therefore, even if the appellant was not present in court, an application for time had been filed on behalf of the advocate himself on the ground of his illness and that he had not come to court.
His second submission was that the appeal had taken a dilatory course and had been adjourned several times. In such circumstances, the court below should have fixed a peremptory date in presence of the lawyers of the parties, as has been held by the Court in several cases. In such circumstances, learned counsel submitted that this Court may exercise its powers under
Section 115
of the Code and set aside the order of dismissal of the appeal itself passed by the lower appellate court.
In support of his contention he relied on a decision of this Court in
Ramrati Devi v. Ahmad Behari
, AIR 1968 Pat 112 and an unreported decision in Kishori Lal Sao v. Bansi Lal Sao, Civil Revn.
No. 550 of 1965 decided on 11-5-1967 (Pat) and yet another unreported decision in Laliteshwar Prasad Sinha v. Surendra Prasad, M. A. No. 265 of 1967 decided on 22-12-1969 (Pat). In all these cases this Court suo motu exercised its powers under
Section 115
of the Code and set aside the order of the court of the first instance. Since the matter is pending before the lower appellate court, which will take into consideration all the facts and circumstances of the case and pass necessary orders on the application of the opposite party. I do not propose to express any opinion on the contentions raised by learned counsel for the opposite party.
8. For the reasons stated above, the application fails and it is accordingly, dismissed with costs. Hearing fee Rs. 32/-.