Beepathumma v. Abdul Kadar Mooppen — 1955 DIGILAW 35 (KER)

Judgment :- 1. The second defendant is the revision petitioner. The revision petition is from an order refusing to restore to file a suit which was dismissed for default. The suit was one for partition. A preliminary decree for partition was passed on 6.5.1121. Under the preliminary decree the seventh defendant was declared to be entitled to 5/62 share in the suit properties. The case was posted to 1.7.1121 for application for the issue of a commission to divide the properties by metes and bounds and to 25.7.1121 for passing the final decree. No steps were taken by any party for dividing the properties and the court suo moto adjourned the case to 17.8.1121/30.3.1946. On that date the suit was dismissed on the ground that neither the plaintiff nor his counsel was present and that no steps were taken by any of the parties for getting the properties divided. A decree dismissing the suit was also drawn up. 2. On 16.6.1951 the seventh defendant filed a petition, M.P. 776 of 1951, for restoring the suit to file. The petition, purported to be under O. XLVII, R.1 and S.151 of C.P.C. M.P. 774 of 1951 was filed by her on the same day for passing a final decree in the case and M.P. 775 of 1951 was filed for condoning the delay in filing M.P. 774 of 1951. The main petition was M.P. 776 of 1951. It was contended by the seventh defendant that the dismissal of the suit was without jurisdiction. Defendants 1 and 3 to 7 opposed the petition contending that it was not maintainable and was barred by limitation. The seventh defendant filed M.P.1378 of 1952 for condoning the delay in filing M.P. 776 of 1951. The court below held that since the seventh defendant did not seek to have the order dismissing the suit set aside by appropriate steps taken within the time prescribed by law, the petition was not maintainable. It was also held that there was no satisfactory explanation for the long delay in filing the restoration petition. The petition was accordingly dismissed. 3. It was contended for the revision petitioner that the order dismissing the suit after a preliminary decree was passed in the case was one passed without jurisdiction, that it could be ignored and that it was, therefore, not necessary to have it set aside. The petition was accordingly dismissed. 3. It was contended for the revision petitioner that the order dismissing the suit after a preliminary decree was passed in the case was one passed without jurisdiction, that it could be ignored and that it was, therefore, not necessary to have it set aside. It was also contended that in any case the court could set it aside at any time in the exercise of its inherent jurisdiction. 4. It is not disputed by the respondents that the court went wrong in dismissing the suit for default after a preliminary decree for partition was passed in the case. In Lachmi Narain Marwari v. Balmakund Marwari (1924 P.C.198) the Privy Council held that "after a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal", the reason being that "the parties have on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside". In that case a preliminary decree for partition was passed in appeal by the High Court and the suit was remitted to the Subordinate Judge for passing a final decree. On the day to which the case was posted neither the plaintiff nor his counsel was present and the court dismissed the suit for default. In revision filed from this order the High Court set it aside. From the order of the High Court an appeal was filed before the Privy Council. The Privy Council confirmed the order of the High Court, and held that the order of the Subordinate Judge dismissing the suit was one passed without jurisdiction. 5. In Joha Singh v. Padey Gokharan Das (1925 All. 622) a preliminary decree for sale was passed by the court and the case was posted for further steps. On one of the days to which the case was posted the plaintiff was absent and the court dismissed the suit for default. Sulaiman and Mukharjee, JJ. held that the order dismissing the suit was illegal. 6. To the same effect are the decisions of the Oudh Chief Court in Puran Lal v. Komal Singh (1933 Oudh 229) and Girdhar Gopal v. Nawab Ali (1934 Oudh 209). In the former case after a preliminary decree for sale was passed, the plaintiffs applied for passing a final decree. held that the order dismissing the suit was illegal. 6. To the same effect are the decisions of the Oudh Chief Court in Puran Lal v. Komal Singh (1933 Oudh 229) and Girdhar Gopal v. Nawab Ali (1934 Oudh 209). In the former case after a preliminary decree for sale was passed, the plaintiffs applied for passing a final decree. On one of the days to which the case was posted the parties were not present, and the court dismissed the suit. About two and a half years afterwards the plaintiffs applied to have the suit restored to file and to have a final decree passed in the case. On the authority of the decision of the Privy Council in 1924 P.C.198 it was held that the trial court went wrong in dismissing the suit for default and in not passing a final decree on the application of the plaintiffs. The learned judges observed: "In our opinion the rights and liabilities of the parties have been fixed by the preliminary decree. The refusal to grant the final decree is in effect a reversal of the preliminary decree. This cannot be done. Though the plaintiffs were negligent in the matter they were entitled to the relief which they prayed for and this relief should have been granted to them by setting aside the order of 29th September 1928 and passing a final decree in the manner required by law". This decision was followed in 1934 Oudh 209. 7. The same view was taken by the Madras High Court in Venkitaswamy v. Balakrishnan (1947 Madras 47). In that case after a preliminary decree for partition was passed the case was posted for the appointment of a commissioner to divide the properties. As the cost of issuing the commission was not deposited by any of the parties the court passed an order to the effect that the case was 'closed'. The High Court held that the order did not amount to a disposal or dismissal of the suit and that even if it did amount to a dismissal the suit would still be held to be pending. 8. It is clear from the above rulings that the court acted illegally in dismissing the suit for default in this case. The High Court held that the order did not amount to a disposal or dismissal of the suit and that even if it did amount to a dismissal the suit would still be held to be pending. 8. It is clear from the above rulings that the court acted illegally in dismissing the suit for default in this case. But it is contended for the respondents that, although the order dismissing the suit is illegal, it is not a nullity and that so long as it was not sought to be vacated by any of the parties in the manner provided by law by steps taken within time, it will stand and the court cannot set it aside in the exercise of its inherent jurisdiction. The question, therefore, for consideration is whether the order dismissing the suit was one passed without jurisdiction and therefore a nullity or whether it was merely a wrong order. The further question is whether, even if the order is not a nullity, the court can set it aside in the exercise of its inherent jurisdiction. 9. In 1924 P.C.198 the view taken by the Privy Council was that the court had no jurisdiction to dismiss the suit for default after passing a preliminary decree. In that view of the case Their Lordships did not think it necessary to decide the question whether the matter came under paragraph (c) of S.115 of the Code of Civil Procedure. Their Lordships said: "Their Lordships do not think it necessary to determine that the case came under paragraph (c) to S.115. But they think that the order which he (subordinate judge) made was one which he had no jurisdiction to make". Their Lordships then came to the following conclusion: "For the reasons which have been given the case did not come under O. XVII, R.2, and the order made was made without jurisdiction and was rightly set aside by the High Court". The same was the view taken by the Madras High Court in 1947 Madras 47 referred to above. According to Yahya Ali, J. who decided that case, notwithstanding the order of dismissal of the suit the suit would still be deemed to be pending. If that is the case it is clear that it was not necessary to have the order set aside. 10. According to Yahya Ali, J. who decided that case, notwithstanding the order of dismissal of the suit the suit would still be deemed to be pending. If that is the case it is clear that it was not necessary to have the order set aside. 10. Even if the order is only an illegal order and not a nullity, we are of opinion that the court can set it aside in the exercise of its inherent jurisdiction under S.151 C.P.C. That was the view taken in Joha Singh v. Padey Gokharan Das (1925 All. 622) already referred to, and in Yagammal v. Arulayee Ammal (1930 Madras 158) and Harlal Kampi v. Jhari Singh (1936 Patna 93). In 1925 All. 622, the application for restoring the suit to file was made long after the expiry of the period of limitation. It was held that the court could rectify the mistake in the exercise of its inherent jurisdiction. In 1930 Madras 158, Venkitasubha Rao, J., observed: "The order dismissing the suit cannot be treated as one made under the provisions of O. IX, Civil Procedure Code. That is the effect of the decision of the Privy Council to which we have referred (i.e., 1924 P.C.198). It follows necessarily that although the plaintiffs' application to restore the suit purports to have been made under O. IX it is not in fact governed by the provisions of that Chapter at all. It must be deemed to be an application under S.151 for the exercise of the court's inherent powers". In 1936 Patna 93 Luby, J., said: "After a decree has once been made in a suit the suit cannot be dismissed unless the decree is reversed on appeal and even if the decree-holder's second application was filed after the expiry of the period of limitation the court had full power to restore the original application and make its preliminary decree final for the ends of justice under S.151, Civil Procedure Code". Reference may also be made to the following observation of Mudholkar, J., in Khatizhai v. Azhtara Begam (1950 Nag. 194): "It seems to me clear in principle that where a court dismisses a suit in default in circumstances when it has no jurisdiction to do so, it can rectify its error by resorting to its inherent jurisdiction". 11. Reference may also be made to the following observation of Mudholkar, J., in Khatizhai v. Azhtara Begam (1950 Nag. 194): "It seems to me clear in principle that where a court dismisses a suit in default in circumstances when it has no jurisdiction to do so, it can rectify its error by resorting to its inherent jurisdiction". 11. Learned Counsel for the respondents relied on the decisions in Sreeramaulu v. Naghbhushanam (1928 Madras 963) and Kirpal Singh v. Dalib Singh (1936 Lahore 875) in support of the position that, although the order dismissing the suit for default was illegal, so long as it was not set aside by means of steps taken by the aggrieved party within the time prescribed by law, he will be bound by it. In 1928 Madras 963 after a preliminary decree for partition was passed by the court, the case was posted to a particular date for the appointment of a commissioner to divide the properties by metes and bounds. But, on that date the plaintiff did not appear and the court adjourned the case to another date. On that date also there was no appearance for the plaintiff and the suit was dismissed. Four years afterwards the plaintiff applied for restoration of the suit and also for passing a final decree. The application for restoration was dismissed on the ground that it was filed out of time and the application for passing final decree was also dismissed on the ground that the court had no jurisdiction to pass a final decree in a suit which was not on its file. It was contended for the plaintiff that the order dismissing the suit was one passed without jurisdiction and that he was therefore not bound to have it set aside. This contention was repelled by the High Court. Devadoss, J., observed: "In this case the proper course would have been for the petitioner to have applied to have the order of the District Munsiff revised by this High Court. That step he did not choose to take. Four years after he applied the court to restore the suit to file. This contention was repelled by the High Court. Devadoss, J., observed: "In this case the proper course would have been for the petitioner to have applied to have the order of the District Munsiff revised by this High Court. That step he did not choose to take. Four years after he applied the court to restore the suit to file. If the contention of the petitioner is upheld it would amount to this, that after the suit is dismissed, though improperly, the party to the suit might come up and say that the order, having been passed without jurisdiction, is no order at all, and that he is entitled to ignore it. When a court dismisses a suit improperly, the suit is taken off the file and unless the suit is again brought to file, the court becomes functus officio and so far as that suit is concerned cannot pass an order. The case in Lechmi Narain Marwari v. Balukund Marwar (1924 P.C. 198) does not go the length of enabling a court to ignore the order passed in a suit by which it directed that the suit be taken off the file. When a court dismisses a suit the suit ceases to be on its file". The contention of the plaintiff in the case was that the order dismissing the suit was one passed without jurisdiction and not that it was merely a wrong or improper order. According to the decision of the Privy Council in 1924 P.C.198 the order would be one passed without jurisdiction. That was the view taken by the Madras High Court in 1947 Madras 47. It was held in that case that notwithstanding the order dismissing the suit will still be deemed to be pending. In 1928 Madras 963 the learned judges did not decide the question whether the order dismissing the suit was one passed without jurisdiction or whether it was merely a wrong order. If the order was one passed without jurisdiction we are unable to agree with the view that it was necessary to have it set aside. 12. In 1936 Lahore 875 also the facts are more or less similar. If the order was one passed without jurisdiction we are unable to agree with the view that it was necessary to have it set aside. 12. In 1936 Lahore 875 also the facts are more or less similar. Jai Lal, J., held in that case that although the order dismissing the suit was illegal it could not be ignored and that it was necessary to have it set aside in due course of law, either by review or by an application to set aside the dismissal or by an appeal or revision. The learned judge proceeded on the basis that the order dismissing the suit was only an illegal order and not one passed without jurisdiction. But, as stated already, that was not the view taken by the Privy Council in 1924 P.C.198. The question whether the court can in the exercise of its inherent jurisdiction set aside the order of dismissal and restore the suit to file was not considered either in 1928 Madras 963 or in 1936 Lahore 875. 13. For the reasons stated already, we hold that the order dismissing the suit in this case was one passed without jurisdiction and is, therefore, a nullity. We are also of opinion that even if the order is not a nullity the court is competent to set it aside in the exercise of its inherent jurisdiction. We, therefore, reverse the order of the court below and direct that court to take the case back into its file and pass a final decree. The revision petition is allowed with costs.