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Madhya Pradesh High Court · body

1963 DIGILAW 129 (MP)

Dulichand v. Chainsingh

1963-12-12

P.K.Tare

body1963
ORDER 1. This petition is for setting aside the exparte order, dated, 26-3-1963 passed in Civil Revision No. 550 of 1962 Chainsingh and another Vs. Dulichand, Civil Revision No. 550 of 1962 and for a rehearing of the revision. The ground alleged is that although the petitioner had engaged a counsel, namely Shri R. K. Vijayvargiya Advocate, who had filed his power before the due date namely, on 15-3-1963, the case was not heard on that date stated in the notice. It was actually heard on 26-3-1963, when it was decided ex parte. The counsel did not appear as his name was not mentioned is the cause list. Therefore, he failed to note the case in the cause list. 2. The learned counsel for the respondents urged that Order 41 Rule 21, Civil Procedure Code would not be applicable to a revision under section 115, Civil Procedure Code and, therefore, the present revision for setting aside an exparte order is not tenable. In this connection, attention is invited to the observations of Byers J. in A. Ramamurthi Iyer and others Vs. T. A. Meenakshisundarmmal and another, AIR 1945 Mad. 103 wherein the learned Judge held that a revision under section 115 of the Civil Procedure Code could be dismissed in default but the High Court has no jurisdiction to restore the petition of file, as Order 9 rule 9 read with section 107 of the Civil Procedure Code or Order 41 rule 19, Civil Procedure Code would not be applicable to civil revision. I may only observe that it would lead to an anomalous results, if the High Court were assumed to have power of dismissal in default, and not have the power to restore the revision to file. It is to be noted that the dismissal can take place only by invoking Order 9 rule 3, Civil Procedure Code, or Order 9 rule 8, or Order 41 rule 15-A of the Civil Procedure Code as amended by the Nagpur High Court, and Order 41 rule 17, Civil Procedure Code. In the alternative, the High Court could exercise inherent Powers of dismissal. This dismissal in default of a revision cannot be justified under any specific provision of the Civil Procedure Code. Therefore, if the High Court resorts to anyone of the said provisions, the same, in my opinion, could be invoked for restoration of a revision petition dismissed in default. In the alternative, the High Court could exercise inherent Powers of dismissal. This dismissal in default of a revision cannot be justified under any specific provision of the Civil Procedure Code. Therefore, if the High Court resorts to anyone of the said provisions, the same, in my opinion, could be invoked for restoration of a revision petition dismissed in default. 3. In Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hirala, AIR 1962 S. C. 527, Their Lordships have laid down that apart from the provision of Order 39 rule 1, Civil Procedure Code, the Court in exercise of inherent powers has the jurisdiction to grant an injunction in a case not covered by Order 39 rule 1, Civil Procedure Code: Of course, such an injunction has to be granted in the interest of justice and on some judicial principal in an exceptional case. But all the same, a resort to exercise of inherent powers in suitable cases has been held justifiable by Their Lordships. 4. The same principle, in my opinion, can be applied to other cases of dismissals in default and restorations. It is true that inherent powers are not to be used so as to set at naught the specific provisions relating to procedure in the Civil Procedure Code. But it is only to meet the ends of justice in exceptional cases that inherent power might be exercised. In this connection, I may refer to the observations of a Division Bench of this Court presided over by Hidayatullah C.J. (as he then was) and Mangalmurti J. in Dhondiba Appasaheb and another Vs. Wasudeo Anant Sherlekar and another, AIR 1957 Nagpur. 83, wherein the learned Judge held that a revision dismissed in default could be restored to file under inherent powers. The learned Judges dissented from the view expressed by Byers J. in Ramamurthi Iyer and others V. T. A. Meenakshisundarmmal and another (supra), AIR 1945 Mad. 103 and approved of the view as expressed in Kanshi Ram Vs. Mst. Dharmi, AIR 1953 H. P. 102. In this connection, it may also be noted that there is a specific rule in the Rules framed by the Nagpur High Court for restoration of a revision dismissed in default. 103 and approved of the view as expressed in Kanshi Ram Vs. Mst. Dharmi, AIR 1953 H. P. 102. In this connection, it may also be noted that there is a specific rule in the Rules framed by the Nagpur High Court for restoration of a revision dismissed in default. It is rule 12 of Chapter 4, part I of the High Court Rules, which is as follows:- "All petitions made to this Court for restoration to file Civil Revisions dismissed for default by this Court will be treated as prima facie made without such diligence as ought ordinarily to be shown to entitle the petitioner to the relief, if the period from the date of the order which revision is sought to the date on which the petition is made excluding the time properly spent in obtaining any copy required to be submitted with the petition is more than 30 days'" However, the learned counsel for the respondents urged that, although there is a rule about restoration to file of a revision petition dismissed in default, there is no similar rule for setting aside an exparte order passed in, a civil revision. Therefore, the contention is that this Court has no jurisdiction to set aside an exparte order. In my opinion, a resort to exercise of inherent powers would be necessary to meet such a situation; otherwise we are led to the anomalous situation created by the view as expressed by Byers J. in A. Ramamurthi Iyer and others Vs. T. A. Meenakshisundarammal and another (supra), AIR 1945 Mad. 103 , as this Court would have the power to do damage to a party, but would be supposed not to undo it. It is here that the provisions of section 21 of the M P. General Clauses Act, 1957 or section 21 of the general Clauses Act, 1897 could be invoked. I may reproduce both the sections:- Central Act Section 21, "Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, very or rescind any notifications, orders, rules or byelaws so issued." State Act. Section 21, "Power to make to include power to add, to amend, vary or rescind orders, etc. Section 21, "Power to make to include power to add, to amend, vary or rescind orders, etc. Where, by any Madhya Pradesh Act a power to issue notifications, orders, rules or bye-laws is conferred then that power includes a power, exercisable in like manner and subject to the like sanctions and conditions, if any, to add, to a mend, very or rescind any notifications, order, rules or bye-Jaws so issued" Therefore, under section 21 of the Central enactment as also the State enactment, the general principle laid down is that in respect of notifications, orders, rules or bye-laws, the power to do would also include the power to undo. Therefore, invoking the principle of section 21 of the said Acts; it would be clear that if the High Court has the power to dismiss a revision petition in default, it would certainly have the power to undo the damage to a party in exercise of the same power in which the revision petition was dismissed. 5. In Kanai Lall Shaw Vs. Bhattu Shaw, AIR 1961 Calcutta. 474 a Division Bench had to consider the question of sufficient cause under Order 9 rule 9, Civil Procedure Code. In that case, the attorney's name was wrongly printed in the Court's preemptory cause list and due to that the suit came to be dismissed in default. The learned Judges constituting the Division Bench held that would constituting sufficient cause for the party's failure to appear at the hearing. This case, in my opinion, will strictly govern the situation in the present case. 6. I may also refer to the observations made by my learned brother, Newaskar J. in Gulamali Vs. Vishwanath, AIR 1962 JLJ 374, wherein the learned Judge held that a revision petition dismissed in default could be restored to file, if there be sufficient cause for non-appearance. That could be done in exercise of inherent powers, and particularly in view of rule 12 of Chapter 4 of Part I of the High Court Rules. The learned Judge considered the case law exhaustively and dissented from the view of the Madras High Court as expressed in a series of cases, namely, Subbama Vs. Venkata Reddy, AIR 1943 Mad. 268 , A. Ramamurthi Iyer and others Vs. T. A. Meenakshisundarammal and another (supra), AIR 1945 Mad 103 , and Fire Stone Tyre and Rubber Co. Vs. Ramanuja, AIR 1951 Mad. Venkata Reddy, AIR 1943 Mad. 268 , A. Ramamurthi Iyer and others Vs. T. A. Meenakshisundarammal and another (supra), AIR 1945 Mad 103 , and Fire Stone Tyre and Rubber Co. Vs. Ramanuja, AIR 1951 Mad. 672 , It may be true that the view taken by the Madras High Court is contrary. But so far as this Court is concerned, there is a Division Bench case of this Court, namely, Dhondiba Appasaheb and another Vs. Wasudeo Anant Sherlekar and, another (Supra), AIR 1957 Nagpur. 83, and the view of Newaskar J. is in accord with the same. Of course, those two cases may he in connection with restoration of a revision petition dismissed in default. But the same principle can usefully be applied to a case of setting aside of an ex parte order passed in a revision petition. 7. To conclude, I am of opinion that the present petition for setting aside the exparte order is tenable, more over, there being sufficient cause, I set aside the order and further direct that Civil Revision No. 550 of 1962 be heard on merits. However, under the circumstances, there shall be no order as to costs of this proceeding.