REKHA JENA v. MANORANJAN JENA — 1965 DIGILAW 38 (ORI)

JUDGMENT : Das, J. - This petition arise's out of a proceeding u/s 488, Code of Criminal Procedure. 2. The Petitioner is the wife of the opposite party. The parties are Christians and were married in the year 1951. The Petitioner filed a petition u/s 488, Code of Criminal Procedure (Misc. Case No. 20 of 1960) in the court of the Sub-divisional Magistrate, Cuttack, claiming maintenance with effect from 8-7-1960. After several adjournment the case was posted to 8-9-1962 for hearing. In the meanwhile, the opposite party filed a petition for adjournment under intimation to the Petitioner. This led the Petitioner not to be present on the date of hearing, and in the absence of the Petitioner the case was dismissed for default. Having come to know of the dismissal of the case as a result of the misrepresentation of the opposite party, the Petitioner on the very day filed a petition to recall the order of dismissal and the case was restored on the same day. On 15-12-1962 the opposite party again failed to appear and ex parte evidence was recorded on that day and the case stood adjourned to 15-2-1963 for further evidence. The opposite party made an application on that day contending that the Magistrate has no jurisdiction to pass an order of restoration on 8-9-1962. But the Magistrate did not pass any order on this petition and proceeded with the further evidence on 15-2-1963. In the meanwhile another Magistrate took over the case. On 26-3-1964 the opposite party again renewed his prayer before the new Magistrate who was in seisin of the case and by order dated 14-5-1904 the prayer of the opposite party was allowed and the order of restoration dated 8-9-196 was recalled with the result that the order of dismissal passed on that date was allowed to stand. It is against this order of the Magistrate recalling the order of restoration passed by his predecessor, this revision has been filed. 3. The main contention of Mrs. Padhi learned Counsel for the Petitioner was that it was open to the previous Magistrate to recall his own order of dismissal for default and to restore the case to file but it was not open to the succeeding Magistrate to rescind the order passed by his predecessor. 3. The main contention of Mrs. Padhi learned Counsel for the Petitioner was that it was open to the previous Magistrate to recall his own order of dismissal for default and to restore the case to file but it was not open to the succeeding Magistrate to rescind the order passed by his predecessor. She contended that once the proceedings were restored rightly or wrongly on 8-9-1962, the same could only be corrected in revision by the High Court and the learned Magistrate had no power to revise the order of his predecessor. 4. Mr. Rahenoma, learned Counsel for the opposite party contended that once a case is dismissed for default, the Magistrate has no inherent jurisdiction to restore the case to file and the succeeding Magistrate was justified in recalling such an order and in any event, it was open to the Petitioner to file a fresh application for maintenance and this Court should not exercise its revisional jurisdiction u/s 439 or the inherent jurisdiction u/s 561-A of the Code of Criminal Procedure. 5. From the facts stated above, it is clear that the case was posted for hearing to 8-9-19()2 on which date the Petitioner absented herself on the ground that the opposite party had already moved for an adjournment. But later on, when she learnt that her case had been dismissed for default she made an application for restoration which was allowed. The contention of the Petitioner was that it was open to the Magistrate to pass an order for restoration, inasmuch as it was merely an interlocutory order and in the interest of justice the Magistrate was competent to recall such an order. 6. It cannot be disputed that an order of dismissal for default is in the nature of an interlocutory order and cannot be said to be a 'judgment' within the meaning of Section 369, Code of Criminal Procedure and no finality had been given to such an order under any of the provisions of the said Code. In Hadibandhu Naik and Ors. In Hadibandhu Naik and Ors. v. Panchanan Sahu 26 C.L.T. 416, it was held that where an order does not amount to a 'judgment' within the meaning of Section 369, Code of Criminal Procedure and where finality has not been given to such an order under some other provisions of the Code, a Magistrate may have inherent jurisdiction to revise or review his order if adequate grounds are made out. Reliance was placed in Patel Bhagubhai Ranchhodas Vs. Bai Arvinda the Magistrate cancelled his previous order for maintenance u/s 488, Code of Criminal Procedure passed in favour of the wife on the representation of the husband that he had obtained a decree for restitution of conjugal rights in his favour, but without informing the Magistrate that an appeal against the said decree was pending. The decree obtained by the husband was subsequently set aside in appeal whereupon the Magistrate cancelled his previous order rescinding the order for maintenance and restored the original order for maintenance. In that case it was held that Section 369 has no application to such orders and the criminal courts have powers to ignore orders passed by mistake or on fraud and all procedure are intended to help justice. It was also held that in the face of express provisions in Sections 488 and 489, Code of Criminal Procedure applicable to such cases, Section 369 has no application and the Magistrate has power u/s 489(2) to cancel or vary his order and could therefore rescind the order of maintenance, especially when the subsequent order was obtained from him by practising fraud on the court. 7. It was contended by Mrs. Padhi that the opposite party played a fraud on the Petitioner by giving her an impression that he would take an adjournment on 8-9-1962, the date to which the case was posted for hearing and as a result of such representation she did not take any steps resulting in the dismissal of her application for default, and the order of dismissal was set aside immediately after on the same day when the Petitioner appeared before the Court, as the court was satisfied that she was prevented by sufficient cause to be present at the time when the case was called. No doubt, there is no provision in the Code of Criminal Procedure similar to the one in Order 9 of the Code of Civil Procedure. No doubt, there is no provision in the Code of Criminal Procedure similar to the one in Order 9 of the Code of Civil Procedure. But it has been held that for ends of justice, a court may apply the principles of Order 9, CPC even to other cases. After all, the object of the Code is to further the cause of justice rather than to hinder it. In Nimai Charan Kamila v. Shyamamohan Nandy 18 C.L.T. 279, Panigrahi, J. was of the view that in the absence of any special direction to the contrary, rules of natural justice require that the provisions embodied in Order 9, CPC should be applied to cases under the House Rent Control Act. It is needless to say that a proceeding u/s 488, Code of Criminal Procedure is more in the nature of a civil proceeding Subayya Gounder Vs. Bhoopala Subramanian and G. Bhandari v. Parkash Rao AIR 1952 Hyd 44. The principles of natural justice embodied in Order 9, Code of Civil Procedure, may in appropriate circumstances, with a view to give justice to parties, be applied to cases of this nature. That the Court has inherent jurisdiction to remedy a wrong under certain circumstances cannot be disputed. 8. It is an established proposition of law that a court justice must possess inherent powers, apart from the express provisions of law, which are necessary to its existence and proper discharge of its duties under the law. No legislative enactment dealing with the procedural law, however exhaustive it may be, can foresee all exigencies that may arise in course of hearing of a case, and the courts may be called upon, where circumstances require, to exercise such powers as may be necessary, unless of course subject to what may be expressly provided to the contrary. This is true of all courts. 9. In a Division Bench decision of the Calcutta High Court in Budhulal v. Chatugo AIR 1918 Cal 850, it was held by Ashutosh Mookerjee, J. that though there is no analogous provision as Section 151 Code of Civil Procedure, in the Code of Criminal Procedure, the criminal courts-no less than civil courts-exist for administration of justice and courts of both description have inherent l' power to mould the procedure subject to the statutory provisions applicable to the matter in hand to enable them to discharge their functions as courts of justice. The power, however, is not. to be exercised capriciously or arbitrarily and the courts must be r careful to see that their decisions are based upon sound general principles and are not in conflict with the intention of the legislature as indicated in the statutory provisions. 10. A special Bench decision of the Calcutta High Court in Pigot and Ors. v. Ali Mahammud Mandal AIR 1921 Cal 30, followed the proposition as laid down in the aforesaid decision of their Court as the correct law on the point. The following observations of their Lordships in that case may usefully be quoted here: Their Lordships said: In the case of Criminal Courts the theory of inherent power had still more uncertain career but as we have seen, it was welcomed without hesitation in 189& and found some recognition in the Code of Criminal Procedure of that year and was reaffirmed in 1912. We feel no doubt whatever that the doctrine of inherent power as enunciated in the case of Budhulal v. Chatugo AIR 1918 Cal 850, is well established on principle and cannot be successfully questioned. A Division Bench of the Hyderabad High Court in Panalal Lahuti and Ors. v. Hyderabad State AIR 1951 Hyd 113, said that Section 561-A of the Code of Criminal Procedure affirms the inherent powers of the High Court and is silent as regards any such powers of the subordinate courts. This omission does not mean that such courts cannot, where necessary, exercise any inherent power, for every court, whether civil or criminal, must be deemed to possess as inherent in its very constitution all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. In coming to this conclusion, their Lordships relied upon the aforesaid two decisions of the Calcutta High Court and some decisions of the other High Courts in India. There are several authorities to show that even subordinate criminal courts have, to a limited extent, power to review their own orders See Achambit Mandal Vs. Mahatab Singh Assistant Government Advocate Vs. Upendra Nath Mukerji Krushna Mohan and Others Vs. Sudhakar Das and Others, Shamsuddin v. Ramadayal Singh AIR 1924 Lah 630 : 25 Cri.L.T. 89 and In the matter of Lakhman Govind Nilguda I.L.R 26 Bom 552. Mahatab Singh Assistant Government Advocate Vs. Upendra Nath Mukerji Krushna Mohan and Others Vs. Sudhakar Das and Others, Shamsuddin v. Ramadayal Singh AIR 1924 Lah 630 : 25 Cri.L.T. 89 and In the matter of Lakhman Govind Nilguda I.L.R 26 Bom 552. No doubt, as I have already said, the inherent power of the court is not to be invoked where express provisions have been made in the Code. There is, however, no such provision to deal with a case of default in an application u/s 488, Code of Criminal Procedure. It was therefore well within the powers of the Magistrate to restore such an application which had been previous dismissed for default. 11. Mr. Rahenoma strongly relied upon a decision of If the Bombay High Court in In Re: Lloyds Bank Limited where it was held that the court should not use extraordinary powers when there is another remedy available. He contended that it was always open to the Petitioner to file a fresh application for maintenance and in that view of the matter the learned Magistrate should not have restored the order of dismissal passed on 5-9-1962. No doubt, it is open to the Petitioner to file a fresh application for maintenance. Section 488(2) however provides that the maintenance allowance shall be payable from the date of the order or if so ordered from the date of the application for maintenance. In other words the court's jurisdiction to award maintenance may at best date back from the date of application itself. If a fresh application is filed after a lapse of about four years the Petitioner will not be entitled to the maintenance for the period prior to the date of such fresh application. In that view of the matter, recourse to filing of a fresh application cannot give the Petitioner the same amount of relief as she is entitled to under her first application. The aforesaid decision of the Bombay High Court is therefore of not much help. Reliance was also placed on a decision in Bakimian Bibi v. Manzi Ali 2 Cri.L.J. 213. In that case in a proceeding u/s 488, Code of Criminal Procedure the husband offered to maintain his wife on condition of her living with him and the wife also expressed her willingness to live with her husband. Reliance was also placed on a decision in Bakimian Bibi v. Manzi Ali 2 Cri.L.J. 213. In that case in a proceeding u/s 488, Code of Criminal Procedure the husband offered to maintain his wife on condition of her living with him and the wife also expressed her willingness to live with her husband. Under those circumstances Harrigton, J. held that the Magistrate was not justified in passing an order u/s 488 unless the Applicant wife had satisfied the Court that notwithstanding the offer there were just grounds for making the order. u/s 488(3) if the wife refuses to live with the husband, the Magistrate will have to consider the grounds of such refusal. In that case however wife did not appear nor did she take any steps for adjournment. That case is clearly distinguished from the present case. In fact, in the present case the learned Magistrate was influenced by the aforesaid decision in allowing the petition of the opposite party and to recall the order of restoration. In the present case, it may be remembered that the wife immediately appeared before the court and took steps for restoration of the case when she learnt that it had been dismissed for default. Further there is no offer made by the husband nor is there any refusal of the same by the wife. So the court was not called upon to consider the grounds of such refusal. Thus, the proceedings in the present case were not disposed of on merits. In the aforesaid Clause in Bakmian Bibi v. Mianzi Ali 2 Cri.L.J. 213, their Lordships reviewed one of their earlier decisions in Masat Jamoli v. Godola Kumar 1 C.L.R. 89, where it was held that where the application has been dismissed by a fully empowered Magistrate after hearing the evidence the District Magistrate could not entertain the complaint de novo and it does not lay down the proposition that here the petition for maintenance has been dismissed for default of appearance of the Applicant it is not open to the Applicant to present a fresh petition. Their Lordships held that the latter decision does not affect the merit of the case that was under consideration before them. This decision therefore is of no assistance to the opposite party. Their Lordships held that the latter decision does not affect the merit of the case that was under consideration before them. This decision therefore is of no assistance to the opposite party. In view of the aforesaid position in law, I am of the view that the Magistrate bad power to restore the application for maintenance and in so doing he did not commit any illegality in the exercise of his jurisdiction and accordingly the order of restoration passed by the Magistrate on 8-9-1962 must be held to be a valid order and the order dated 14.5.1964 of the succeeding Magistrate to be without jurisdiction. In that view of the matter the petition must be allowed and the case must go back to the Magistrate for disposal in accordance with law.