Majhauli Raj Education Society, Mahjhauli District Deoria v. Moti Lal
1969-09-16
T.P.MUKERJEE, V.G.OAK
body1969
DigiLaw.ai
JUDGMENT V.G. Oak, C.J. - This Civil Revision by plaintiffs is directed against an order restoring an application for restoration of a suit. Majhauli Raj Education Society and another filed a suit against Moti Lal and others. The suit was decreed ex parte on 18-7-1958. On 11-9-1963 the defendants filed an application under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree, and for restoration of the suit. This application for restoration dated 11-9-1963 was dismissed in default on 21-11-1964. On 9-1-1965 the defendants moved an application under Section 151, C. P. C. for setting aside the order dated 21-11-1964, and for restoration of the application dated 11-9-1963. This application dated 9-1-1965 was allowed by the Civil Judge, Deoria on 4-9-1965. The present Civil Revision by plaintiffs is directed against the order, dated, 4-9-1965. 2. Mr. M. P. Singh, appearing for the plaintiffs applicants urged before us that the trial court had no jurisdiction to restore an application for restoration which had been dismissed in default. It was urged for the applicants that the proper 1/remedy of the defendants was to appeal against the order dated 21-11-1964 under clause (d) of Rule 1 of Order 43 of the Code of Civil Procedure, and that the application under Section 151, C.P.C. was incompetent. 3. Reliance was placed upon a decision of a Full Bench of Patna High Court in Doma Choudhary v. Ram Naresh Lal, A.I.R. 1959 Patna 121. It was held by the Full Bench that "Sec. 151, C. P. C. has not created any new power but has preserved the power to act in the ends of justice and to prevent abuse of the process of the Court. In the absence of some special circumstances which amount to abuse of the process of the Court, the Court cannot grant a relief in exercise of its inherent power when the ends of justice can be served by another remedy provided by the Code which is available to the party concerned." 4. That decision was followed by a single Judge of Orissa High Court in Udayanath Panda v. Baikunthnath Poutra, A.I.R. 1960 Orissa 176. It was held that in the absence of special circumstances a Court has no jurisdiction in exercise of its inherent power to set aside the dismissal for default of an application and to restore it.
That decision was followed by a single Judge of Orissa High Court in Udayanath Panda v. Baikunthnath Poutra, A.I.R. 1960 Orissa 176. It was held that in the absence of special circumstances a Court has no jurisdiction in exercise of its inherent power to set aside the dismissal for default of an application and to restore it. Ends of justice will be served if the applicant follows the remedy by way of appeal. 5. In Madanlall Agarwalla v. Tripura Modern Bank Ltd., A.I.R. 1954 Assam 1 it was held by a Full Bench of Assam High Court that "where an application under Order 9, Rule 13 has itself been dismissed for default, then, in so far as the Court dismissing the application for default is concerned, there may be, in appropriate cases, a remedy available to the party by an application under Section 151, C. P. C." 6. In Arjun Singh v. Mohindra Kumar, A.I.R. 1964 SC 993 it was held that the inherent power of the Court cannot override the express provisions of the law. 7. In Raja Sriniwas Prasad Singh v. S. D. O., Mirzapur, AIR 1962 Allahabad 590 it was held that an application to set aside an ex perte order of compensation filed long after the expiry of the period of 30 days after the order could not be entertained. 8. In A.H. Ghaznavi v. Sardar Gurcharan Singh, AIR 1937 Allahabad 691 it was held that a Court which passed an ex parte decree could not set it aside apart from the provisions of Order 9, Rule 13, C. P. C. In that case the Court was not called upon to decide the question whether an application to set aside an order dismissing a restoration application in default is maintainable. 9. For purposes of the present Civil Revision, we may assume with the applicants that the order dated 21-11-1964 was appealable under Order 43, Rule 1 (d) , C. P. C. But it does not follow that an application under Section 151, C. P. C. to get the same relief could not be entertained. It is true that a party cannot be permitted to invoke the aid of Section 151, C. P. C. in order to get over the bar of limitation.
It is true that a party cannot be permitted to invoke the aid of Section 151, C. P. C. in order to get over the bar of limitation. But in the present case the defendants mould the trial court on the footing that the defendants and their counsel did not know that the restoration application would be taken up for hearing on 21-11-1964. Apparently, the trial court accepted the position taken up by the defendants. That is why the trial court agreed to set aside the order dated 21-11-1964. If it is a fact that defendants had no knowledge about the proceeding of 21-11-1964 till 8.-1-1965, that would be a good ground for extending limitation under Section 5 of the Limitation Act. It cannot, therefore, be said that the application dated 8-1-1965 under Section 151 and 152, C. P. C. was a device to get over the difficulty about limitation. 10. When an ex parte decree is passed against a defendant, he has two remedies. He may file an appeal against the ex parte decree. Or he may move the trial court under Order 9, Rule 13, C. P. C. to set aside the ex parte decree. There is no good reason why a party should not have two such remedies when a restoration application is dismissed in default. It may be that an order dismissing a restoration application is appealable under Order 43, Rule 1 (d) , C. P. C. But it does not follow that the same relief cannot be obtained by moving an application under Section 151, C. P. C. In the cases relied on by Mr. M. P. Singh it has been recopied that under special circumstances the aggrieved party may move the Court to grant the party the necessary relief under Section 151, C. P. C. It cannot, therefore, be laid down that the provision of Order 43, Rule 1 (d) , C. P. C. precludes any application under Section 151, C. P. C. In proper cases, the aggrieved party may move an application under Section 151, C. P. C. instead of filing an appeal under Order 43, Rule 1 (d) C. P. C. 11. It cannot, therefore, be said that the trial court acted without jurisdiction or committed any material irregularity in setting aside the order dated 21-11-1964 by passing the order, dated 4-9-1965. The revision is, therefore, dismissed with costs.