Jhauri Paswan v. Lobhi Paswan — 1978 DIGILAW 32 (PAT)

Judgment 1. Second Appeal No. 913 of 1964 was filed on 2nd of December, 1964. On 17th of December, 1964, the Taxing Officer of the Court passed an order directing the trial court to fix the market value of property under dispute with reference to date of the institution of the suit as the Stamp Reporter had reported that the value of the suit land as given in the plaint and in the memorandum of appeal at Rs. 25 only was low since the lands measured 9« dhurs and were situate in the town of Patna. It appears that the sole plaintiff respondent Barhu Paswan died on the same day i.e. 17th of December, 1964. A substitution petition was filed within time to substitute the brother and sister of deceased Barhu Paswan in his place. The Registrar of the Court allowed the prayer for substitution subject to such objections which might be raised later on. The trial court reported that the value of the suit land should be Rs. 260. The appellant was permitted to correct the valuation and pay the court fee for the memorandum of appeal on the said valuation of Rs. 260. Thereafter, the appeal was admitted on 1st of February, 1966. Notices of the appeal were validly served on the substituted heirs of the deceased respondent but they did not appear to contest the appeal. The office thereafter put up the matter as to realisation of deficit court fee on the plaint on the basis of valuation fixed by the trial court. The matter came before a learned single Judge of this Court and on 5th of January, 1967 he passed the following orders : "Issue notice to the heirs of the deceased respondent, who have been brought on the record in his place, to show cause why the suit will not stand dismissed for non-payment by the plaintiff a sum of Rs. 31.25 which has been assessed as the amount of deficit court-fee payable on the plaint. In case the plaintiffs heirs do not appear on a date to be fixed for payment of this amount, the suit will stand dismissed. Two weeks time is allowed to the appellants to file talvana etc." The appellants did file talbana etc. within the time allowed by the Bench and house service was effected on the substituted respondents on their refusal to accept the notices. Two weeks time is allowed to the appellants to file talvana etc." The appellants did file talbana etc. within the time allowed by the Bench and house service was effected on the substituted respondents on their refusal to accept the notices. However it appears that no date for appearance was fixed by the Court. It was fixed as usual by the office in the notices issued to the substituted respondents. They again did not appear and the matter was put up before the same learned single Judge on 14th of April, 1967 when he passed the following order : "The suit giving rise to this appeal now stands dismissed owing to default on the part of the plaintiff respondent to deposit the requisite amount of court-fee within the time allowed by this court. The suit must accordingly be dismissed. The judgement and decree passed by the courts below are set aside and in the circumstances, this appeal has become infructuous." As against this order allowing the appeal and dismissing the suit the present miscellaneous judicial case has been filed by the petitioners who claim to be donees from the original plaintiff respondent. 2. Various grounds have been taken on behalf of the petitioners in this miscellaneous judicial case including that the persons who were substituted in place of the deceased sole plaintiff respondent were not his heirs. The petitioners claim that the deceased sole respondent had executed a registered deed of gift in favour of the petitioners on 8-1-1964 and the persons who were substituted in the place of the deceased even if they were his heirs were left with no interest in the property in dispute and it was in those circumstances that they did not appear in the second appeal and file the deficit court-fee on the plaint. The petitioners claim is that they being the legal representatives of the deceased sole respondent should have been substituted in his place. It is further claimed by the petitioners that they had no knowledge of the pendency of the second appeal in this Court and as soon as they came to know of it they filed the present application. They have also challenged the fixation of the valuation by the Trial Court on the ground that it was done ex parte after the death of the sole respondent. 3. They have also challenged the fixation of the valuation by the Trial Court on the ground that it was done ex parte after the death of the sole respondent. 3. It appears that the appellants of the second appeal who are opposite party in this miscellaneous judicial case took a stand that the miscellaneous case was not maintainable at the instance of the petitioners and when the matter came before the learned Single Judge who had allowed the appeal and dismissed the suit by his order dated 14th of April, 1967, he referred this miscellaneous judicial case to a Division Bench after formulating the points which arose for decision in the case according to him as follows :- "(1) Whether, when a respondent dies and wrong persons are brought on record and appeal is allowed the persons claiming to be rightful heirs of the deceased can make an application either under S.151 or by way of review of the order of this Court for setting aside the order or judgement of this court on the ground that wrong persons were brought on record ? (2) In the peculiar circumstances of this case whether the petitioners who claimed to be donees of Barhu Paswan and as such claimed to be the legal representatives of Barhu Paswan should have been brought on record so that they might pay the deficit court-fee, for default of payment of which the plaint of the plaintiff respondent was dismissed ? (3) Whether this court can reopen the question in the second appeal which was disposed of in terms of the order passed in respect of court-fee, or the remedy of the petitioners, if any, would be by way of separate suit ? (3) Whether this court can reopen the question in the second appeal which was disposed of in terms of the order passed in respect of court-fee, or the remedy of the petitioners, if any, would be by way of separate suit ? After formulating the points he further observed as follows :- "It will be open of course to the defendant appellants in the second appeal who are opposite party to this application to raise any contention if in law the same be open to them that the legal representatives who were brought on record were the legal representatives and not these petitioners." After having heard learned counsel for the petitioners, and learned counsel for the opposite party we are of the opinion that on the facts and in the circumstances of the case it is not necessary for us to decide any of the points as formulated by the learned Single Judge while referring the case to a Division Bench. In Md. Munif Khan V/s. Md. Shahbuddin Khan (Civil Appeal No. 115 of 1967 decided on 22nd of Aug, 1967) the Supreme Court set aside the order of this court setting aside the decree of a subordinate court passed in favour of the plaintiff of that case for default by him in carrying out the order of this Court relating to the demand of court-fee on the plaint with the following observations : "In a suit which had already been decreed, the High Court directed that the plaint filed in the court of first instance do stand rejected even though court-fee as directed by the decree was paid. It is not necessary to decide whether the appellants were not liable to pay the additional amount of court-fee demanded nor whether there was sufficient cause for non-payment, for, in our view, the order passed by the High Court is wholly without jurisdiction. Once the decree was passed by the court of first instance, it could be modified by the appellate court on the merits of the dispute or by consent of the parties. The High Court had no power to set aside the decree for default by the appellant in carrying out the order relating to payment of court-fee. It is true that the liability of the appellants to pay appropriate court-fee was not wiped out because the decree was passed by the trial court in favour of the appellants. The High Court had no power to set aside the decree for default by the appellant in carrying out the order relating to payment of court-fee. It is true that the liability of the appellants to pay appropriate court-fee was not wiped out because the decree was passed by the trial court in favour of the appellants. The liability remained; but the plaint could not be rejected either by the order of the court of first instance or by the appellate court after a decree was passed in favour of the appellants." Following the aforesaid decision of the Supreme Court a Bench of this court in the case of Raj Kumar Madan Mohan Singh V/s. Rukmini Devi, 1971 0 BLJR 1029 reviewed the orders passed by the court dismissing the suits which had been decreed by the trial court on account of non-payment of deficit court-fee on the plaint as demanded by this court with the observation that the mistakes were committed by the office of the Court and the orders passed by the court, which were without jurisdiction, had resulted in miscarriage of justice. The Bench further observed that it was settled law that the litigant deserved to be protected against the default committed or negligence by the Court or its officers in the discharge of their duties. It relied on a decision in Rodger V/s. Comptoir D Escompte de paris, 1871 3 PC 465 in which it had been held that one of the highest duties of all courts was to see that the act of the court did not cause injury to any of the suitors. The view taken in Rodgers case has also been approved by the Supreme Court in Jagat Dhish Bhargava V/s. Jawahar Lal Bhargava, AIR 1961 SC 832 . The Bench in the said case, therefore, further opined that that was a fit case where the court should in exercise of its inherent jurisdiction recall the orders passed allowing the appeal and dismissing the suit for non-payment of court fee on plaint after the suit had been decreed. True it is that that order was passed by the Bench on an application made for review but as observed earlier the order could also be set aside in exercise of inherent jurisdiction. 4. True it is that that order was passed by the Bench on an application made for review but as observed earlier the order could also be set aside in exercise of inherent jurisdiction. 4. Sec.151 of the Code of Civil Procedure (hereinafter referred to as the Code) lays down that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court. In a recent Full Bench decision (of five Judges) in Civil Revision Nos. 713 and 917 of 1970 and No. 396 of 1972 decided on 12th May, 1977 (reported in AIR 1978 Pat 339 ) the scope of S.151 of the Code has been examined with reference to various Supreme Court decisions. It has been held in that case that the provision in the Code that an appeal would lie against an order under O.9, R.13 would not stand as a bar to setting aside of such an order in exercise of powers under Sec.151 of the Code merely because an appeal was not preferred. The learned Chief Justice who delivered the leading judgement in the case while summarising the proposition which emerged from the discussion of various Supreme Court decisions said that one of such propositions was that "inherent powers are to be exercised where specific provision does not meet the necessities of the case." The language of S.151 of the Code itself makes it clear that where it is necessary to exercise inherent powers for the ends of justice or to prevent the abuse of the process of the court, no limitation can be put on that power. In our opinion, the case before us is a case where the order allowing the appeal and rejecting the plaint and thus dismissing the suit for non-payment of deficit court-fee on the plaint should be recalled in exercise of inherent powers of the Court. According to Supreme Court decision in Mohammad Munifs case, that order was wholly without jurisdiction. Further even the peremptory order dated 5th of Jan., 1967 did not call upon the substituted heirs of the sole plaintiff respondent to pay the deficit court-fee within a specified time and did not direct that in case they failed to do so the plaint would be rejected. Further even the peremptory order dated 5th of Jan., 1967 did not call upon the substituted heirs of the sole plaintiff respondent to pay the deficit court-fee within a specified time and did not direct that in case they failed to do so the plaint would be rejected. They were merely called upon to show cause why the suit would not stand dismissed for non-payment of deficit court-fee on the plaint. As already pointed, out even the date for their appearance was not fixed by the court but by the office. According to order dated 14th of April, 1967 passed in the second appeal, the suit stood dismissed for non-compliance of the peremptory order dated the 5th of Jan., 1967. In our opinion the order dated 5th of Jan., 1967 was not of such a nature as to justify automatic dismissal of the suit if it was not complied with. 5. Learned counsel appearing for the opposite party has placed reliance on certain decisions, namely, Rameshwardhari V/s. Sadhu Saran Singh, AIR 1923 Pat 354; Gobardhan Mukharji V/s. Saligram Marwari, AIR 1936 Pat 123; Jiwan Das V/s. Rakhmat Din, AIR 1941 Lah 212 and Ganga Prasad V/s. Smt. Girja Devi, AIR 1949 Pat 366. He has strongly relied on R.3 of O.20 of the Code of Civil Procedure which lays down that once the judgement was signed it shall not afterwards be altered or added to, save as provided by S.152 or on review. He has laid great stress on a decision of this Court in Rameshwardhari Singhs case in which a Bench of this Court held that where a court rejected a plaint under O.7, R.11 Clause (c) of the Code for non-payment of deficit court-fee, the order operated as a decree and when the decree had been signed and perfected the court had no jurisdiction to restore the suit under Order 9, Rule 9 or under its inherent powers under Sec. 151, the proper remedy of the plaintiff being by way of an application for review under O.47, R.1 of the Code. Apart from the fact, that that decision is distinguishable on the ground that there the learned Judges were referring to an order rejecting the plaint by the trial court itself, the rigor of that decision has been mellowed to a great extent by the decision of the Supreme Court in Ram Das V/s. Ganga Das, 1961 0 BLJR 495. There had been divergence of judicial opinion on the question whether in an appropriate case a judgement could be set aside under S.151 of the Code in spite of the provision of R.3 of O.20; some High Courts taking the view that it could be done, others that it could not be. The decision of the Supreme Court in Keshardeo Chamaria V/s. Radha Kishen, AIR 1953 SC 23 supports the view that in an appropriate case a decree could be set aside under S.151 of the Code in spite of the provision of O.20 R.3 of the Code. As already stated a point was taken on behalf of the opposite party that the miscellaneous judicial case at the instance of the petitioners was not maintainable. We do not intend to examine that question in detail but prima facie, we think that there may be substance in that contention. If that be so then the injustice done by the order of this court dated 5th of Jan., 1967 and 14th of April 1967 passed in the second appeal which were wholly without jurisdiction according to the said decision of the Supreme Court, cannot be set right unless recourse is taken to the provision of S.151 of the Code and orders are recalled under inherent powers of the Court. We are satisfied that it is a case where if those orders are allowed to stand, there will be abuse of process of the Court and that they should be recalled for the ends of justice. If only one of these conditions exists, the inherent powers under Sec.151 of the Code can be exercised and there can be no limitation on that and this is a case where both the conditions are satisfied. 6. We accordingly recall both the orders, namely, dated 5th of Jan., 1967 and 14th of April, 1967 passed in second appeal 913 of 1964 in exercise of our inherent powers. 6. We accordingly recall both the orders, namely, dated 5th of Jan., 1967 and 14th of April, 1967 passed in second appeal 913 of 1964 in exercise of our inherent powers. The result of this order will be that the suit will stand revived and the judgements and decree passed by the courts below shall remain valid so long as they are not interfered with by a superior court. The second appeal shall now stand restored to file and parties to that appeal will now take appropriate steps therein for its quick disposal. It will be open to the petitioners in the miscellaneous judicial case to make an application in the second appeal or being added as a party respondent therein. The miscellaneous judicial case 187 of 1967 stands disposed of accordingly. There will be no order as to costs.