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Allahabad High Court · body

1993 DIGILAW 188 (ALL)

Radhey Lal v. Special Judge Bulandshahr

1993-03-18

S.P.SRIVASTAVA

body1993
Judgment S.P. Stivastava, J. 1. Feeling aggrieved by an order passed by the Regional Court dismissing the application filed by the petitioner tenant seeking setting aside of an order dismissing in default a revision filed by him under section 23 of the Provincial Small Cause Courts Act and restoration of the revision to its original number for deciding it on merits, he has approached this court for redress. 2. The facts, shorn of details and necessary for the disposal of the present writ petition are that a suit being suit no. 60 of 1979 was filed by the landlord respondent against the petitioner claiming a decree for his ejectment from tire premises in dispute and recovery of arrears of rent and damages for use and occupation. In this suit the trial court granted the relief for the ejectment of the petitioner from the premises in dispute and the claim of the plaintiff for of recovery of arrears of rent and damages for use and occupation was granted only in part. Aggrieved by this decree the tenant petitioner filed a revision under section 25 of the Provincial Small Cause Courts Act which was registered as S.C.C.R. No. 19 of 1988. This revision was dismissed In default of revisionist onl3-7-1992. Thereafter on 21-9-1992, the tenant petitioner filed an application purporting to be under Order IX Rule 9 and section 141/151 of the Civil Procedure Code duly supported by an affidavit setting out the grounds whereunder he stood prevented from appearing when the revision had been called for hearing. The petitioner tenant prayed in the aforesaid application that the order dismissing the revision in default passed on 13-7-1992 be recalled and restoring the revision to its original number the same be decided on merits. The revisionsal Court however, by the impugned order dated 27-7-1992 rejected the aforesaid application by a cryptic order saying that the application was not maintainable. The question which arises for consideration in this case is as to whether the application seeking recall setting aside of the order dismissing the revision filed under section 25 of the Provincial Small Cause Courts Act in default is maintainable. 3. I have heard Sri G.N. Sharma, learned Counsel for the petitioner and Sri V.M. Sahai, learned Counsel for the landlord respondent. 4. 3. I have heard Sri G.N. Sharma, learned Counsel for the petitioner and Sri V.M. Sahai, learned Counsel for the landlord respondent. 4. The provisions contained in Section 17 of the Provincial Small Cause Courts Act, 1887 provide that the procedure prescribed in the Code of Civil Procedure, 1908 shall, save in so far as is otherwise provided by that Code or by the said Act, be the procedure followed in a court of small causes in all suits cognizable by it and in all proceedings arising out of such suits. Order 'L' Rule 1 of the Code of Civil Procedure provides that the provisions specified in that order shall not extend to courts constituted under the Provincial Small Cause Courts Act, 1987. However, the provisions specified therein do not include the provisions contained in either under Order IX of the Code of Civil Procedure or the provisions contained in Order XVII of the Code of Civil Procedure or section 141 or section 151 thereof. Since the provisions contained in section 17 of the Act are enabling provisions for procedural application, obviously therefore, the aforesaid provisions stand clearly attracted to the proceedings of a revision contemplated under section 25 of the Provincial Small Cause Courts Act wherein the revisional court for the purpose of satisfying itself that a decree or order made in any case decided by a court of small causes was according to law may call for the case and pass such order with respect thereto as It thinks fit, while it is true that the provisions relating to procedure governing a revisions contemplated under section 25 of the Provincial Small Cause Courts Act have not been specified it has to be borne in mind that considering the nature of the proceedings envisaged under section 25 of the Act, once a revision Is entertained the suit will be deemed to be pending in the shape of the revision and just as an appeal is a continuation of a suit similarly a revision under section 25 of the Provincial Small Cause Courts Act is also to be treated as a continuation of the suit It should not be overlooked that where statutes are silent and remedy has to be sought by recourse to basic principles, it is the duty of the court to devise procedural rule by analogy and expediency. Taking into consideration the provisions contained in section 17 of the Act, it cannot be assumed that salutory principles underlying order IX Rule 9 of the Code of Civil Procedure or Order XLI Rules 19 thereof could not be utilised for disposing of an application seeking setting aside/ recall of an order dismissing the revision in default on the ground that the court could not accept a procedure which is not provided for in the Act. 5. Further it is apparent from a perusal of section 17 of the Provincial Small Cause Courts Act, that it does not prohibit the application of section 151 of the Code of Civil Procedure to the proceedings under the said Act. It should not be lost sight of that when there is no specific provisions in the Act to cover a particular controversy then the provisions contained in section 151 of the Code of Civil Procedure can be taken resort to, to help the litigant and also the ends of justice. 6. While, considering the question relating to the maintainability of the application of the nature Involved in the present case, the observations made by the Full Bench of this Court in its decision in the case of Narsingh Das v. Mangal Dube, ILR 5 Alld. 163 (172) which were to the following effect ought to have been taken notice of "....The courts are not to act upon the Principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on converse principle that every procedure is to be understood as permissible till It is shown to be prohibited by the law. As matter of general principle, prohibitions cannot be presumed...." In dealing with a controversy of the nature as involved in the present case, the real method of approach ought to be to see as to whether the resort to section 151 of the Code of Civil Procedure is either expressly or by necessary implication prohibited. If there is no specific prohibition and resort to such power serves the ends of justice Instead of defeating it then it can always be resorted to as otherwise it would amount to give preference to from over requirements of justice. 7. If there is no specific prohibition and resort to such power serves the ends of justice Instead of defeating it then it can always be resorted to as otherwise it would amount to give preference to from over requirements of justice. 7. Taking into consideration the scheme of the Act no such inference is possible which may be indicative of any such legislative Intent that a revision once dismissed in default should never be heard on merits even if a sufficient cause for non appearance of the revisionist is made out. 8. In view of what has been stated above, I am of the considered opinion that in any view of the matter, the power of restoration of a revision under section 25 of the Provincial Small Cause Courts Act is always available under section 151 of the Code of Civil Procedure which lays down that nothing in that Code shall be deemed to limit or otherwise affect the Inherent power of the court to make such orders as may be necessary for the ends of Justice, or to prevent abuse of the process of the Court. On an examination of Judgment passed by the Court below in the case in hand I find it to be highly unsound. It cannot stand scrutiny. No reasons have been given by the Special Judge, Bulandshahr in support of his conclusion, and he has dealt with the case in a slip shod manner disposing of the application by cryptic order. The impugned order discloses a total non application of mind and betrays lack of judicial approach. 9. The impugned order therefore, cannot be approved and deserves to be set aside. 10. During the pendency of the writ petition, the learned Counsel for the landlord respondent had made a statement on 22-2-1993 whereunder representing the landlord respondent it had been clearly stated that the landlord did not propose to file any counter affidavit controverting the allegations made in the affidavit dated 20-7-1992 filed by the tenant petitioner in support of the application seeking the recall of the order dismissing his revision in default on 13-7-1992. As a matter of fact the landlord has filed an application on 12-2-1993 supported by an affidavit whereunder, it has been prayed that the application filed by the tenant petitioner giving rise to this writ petition may be allowed so that the revision itself may be heard on merits. As a matter of fact the landlord has filed an application on 12-2-1993 supported by an affidavit whereunder, it has been prayed that the application filed by the tenant petitioner giving rise to this writ petition may be allowed so that the revision itself may be heard on merits. This obviates the remitting of the case for reconsideration as it will not serve any useful purpose. The suit giving rise to the revision which had been dismissed in default was filed in the year 1979. It was decreed as Indicated above in the year 1986 and the revision was dismissed in default on 13-7-1992. 11. Taking into consideration the facts and circumstances of the present case. I think it to be expedient In the Interest of justice to quash not only the order dated 27-7-1992 but even the order dated 13-7-1992 also. 12. In view of my conclusions Indicated herein before, this writ petition succeeds. Allowing the writ petition, the orders dated 27-7-1992 as the order dated 13-7-1992. passed by the respondent No. 1 are quashed with a direction to the respondent No. 1 to finally dispose of the revision within a period of two months from the date of the production, of a certified copy of this order before it. There shall however, be no order as to cost.