Murali Shaw v. Bhudharmal Ram Chandra — 1994 DIGILAW 12 (CAL)

Judgment 1. BY this Revisional application the petitioners, the daughters of one Pannalal Shaw, challenged the Order no. 55 dated 9th December, 1989, passed by the Id. Munsif., 1st Court, at sealdah in Misc, Case No. 206 of 1986, arising out of an application under order 22 Rule 4a and Order 22 Rule 9 of the Civil Procedure Code, filed in connection with Money Suit No. 22 of 1982. 2. IN brief the background of the case is that the Opposite Party No. 1 as plaintiff instituted a Money Suit being Money Suit No. 22 of 1982 against the Defendant No. l who is the Opposite party No. 2 herein, the predecessors - in - interest of Opposite Party Nos. 3 to 6 as Defendant No. 2 and predecessors in- interest of the petitioners Shri Pannalal Shaw since deceased as Defendant No. 3, praying for a deceree of Rs.4,000/- (Rupees four thousand only against the Defendants along with reliefs. In that suit the defendant No. l files a written statement and the defendant Nos. 2 and 3 filed a Joint Written Statement denying all the material allegations in the plaint. 3. DURING the pendency of the suit defendant No. 3 died on 11th February 1986. In that suit the Opposite Party No. 1 filed an application for injunction which came up for hearing on 23rd May 1986 before the ld. Munsiff, 1st court at Sealdah. At that time the ld. Advocate for the Defendant Nos. 2 and 3 informed the ld. Court about the death of the Defendant No. 3 who died on 11th February 1986. As there was no application for substitution, a note of abatement was made. 4. ON 19th December, 1986 the Opposite Party No. 1 filed 3 application: (1) for setting aside the note of abatement, (11) application under Section 5 of the Limitation Act for condonation of delay and the third application under Order 20 Rule 4a of the Civil Procedure Code for an order permitting the Opposite Party No. 1 to proceed with the suit in the absence of defendant No. 3 A Misc. Case being Misc. Case No. 206 of 1986 was registered upon the application of the Opposite Party No. l under Order 22 Rule 9 of the civil Procedure Code. The said Misc. Case being Misc. Case No. 206 of 1986 was registered upon the application of the Opposite Party No. l under Order 22 Rule 9 of the civil Procedure Code. The said Misc. Case came up for hearing before the trial Court on 16th January, 1988 and as none appeared for the petitioner at the time of hearing of that misc. case it was dismissed for default. 5. THEREAFTER the Opposite Party No. l Smt. Murali Shaw made another application under Section 151 of the Civil Procedure Code before that court for restoration of the Misc. Case and the Id. Trial Court by its order no. 55 dated December 9, 1989 allowing the prayer of the petitioner restored the Misc. Case on the ground that the petition is formal in nature. Against that order the heirs and successors of Late Pannlal Shaw has come up in this revision. 6. MR. Jiban Ratan Chatterjee, Id. Advocate for the petitioner contended that there is specific provision for restoration of misc. case in view of section 141 of the Civil Procedure Code. He particularly referred to the explanation part of that section wherein it has been provided, inter alia, that the expression "includes proceeding under order IX, but does not include any proceeding under Article 226 of the Constitution of India". He further contended that as there is specific provision in the Act for the relief as prayed for, Section 151 of the Civil Procedure Code cannot be resorted to for that purpose. Mr. M. S. Tewary, the Id. Advocate for the Opposite Party, on the other hand, contended that even if there is specific provision in the Act, section 151 of the C. P. C. can be resorted to. 7. SECTION 141 of the C. P. C. provides that the procedure provided in the code in regard to suits shall be valid, so far as it can be made applicable in all proceedings in any Court of Civil Jurisdiction and in explanation part that Section further provides that the expression proceeding in that Section "includes proceeding under Order 9" of the Code of Civil Procedure. 8. THE Misc. Case arising out of the petition under Order 22 Rule 9 of the Civil Procedure Code is a civil proceeding. So, all the provisions so far as they relate to suits will be applicable in the proceeding in that misc. case. 8. THE Misc. Case arising out of the petition under Order 22 Rule 9 of the Civil Procedure Code is a civil proceeding. So, all the provisions so far as they relate to suits will be applicable in the proceeding in that misc. case. The Supreme Court in the case of Monoharlal v Seth Hiralad reported in A. I. R. 1962 Supreme Court page 527 held in paragraph 43 at page 537 "that inherent jurisdiction of the Count to make orders ex debite justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provision of the Code. Where the court deals expressly that particular matter, the provisions should normally be recorded as exhaustive'. 9. IN Nain Singh v. Koonwarjee reported In A.I.R. 1970 Supreme Court has taken the same view and in paragraph 4 at page 998 the Supreme Court has held, inter alia, that: "under the inherent power of courts recognised by Section 151, of the C.P.C., a court has no power to do that which is prohibited by the code. Inherent jurisdiction of the court must be exercised subject to the rule that if the code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words, the Court cannot make use of the special provisions of section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power. 10. SO, according to the ratio laid down by the Supreme Court in the aforesaid decision is that where there are specific provisions in the code to meet the necessities, Section 151 of the C. P. C. cannot be resorted to for that purpose. An exception to that ratio has been made by a Division Bench of this court in the case of Jaydeb Mukherjee v William Jacks and Co. An exception to that ratio has been made by a Division Bench of this court in the case of Jaydeb Mukherjee v William Jacks and Co. (India) Ltd. reported in 85 CWN page 671 where the Division Bench has taken the view if there is an alternative remedy by way of appeal, the inherent power of the court under Section 151 of the Civil Procedure Code cannot be resorted to as the rule is not rigid but a flexible one. The Court has to consider the particular facts and circumstances of the case and find out what is the real remedy. In cases of dismissal for default, an appeal would usually be no real remedy and there is no reason why a party should be left with no remedy by denying him the right to invoke the inherent power of the Court under Section 151 of the Civil Procedure Code if such a case is made out. In other words if the remedy becomes illusory in the provision of the code, then Section 151 of the Civil Procedure Code can be resorted to. 11. IN the instant case the Misc. case was dismissed for default. Any appeal against the order of default would not afford any real remedy of the grievances of the petitioner in the misc. case and invoking of the provisions would be illusory. So, to grant proper relief to the petitioner Section 151 of the Civil Procedure Code can be resorted to. 12. IN view of my above discussions. I am of the opinion that in resoring the misc. case upon an application under Section 151 of the Civil Procedure Code the Trial Court has not committed any jurisdictional error warranting any interference. In the result the Revisional Application is dismissed on contest. All ad-interim orders stand vacated. There will be no order as to costs. Application dismissed.