JOSEPH KURUVILLA Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) THESE petitions have been placed before a Division bench by Narayana Pillai J. , since Raman Nayar J. (as he then was) doubted in vallabha Rama Raja v. Ramakrishnan (CMP. No. 54 of 1969) the correctness of the decision of Krishnamoorthy Iyer J. in Kunhali Beary v. Sathanika Narayanan (1968 KLT. 959 ).

(2.) THE common petitioner in these petitions filed two copy applications for certified copies of a judgment pronounced by this Court on 2nd April 1969 for filing appeals to the Supreme Court. THE applications were filed on 5th April; and they mentioned the date of disposal as 3rd April instead of 2nd April. On 28th October 1969, the copying section put up a notice that the date of disposal mentioned in the applications was not correct and that the same should be corrected within three days. This was not noticed by the clerk of the advocate of the petitioner by oversight till 6th November; and on the next day, two other copy applications were filed in continuation of the earlier applications THEreafter, the copying section dismissed the earlier applications on 3rd December and issued certified copies on the later applications. Since the later applications were not treated as the continuation of the earlier application, the present petitions have been filed with prayers either to restore the earlier applications or to treat the later applications as the continuation of the earlier applications, since, otherwise the proposed appeals will be barred. When the petitions came up for hearing the decision of krishnamoorthy Iyer J. in Kunhali Beary's case was pointed out, as well as the observation of Raman Nayar J. that he was "loth to think that the court has not the inherent jurisdiction to order restoration in cases of this nature" in Vallabha Rama Raja's case. And the petitions were then referred to a Division Bench.

(3.) RAJAGOPALAN J. has considered the question in some detail; and the learned judge has observed at page 553 of the reports: "there is no specific provision in the Civil Rules of Practice for the Court to restore to the file an application for copies that bad been dismissed for default of compliance with a notice which called for the deposit of the required stamp papers. " Rule 129 of the Madras Civil Rules of Practice is before us; and it contains no provision for restoration of a copy application dismissed for default. And RAJAGOPALAN J. has also stated: "though, as I pointed out earlier, R. 129 of the civil Rules of Practice does not expressly provide for restoration to file of applications dismissed for default, it should be taken as well-settled now that the Courts, to which R. 129 applies, have jurisdiction to order such a restoration. " At page 554 of the reports, the learned judge has observed further: "as I said, it should be taken as well-settled now that the Subordinate Courts which are governed by R. 129 among others of the civil Rules of Practice can, in the exercise of the inherent jurisdiction vested in them, restore to file applications for copies which had been dismissed for default, for example, for the failure to comply with the requirement to furnish the stamp papers within the time allowed". Therefore, the position is this. Under R. 129 of the Civil rules of Practice, there is no provision for restoring a copy application dismissed for default. Still, the Madras High Court has held that courts to which R. 129 applies have inherent jurisdiction under S. 151 of the Code of Civil procedure to restore such an application dismissed for default. In fact, rajagopalan J. has said so at page 553 of the reports: "it is apparently the inherent jurisdiction of the court saved by S. 151, Civil Procedure Code that could be invoked in such cases. " Thus, the power of the subordinate courts to restore a copy application dismissed for default does not stem, as such, from R. 129 of the Civil Rules of Practice, but is the result of their inherent power saved by s. 151 of the Code of Civil Procedure to meet the ends of justice or to prevent the abuse of the process of the court. If so, how can it be said that the High court, both on the Original Side, and on the Appellate Side, has no such inherent jurisdiction?