NEELAMMA Vs. REVINDRANATHAN

JUDGEMENT

(1.) This revision petition is directed against the lower courts order invoking the inherent jurisdiction of the court for setting aside the ex parte decree passed in O. S. No. 146 of 1954 on the file of that court. The suit was originally against defendants 1 to 6. The 1st Defendant had entered appearance and had filed a written statement contesting the plaintiffs claim of title to and possession of the suit property. After entering such a contest, the 1st defendant died on 27-6-1955 and the plaintiffs filed an application to record defendants 2 to 6 as the legal representatives of the 1st defendant. The present respondent who is a son of the 1st defendant, entered appearance in the suit and prayed that he may be impleaded as the legal representative of the deceased 1st defendant. Such impleading was ordered by the court on 7-11-1955 and the 1st defendants son was brought on record as the additional 7th defendant and the case was adjourned to 14-11-1955 for his written statement. He failed to appear on 14-11-1955 or to take any step for his defence in the suit. He was accordingly declared ex parte on 14-11-1955 and the case was adjourned to 7-12-1955 for appearance of the 6th defendant. On that day the 6th defendant did not appear and he was declared ex parte The case next stood posted to 20-12-1955 and since none of the defendants was present on that date, the suit was decreed ex parte in favour of the plaintiffs. On 2-1-1956 the 7th defendant filed C. M. P. No. 34 of 1956 praying that the ex parte decree may be set aside and the suit restored to file. In the affidavit filed by him in support of the petition he merely stated the circumstances under which the ex parte decree happened to be passed in the case, but had not offered any explanation as to why he was absent on the dates to which the case stood posted after he was impleaded as the additional 7th defendant. The only ground urged by him in support of his prayer for restoration of the suit was that the ex parte decree was highly prejudicial to him. In dealing with this application the lower court is seen to have dealt with matters which had not been raised by the 7th defendant in his affidavit. The lower court has assumed that the 7th defendant could not have known of the order passed by the court on 7-11-1955 adjourning the case to 14-11-1955 for his written statement. If the defendant or his counsel was present in court on 7-11-1955 he could have known of such an adjournment. If the party was vigilant the same information could have been gathered from the order sheet or the Progress Diary in the case. What had to be explained was why the party absented himself on 7-11-1955, on 14-11-1955 and on 20-12-1955. When no explanation is offered by the party for such absence, it is not for the court to speculate that the absence must have been due to sufficient cause as contemplated by R.13 of O.9 of the Code of Civil Procedure. In dealing with this matter, the lower court has observed as follows:

(2.) The point raised on behalf of the revision petitioners is that an application to set aside an ex parte decree must be dealt with under the special provisions contained in R.13 of O.9 of the Code of Civil Procedure, and not under the inherent power of the court reserved by S.151 of the Code. This position is well settled and has to be accepted as correct. When the legislature has chosen to make a special provision to govern a particular matter, such provision alone should govern that matter. To ignore such a special provision and to deal with a matter directly coming under it, by invoking the inherent jurisdiction of the court as recognised by S.151, will be to defeat the very purpose of enacting the special provision. The provisions of the Code may not be exhaustive so as to cover every possible and conceivable situation and that appears to be the reason why the legislature thought it necessary to enact S.151 recognising the inherent power of the court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the court. The opening portion of the section is to the effect that nothing in this Code shall be deemed to limit or otherwise affect this inherent power of the court. The wording of the section clearly indicates that the court may resort to its inherent power only in respect of matters which do not come under any specific statutory provision. The limitations imposed by such special provisions cannot be enlarged or nullified by taking shelter under S.151. The setting aside of an ex parte decree by the court which passed it, is regulated by the provisions contained in R.13 of O.9. In dealing with an application to set aside an ex parte decree the court has to confine its attention to a consideration of the circumstances specified in R.13 and is not entitled to be guided by any other consideration. Judicial opinion on this question has not been uniform. Some decisions favoured the view that R.13 was exhaustive of the grounds under which an ex parte decree may be set aside by the court which passed it, while another set of decisions took the view that even apart from the provisions of R.13, the court will be justified in invoking its inherent jurisdiction for granting a relief by way of restoring a suit to file. In view of such conflict of decisions, the specific question has a court power, apart from the provisions of O.9 R.13, Code of Civil Procedure, to set aside an ex parte decree passed by itself was considered by a Full Bench of the Madras High Court in Neelaveni v. Narayana Reddi (ILR 43 Madras 94). There the question was discussed in all its aspects and finally the answer was given in the negative. I am in respectful agreement with the decision in that case.

(3.) It follows from the above discussion that the lower court has clearly erred in the exercise of its jurisdiction in invoking the inherent power of the court for setting aside the ex parte decree and restoring the suit to file after having definitely found that the non appearance of the applicant was not due to any sufficient cause as contemplated by R.13 of O.9. Accordingly this revision petition is allowed with costs and the order of the lower court is set aside and the 7th defendants restoration application is dismissed.