VESTABHAI MADHUBHAI MACHHI MITNA Vs. TARACHAND VESTABHAI MACHHI

JUDGEMENT

(1.) This application is filed by the petitioner against the impugned order dt. 6-3-1991 passed by the learned Civil Judge (J.D.), Umargaon by which an application Exh. 32 filed in Regular Civil Suit No. 74 of 1989 filed by the petitioner-plaintiff came to be rejected. In this case the petitioner, is an unfortunate father of 4 able bodied sons, i.e., the respondents herein, who had to file the above mentioned suit against his sons and obtained an ex-parte injunction from the Court of the learned Civil Judge in terms of para 8(1) of application Exh. 5 upto 10-1-1990 which came to be extended from time to time. However, when application Exh. 5 came up for hearing on 12-5-1990, neither the plaintiff nor his Advocate remained present. Therefore, in the absence of any application to extend the interim relief granted earlier, the learned Judge did not extend the interim relief and passed an order that the interim relief granted earlier came to an end automatically. Thereafter, on 5-10-1990 the petitioner submitted an application Exh. 32 under Sec. 151 C. P. C. He has stated that he is a poor man, he is ignorant about law and his Advocate has not informed him about the date of hearing and therefore, he could not make an application for extending the interim relief granted earlier. He has also stated in application Exh. 32 that his Advocate also through oversight did not submit any application for extension of ex-parte injunction. However, said application was objected by the present respondents on a technical ground that the application was not filed under Order 39, Rules 1 and 2, C. P. C. but the same is filed under Sec. 151, C. P. C. and therefore, the same required to be rejected. The learned Judge was also of the view that said application came to be filed after a lapse of five months and therefore, according to the learned Judge he is unable to exercise his inherent powers under Sec. 151, C. P. C. in the interest of justice. In the circumstances, he rejected the application.

(2.) Inherent powers are required to be exercised in the interest of justice and for the benefit of poor persons. Here, an unfortunate father of 4 sons had to approach the Court against his sons who are depriving the present petitioner-plaintiff of his livelihood. Therefore, if the Courts will not exercise its discretion in favour of such person, it will result into failure of justice. For this purpose, it is not a matter whether the application is made under Sec. 151, C. P. C. or under Order 39 Rules 1 and 2, C. P. C. These are all technical grounds, if the powers are vested in the Court, the Court must exercise the powers for the benefit of the poor. In this case, there is a discretion vested in the learned Judge which he has failed to exercise and therefore, under Sec. 115, C. P. C. this Court has to exercise its revisional jurisdiction in order to allow this Revision Application. Accordingly, I allow this Revision Application and order that the ex-parte order passed by the learned Civil Judge (J.D.), Umargaon on 22-12-1989 in terms of para 8(1) of application Exh. 5 to continue till final disposal of the Reg. Civil Suit No. 74 of 1989. The impugned order dt. 6-3-1991 passed by the learned Civil Judge (J.D.), Umargaon is hereby quashed and set aside.

(3.) Rule made absolute with special costs of Rs. 1000.00. Present respondents are directed to pay the same to the petitioner.