C. RAVI Vs. A. JANARDHANAN

JUDGEMENT

(1.) THIS Civil Miscellaneous Petition is for dispensing with the production of the fair order dated 24.7.1990 in R.P.No.75 of 1989 in O.S. No.254 of 1987 on the file of Sub Court, Dharmapuri, which is sought to be revised in the above civil revision petition. The said C.R.P. is also posted before me along with the said civil miscellaneous petition, for admission. When the said Civil Miscellaneous Petition and the Civil Revision Petition originally came up before me for admission on 9.8.1990, I posed the question to the learned Counsel for the petitioner, whether the production of fair order could be dispensed with at all by the court and whether arid the civil Revision petition is validly presented without the production of certified copy of the fair order. Then I also expressed that the affidavit in support of the petition for dispensing with did not give necessary particulars. Then the learned Counsel for the petitioner took time for filing an additional affidavit. When the C.R.P. and C.M.P. were posted the next day on 10.8.1990, I posed the above said question of maintainability of the above said C.M.P., for dispensing with. Then after making some submissions, the learned Counsel said that he would file a copy of the fair order itself within a week. So, I gave him time for a week. But, on 27.8.1990 when the matter came up again, he did not file the copy of the fair order, but argued that the said CMP, was maintainable. Before I deal with the said argument of the learned counsel, let me refer to the relevant rules. Order 4, Rule 21 of the Appellate Side Rules which were framed by this Court under Section 122 of the Code of Civil Procedure, 1908, provides as follows:

(2.) HOWEVER , the learned Counsel contended that this Court could dispense with the production of the copy of the fair order even in the case of Civil Revision Petitions under its inherent powers referred to in Section 151, C.P.C. The learned Counsel, in this connection relied on Century Flour Mills v. S. Suppiah : AIR 1975 Mad 270 where it was held that injunction could be granted by court under Section 151, C.P.C. even in a case which does not come under Order 30, C.P.C. But the said decision, in my opinion, can have no application to the question at issue, In a case not covered by Order 39, C.P.C. the Court can no doubt grant injunction under Section 151, C.P.C. But, here, the Appellate Side Rules framed under C.P.C., specifically provides that the memorandum of Civil Revision Petition "shall" among other things, be accompanied by a certified copy of the judgment, if any, on which the decree is based, and so, the inherent power under Section 151, C.P.C., cannot be exercised inconsistent with or coming into conflict with the above said Rules. The Supreme Court in Ramchand & Sons Sugar Mills v. Kanhayalal Bhargava, A.I.R. 1976 S.C. 1209 held that the inherent power "will not be exercised if it is exercised inconsistent with, or comes into conflict with, any of the power expressly or by necessary implication conferred by the other provisions of the Code". In Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal : AIR 1962 SC 527 too it was held that inherent powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the code or against the intentions of the Legislature".

(3.) THE learned Counsel for the petitioner, also relied on Shanmugham Transports v. Kunju Chettiar : AIR 1971 Mad 37 . But the said decision does not help him at all. The said decision actually points out that in Balakrishna Industrial Works v. Venkatachari : AIR 1954 Mad 883 a Bench of this Court held that the provision in Order 41 Rule 1 C.P.C., that the appeal memorandum shall be accompanied by a certified copy of the decree appealed from "is imperative and the presentation of a Memorandum of Civil Miscellaneous Appeal without a copy of the decree order appealed against, is not a valid presentation and that rule does not empower an appellate court to dispense with the production of a copy of the decree with the Memorandum of Appeal. In : AIR 1971 Mad 37 referred to above, also observed as follows: