BAIKUNTH NATH Vs. DHURI MALL

JUDGEMENT

(1.) The suit was dismissed on 11 -4 -1969 by the learned Munsif for default of appearance of the plaintiff when the suit was called for hearing. The plaintiff then made an application u/O. IX, R. 9 of the CPC for setting aside of that order but this application was dismissed for default on 6 -9 -1969 as neither the plaintiff nor his counsel was present when the case was taken up for hearing. Then the plaintiff made an application as headed u/S. 151 of the CPC for setting aside of the order dated 6 -9 -1969 and restoration of the application u/O. IX, R. 9, CPC to its original number. The learned Munsif by his order dated 24 -1 -1970 rejected the application in the following words: - -

(2.) Sri N.C. Rajvanshi, learned counsel appearing for the plaintiff applicant, contended that the court below refused to exercise a jurisdiction vested in it in rejecting the application u/S. 151, CPC, under a wrong impression that such an application did not lie and that the court had no power to take recourse to its inherent jurisdiction as the order sought to be set aside was appealable. Learned counsel submitted that the order dated 6 -9 -1969 dismissing the application u/O. IX, R. 9, CPC for default of appearance, was not an appealable order. Reliance was placed in this connection by the learned counsel on the case of Gaja v/s. Mohd. Farukh ( : AIR 1961 All. 561) in which it has been held on a consideration of previous decisions of the Allahabad High Court and other High Court's that an order dismissing for default applications for restoration of applications u/O. IX, Rr. 9 and 13, is not appealable u/O. 43, CPC. On the main question whether a court can invoke its inherent jurisdiction u/S. 151 of the CPC for setting aside the dismissal for default of an application u/O. IX, R. 9, CPC, even assuming that the order was appealable u/O. 43 CPC, the learned counsel referred to a Division Bench decision of this Court in the case of Majhauli Raj Education Society v/s. Moti Lal (1969 AWR 775) in which the Division Bench held that it cannot be laid down that the provision of O. 43, R. 1(d) CPC precludes any application u/S. 151, CPC and in proper cases the aggrieved party may move an application u/S. 151 CPC instead of filing an appeal u/O. 43, R. 1(d) CPC.

(3.) Sri P.M. Gupta, learned counsel for the defendant opposite party, in reply submitted that recourse to exercise of inherent powers u/S. 151 of the CPC cannot be taken by the court for affording relief to an aggrieved party when under the provisions of the Code the aggrieved party had its remedy by way of an appeal and it does not file an appeal against the order which it seeks to be set aside by making an application u/S. 151 CPC. Learned counsel further submitted that in any view of the matter no revision will lie against an order passed on an application u/S. 151 CPC. Learned counsel also submitted that on a true construction of the impugned order of the learned Munsif what he has done is to refuse to exercise his jurisdiction u/S. 151 of the Code which is discretionary on the ground that the plaintiff could have gone up in appeal and he did not avail of that opportunity. Sri Gupta referred to a single Judge's decision in the case of Pt. Shyam Sunderlal v/s. Gul Charan ( : 1956 AWR 414) in which it was held that the law appears to be fairly well settled that where an appeal lies u/O. 43, R. 1, from an order of dismissal passed u/O. XI, R. 21 of the CPC, a court is not competent to proceed u/S. 151 of the CPC against the order of dismissal. A reference was also made to a Division Bench decision in the case of Raja Sriniwas Prasad Singh v/s. SDO Mirzapur ( : 1962 AWR 475) and my attention was drawn to the following observations of the learned Judges at pp. 491 -492 of the report: