SHYAM SUNDER LAL Vs. GUL CHARAN AND ORS

JUDGEMENT

(1.) This is a Defendant's application in revision against an order passed by the Additional Munsif Meerut, vacating an order of dismissal passed under Order XI, Rule 21 Code of Civil Procedure

(2.) It appears that the Defendant served interrogatories which the Plaintiff was required to answer. An objection was taken by the Plaintiff that the interrogatories were irrelevant and vexatious and that he should not be required to answer them. Subsequently an application was made by the Defendant complaining that these Plaintiff has not answered the interrogatories and that the suit be dismissed. The learned Munsif passed an order on the 13th of March that these applications made by the Defendant and by the Plaintiff should be put up for orders on the 24th of March 1950 which was the date fixed for final hearing in the case. On that date the Plaintiff's counsel did not turn up in time and after waiting for more than 15 minutes the learned Munsif said that the Defendant had not taken any objection against the interrogatories as required by Order XI, Rule 6. He therefore, dismissed the suit for want of prosecution under Order XI, Rule 21 Code of Civil Procedure The same day some time afterwards the Plaintiff's counsel appeared and made an application supported by an affidavit praying that the order of dismissal be set aside. The court passed an order vacating the order of dismissal and directed that the application be disposed of in the presence of parties on the 8th April 1950. On that date the case could not be taken up and was adjourned to the 6th of May 1950 when the court passed an order saying that by oversight it had not taken into consideration the application and objection relating to the interrogatories and before disposing of those applications it had passed the order of dismissal. The learned Munsif observed in that order that it appears from the order sheet that no question of dismissal of the suit under Order XXI, Rule II arose. He purporting to exercise his powers Under Section 151, Code of Civil Procedure, thought it proper in the ends of justice to up hold the order vacating the order of dismissal and rejected the Defendant's application to maintain the dismissal.

(3.) Learned Counsel for the applicant argues that an appeal lay under Order XLIII, Rule I from an order of dismissal under Order XI, Rule 21 Code of Civil Procedure He contends that in the circumstances the court below could not have exercised any power Under Section 151 of the Code of Civil Procedure. My attention has been invited to case Nageshar Prasad v. Gudri Lal, 1933 AIR(All) 382 a Division Bench decision of this Court and to two other cases, one of the Calcutta High Court Asuthosh Ghosh v. Indu Bhushan, 1927 AIR(Cal) 158 and another of the Nagpur High . Court in Krishna Kumar v. Jawad Singh, 1947 AIR(Nag) 236 The view taken in these decisions is that in the presonee of an express provision under court under which a party might seek his remedy it is not open to invite the court to exercise its inherent jurisdiction Under Section 151 of the Code of Civil Procedure. In Chander Bhan v. Lallu Singh,1947 AIR(All) 343 a learned Judge of this Court took the same view and following it expressed the opinion that the only correct course open after a dismissal under Order XI, Rule 21 is to prefer an appeal under Order XLIII, Rule I of the Code of Civil Procedure. The learned Judge also expressed the view that interference Under Section 151 of the Code of Civil Procedure is not justified.