DURGA CHARAN SONAR Vs. KALIPROSAD SONAR

JUDGEMENT

(1.) This is an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 374 dated 8th December 1973 and Order No. 375 dated 22nd December 1973 passed by Shri A. N. Mitra, Subordinate Judge. 6th Court at Alipore in Misc. Case No. 22 of 1973.

(2.) The facts of the case may briefly be stated as follows :-- The opposite parties Nos. 1 to 3 instituted a Title Suit No. 7 of 1964 for partition of accounts against the petitioners and Manki Shaw, since deceased, the mother of the petitioner No. 1 and the opposite parties Nos. 1 and 4. On 12th of June 1973 when the suit was fixed for further hearing, no one appeared on behalf of the plaintiffs and as such the suit was dismissed for default. Thereafter the plaintiffs filed an application under Order 9, Rule 9 of the Code of Civil Procedure read with Order 17, Rule 2 and Section 151 of the Code for setting aside the order of dismissal. On the said application Miscellaneous Case No. 22 of 1973 was started. The petitioners contested the application by filing objection. Evidence was adduced by both the parties. The learned Subordinate Judge after considering the evidence on record and the facts and circumstances of the case found "that the plaintiffs have miserably failed to prove that they had any sufficient cause for preventing them from attending the court when the suit was called on for hearing". The learned Judge, however, allowed the Miscellaneous Case and restored the suit to file on condition that the petitioners would pay some costs to the opposite parties. The learned Subordinate Judge observed

(3.) Mr. Radhakanta Bhattacharya, learned Advocate appearing on behalf of the petitioners, submits that when the plaintiffs filed an application under Order 9. Rule 9 and when the case as made out by the plaintiffs was completely disbelieved by the learned Judge, the learned Judge acted without jurisdiction to pass any order under Section 151 of the Code-Mr. Bhattacharya adds that though the learned Judge has not said that he allowed the application under Section 151 of the Code, it must be presumed that he did so because he disbelieved the plaintiffs' case as made out in the application under Order 9, Rule 9. Mr. Bhattacharya submits that there being a specific provision in the Code for seeking relief by a party whose suit has been dismissed for default, the learned Court was in error in exercising its jurisdiction under Section 151 of the Code. In support of his contention Mr. Bhattacharjee first refers to a decision reported in 34 Cal WN 222 = (AIR 1930 Cal 387) (Haridas Mukherjee v. Bijay Krishna Das). In this case an application was filed under Order 9, Rule 13 of the Code for setting aside an ex parte decree. The learned Munsif held that no sufficient cause was shown for the non-appearance of the defendant on the date of hearing, but even then he restored the suit on certain terms. It was held by the Division Bench of this Court "That in making the order in the circumstances of the case the Munsif acted without jurisdiction and it would not have been open to him to apply the provisions of Section 151 of the Code where there is a specific provision in the Code applicable to the case.