LACHMAN SINGH Vs. HASI RANI SINGH

JUDGEMENT

(1.) This Rule is directed against an order passed by the learned Munsif 1st Court at Howrah in Title Suit No. 237 of 1964 being Order No. 122 dated 10-9-1973.

(2.) The plaintiff was ordered by the Court to deposit Commissioner's fees by Order Nos. 91 and 92 dated 18-3-1971 and 25-3-1971 and another chance was given to the plaintiff to deposit the same by Order No. 114 dated 26-4-1973 again by Order Nos. 114 and 115. Thereafter, in spite of repeated adjournment being given to the plaintiff on his own applications, on one plea or the other the plaintiff failed to carry out the court's order and ultimately by Order 116 dated 2-5-1973 the plaintiff's suit was dismissed. Against this order the plaintiff made an application under Section 151 of the C.P.C. to set aside the order of dismissal to restore the suit That application for restoration was rejected by the learned Munsiff. Against that order, Order No. 122 dated 10-9-1973 the plaintiff has come up in revision under Section 151 of the Code of Civil Procedure. A preliminary objection has been taken by the learned Advocate for the opposite party, his contention is that the plaintiff has not come up against Order No. 116 dated 21-5-1973 whereby the suit was dismissed. Therefore, Order 116 stands and the application under Section 151 C.P.C. against Order No. 122 is not maintainable. As the learned Munsif failed to exercise his inherent jurisdiction to restore the suit the plaintiff having other remedies such as filing an appeal against the order of dismissal of the suit alternatively by filing an application under provisions of Order 9, Rule 9 for restoration of the suit he having failed to avail of either of these remedies cannot invoke the inherent jurisdiction of the Court to restore the suit and no revision lies against the non-exercise of the Court's inherent power.

(3.) On the other hand, the learned Advocate for the petitioner has contended before me that for non-compliance with the Court's order regarding the deposit of the Commissioner's fees it is not within the jurisdiction of the Court to dismiss the suit. That can only be done wherever it is so provided under the Code of Civil Procedure and ha has referred to several provisions of the C.P.C. such as Order No. 11 Rule 21.