KANSHI RAM Vs. DHARMI

JUDGEMENT

(1.) THIS is a plaintiff's application for setting aside the order of this Court dated 2 9 1962 dismissing his revision petition for default of prosecution.

(2.) THE defendants in the case are Mt. Dharmi and Balak Ram. It appears that Sri Man Mohan Nath Advocate appeared for Balak Ram on 20 8 1952 but the other defendant Mt. Dharmi was absent and she had not been served. The case was therefore adjourned and the plaintiff petitioner was ordered to take fresh steps against Mt. Dharmi within a week. Steps were however not taken despite a reminder, and, as stated, the revision was dismissed for default on 2 9 1952. The present petition for setting aside the order of dismissal and restoration of the revision was filed on behalf of the plaintiff on 3 10 1952.

(3.) WITH great respect, I am unable to agree with the view expressed in the aforesaid ruling that a dismissed revision petition cannot be restored under Section 151, C. P. C. And my reason for thus respectfully differing from that view is based upon the very circumstances referred to in that ruling for holding that an application for restoration of a dismissed revision petition does not lie, namely, that neither Order 9, Rule 9 nor Order 41, Rule 19, Civil P. C., applied to such petitions. In other words, there is no provision in the Civil Procedure Code for restoration of dismissed revision petitions. If so, if otherwise the case is a fit one, a dismissed revision petition should be restored by a Court in exercise of its inherent jurisdiction under Section 151. The reason for this view is the well established principle that the inherent power of the Court is meant to meet those cases which are not covered by the express provisions of the Civil Procedure Code. 'Bhagat Singh v. Dewan Jagbir Sawhney', AIR 1941 Cal 670 (F). It is manifest therefore that to apply the provisions of Section 151 to cases not covered by the express provisions of the Code is, not tantamount to assuming jurisdiction not conferred upon a Court, as observed in the aforesaid '1945 Madras case' (E). I therefore hold that in a fit case a dismissed revision petition can and should be restored under Section 151, C. P. C.