KALI PADO SHARMA Vs. SURENDRA NATH MAHATHA

JUDGEMENT

(1.) This application by the plaintiff is directed against an order dated the 20th June, 1973, passed in title suit No. 42 of 1971 entertaining the written statement filed by the defendants at the stage when the suit was set for ex parte hearing.

(2.) The relevant facts are that the suit was filed on the 15th December, 1971, for specific performance of contract. The defendants entered appearance on 8th July, 1972 on which date the court passed an order for the written statement to be filed on 27-7-1972. It appears that the defendants went on praying for time to file the written, statement and ultimately when further time was prayed for, such prayer was rejected by order dated 24-4-1973. On that day it was further ordered that the defendants may contest without written statement. Thereafter on 18-5-1973 the defendants filed written statement but the court observed that "in view of the order dated 24-4-1971 the W. S. is not accepted ....." On 20-6-1973 the defendants then filed an application for acceptance of the written statement. The court observed that although the written statement had been put in after a great delay, ex parte hearing had not yet begun and, therefore, the written statement was accepted on the condition that the defendant paid Rs. 50/- as cost.

(3.) The question raised is whether the written statement was to be so entertained. Mr. Sinha appearing for the petitioner says, it could not be firstly because the order entertaining the written statement amounts to reviewing the previous order of refusal by the predecessor-in-office of the court below and that too, after the statutory period for reviewing an order had expired, and, secondly, because the stage till which the written statement could be filed had passed, the suit having been set for hearing in default of the written statement. In support of his first reasoning he has relied on a decision of this Court in Hiro Singh v. Kazi Syed Ahmed Hussain, AIR 1922 Pat 204, and particularly upon the observation that the exercise of a power by a court to recall an order is limited only to recalling such orders which have not been perfected; and also upon a case reported in Radhanath Pathak v. Bihar State Board of Religious Trust, 1968 BLJR 155 = (AIR 1968 Pat 110), and particularly to the observation that after the period of limitation has expired, a court cannot exercise its inherent power under Section 151 of the Code of Civil Procedure. In support of the second reasoning he has cited the decision in the case of Bihar State Electricity Board v. New Gobindpur Coal Co. (Pvt.) Ltd., 1973 BLJR 211 = (AIR 1973 Pat 191). I will deal with these case laws also at the appropriate place.