TILESHWARI DEVI Vs. BHADAI MAHTON

JUDGEMENT

(1.) The heirs of the original defendant No. 1 of Title Suit No. 34 of 1969 are the petitioners, being aggrieved by the order dated the 2nd April, 1975 passed by the Munsif, Aurangabad, in Miscellaneous Case No. 149 of 1974.

(2.) The facts are short and simple. The provision of law to be applied is plain. After the plaintiff Opposite Parties Nos. 1 to 4 instituted the aforesaid title suit the matter with regard to the pecuniary jurisdiction of the trial court as also the matter of court-fee was agitated before the learned Munsif, By an order dated the 19th December, 1974 the then Munsif, Aurangabad directed return of the plaint to the plaintiffs on the ground that the valuation of the suit was more than Rs. 5,000 and .as such was beyond the pecuniary jurisdiction of the Munsif. Subsequent to the passing of that order it seems that the learned Munsif was transferred and Shri S.M.I.I.F. Alam came as his sucee.vor in office. Before Shri Alam had joined, an application had been filed by plaintiff-opposite parties Now. 1 to 4 under Section 151 of the Civil P. C. (hereinafter referred to as "the Code") for recalling the order dated the 19th December, 1974 on the ground that that order was erroneous. Shri Alam entertained the application under Section 151 of the Code and by the impugned order has recalled or set aside the order passed by his predecessor-in-office holding that the previous order was wrong on merits and that the Munsif had pecuniary jurisdiction to try the suit.

(3.) This application must succeed on a well established principle of law. Where there is a specific provision in the Code for ventilating the grievance of a party aggrieved by an order then the provisions of Section 1-51 of Code cannot be pressed into service. An order returning the plaint under Order VII, Rule 10 of the Code is appealable under the provisions of Order XLIII, Rule 1 (a) of the Code. That being so, Shri Alam, the learned Munsif had no jurisdiction to recall or review or in any way modify the order passed by the predecessor-in-office regarding return of the plaint. Learned counsel for the plaintiff-Opposite Party submitted that there were instances in which the courts did exercise their inherent power under Section 151 of the Code ex debito justitiae. That is true but those cases are such in which a party has been made to suffer by an act of the Court amounting to abuse of the process of the court. It is well settled that actus curiae neminem gravabit; acts of court prejudice none. That principle has no application to the facts of the instant case. Learned counsel for the plaintiff-opposite party invited my attention to the decisions in the cast of Mahendra Lal v. Mossomat Rekhia (AIR 1971 Pat 382), Damodar Prasad v. Aditya Maharaj (AIR 1972 Pat 289) and Abdul Rashid v. Sri Sitaramji Maharaj Brajman (AIR 1974 All 275) (FB). In the case of Mahendra Lal (supra) B.N. Jha, J. was dealing with a matter in which an uncalled case was marked as dismissed for default while the party was present in the court room. It was held that it was a fraud practised on the court and the court could certainly do away with such a fraudulent practice by resorting to the provisions of Section 151 of the Code. In the case of Damodar Prasad & others (supra) Untwalia J., as he then was, was dealing with a case in which a plaint had been rejected for non-payment of court-fee. The question was whether it could be restored on an application under Order IX, Rule 4 or Section 151 of the Code. It was held in that case that the order allowing the restoration in proper exercise of power of Order IX, Rule 4 and Section 151 should be deemed to have been done under Order XLVII, Rule 1 of the Code. In the Allahabad decision referred to above inherent power was invoked to be exercised ex debito justitiae in a case where an execution application was dismissed inadvertently in a routine manner without hearing' the decree-holder despite the earlier order expressly saying that the decree-holder's application be heard in presence of the counsel. On such facts it was held that it was an error of the court and it was axiomatic that no prejudice should be caused to a party on account of an error committed by the Court. These cases are, therefore, of no value to the plaintiff-opposite party. For these reasons I allow this application and set aside the impugned order dated the 2nd April, 1975. There shall be no order as to costs. It may, however, be observed that since the plaintiffs were prosecuting their application under Section 151 of the Code with due diligence, if an appeal is filed by the plaintiffs against the original order dated the 19th December, 1974 I am sure the appellate court in the event of such an appeal being filed will consider this aspect of the matter in dealing with the question of limitation and pass appropriate order in accordance with law.