NATHUNI SINGH Vs. NAIPAL SINGH

JUDGEMENT

(1.) This is an application by the judgment-debtors against whom an ex parte decree ior mesne pronts to the tune of about Rs. 95,000 has been passed. The petitioners made an application under Order 9, Rule 13 of the - Code of Civil Procedure for setting aside the ex parte decree. That application, however, was dismissed for default. Thereafter, they made an application under Section 151 of the Code oi Civil Procedure for restoration oi the application made under Order 9, Rule 13 of the Code of Civil Procedure, which had been dismissed for default. The application was opposed by the decree-holders-opposite party. The learned Additional Subordinate Judge held that the application under Section 151 of the Code oi Civil Procedure was not maintainable and that the petitioners did not establish a case for restoration of the application. Being thus aggrieved, the present application has been filed in this Court.

(2.) The application that the petitioners made for restoration of the application under Order 9, Rule 13 of the Code of Civil Procedure was also sought to be made under Order 9, Rule 9 of that Code though, as already observed, it was also under Section 151 of the same Code. The decisions are clear that provisions of Order 9, Rule 9 did not apply to applications under Order 9, Rule 13 of the Code of Civil Procedure. The question, however, is whether the Court has got inherent jurisdiction under Section 151 of the Code of Civil Procedure to restore such application in proper cases. The Court below has relied on a Bench decision of this Court in Remghulam Singh v. Sheodeonarain Singh, AIR 1922 Pat 121 (A). That was a case in which an application under Order 9 was made for setting aside an order of dismissal for default of a former application made under Order 9 of the Code of Civil Procedure. Their Lordships following a Full Bench decision of this Court in Bhubuneswar Prasad Singh v. Tilakdhari Lal, 4 Pat LJ 135: (AIR 1919 Pat 192) (B), held that the provisions of Order 9 did not apply to the case. Then their Lordships were asked to treat the application as being one under Order 47 of the Code of Civil Procedure, but that prayer could not be allowed as the order was made by an officer other than the officer who made the original order. Then it was contended that under Section 153 of the Code of Civil Procedure the Court could amend any defect or error in the proceeding. That contention was also repelled as their Lordships held that the dismissal order was not an error or defect in the proceeding. Whether an order for restoration could be made under Section 151 of the Code of Civil Procedure or not was not considered by their Lordships. This question came to be considered subsequently by another Division Bench of this Court in Mt. Kapura v. Narain, ILR 27 Pat 187: (AIR 1949 Pat 491) (C). In that case certain defendants applied under Order 9, Rule 13, for restoration of the suit which had been decreed ex parte. That application having been dismissed for default, as in the present case, they made an application under Order 9, Rule 9 and Section 151 of that Code for restoration of the application. That restoration application, however, was allowed on the defendants' paying costs to the plaintiff who received the costs and thereafter impugned the restoration order by making an application in revision in this Court. The revision application was dismissed on the ground that the plaintiff having received benefit under the order by accepting costs could not challenge the propriety of that order. Since, however, a good deal of argument had been advanced before their Lordships as regards the applicability of Section 151 of the Code of Civil Procedure in such a case, their Lordships expressed their opinion though it was a mere obiter dictum that in appropriate cases Section 151 of the Code of Civil Procedure could apply for restoration of such an application. In expressing that opinion their Lordships considered the Bench decision of this Court referred to above, namely, AIR 1922 Pat 121 (A) and other cases taking the same view as was taken in the said_ Patna case and observed that in none of those cases it had been laid down that an application under the inherent power of the Court to restore a case which had been dismissed for default was not maintainable. They were cases in which it was only laid down that the provisions of Order 9 of the Code were not applicable to the dismissal for default of an application under Order 9, Rule 9 or Rule 13 of the Code. Their Lordships then referred to with approval certain Calcutta and Allahabad cases in Sarat Krishna Bose v. Bisweswar Mitra, ILR 54 Cal 405: (AIR 1927 Cal 534) (D) and Ga-nesh Prasad v. Bhagelu Ram, ILR 47 All 878: (AIR 1925 All 773) (E), wherein it had been held that in appropriate cases it is open to the Court to invoke its inherent jurisdiction to do that justice between the parties for which alone it exists, if a proper case is made out for the Court to exercise those special powers. No doubt, the opinion expressed in the Patna case is ,an obiter dictum, but is very weighty, and I perfectly agree with the view taken in that case by their Lordships. Section 151 of the Code of Civil Procedure, in my opinion, is wide enough to clothe the Court with power to restore an application for re-hearing of the suit made under Order 9, Rule 13, C. P. C., which had been dismissed for default. The order of the Court below that the application was not maintainable is, therefore, wrong in law.

(3.) The question is whether the petitioners have got any case on merit. In this case the parties have not adduced any evidence. The case has been decided only on arguments. The learned Subordinate Judge has however, relied on the order-sheet of Miscellaneous Case No. 2 of 1955 which was under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree for mesne profits, and, relying on that order-sheet alone, has held that the petitioners had been guilty of laches and negligence. That document is not on the record and had not been exhibited in the case. Whatever may have been the laches on the part of the petitioners on the previous occasion, the Court had really to see whether on the day on which the application was dismissed there was any case for his not taking any step in the case. On that date, it would appear, a petition for time was filed on the ground that the Karinda had not yet turned up. The Court rejected that application on the ground that there was nothing to show that it was filed on their behalf. That application is not on the record of the case. It appears, however, that in that case till the date on which it was dismissed for default notices of the application had not been served on the opposite parties as there had been certain defects in the application itself. Therefore, the application that was filed on that date must have been filed by the petitioners and none else, as the opposite parties had not appeared till then. In my opinion, the ground on which the Court below has rejected this application is absolutely baseless. The Court rejected the application also on the ground that the application itself is frivolous but gave no reason for holding so. Considering all these things, it appears that the case of the petitioners has not been properly considered by the Court below.