BULA DABLOO Vs. SRI KANTH HANDOO

JUDGEMENT

(1.) THIS is a revision under S. 115 of the Civil P. C. preferred in the following circumstances. The petitioner instituted a suit for declaration and injunction against the respondent. That suit was dismissed for plaintiffs default. The plaintiff thereupon preferred an application under O. 9 R. 9 Civil P. C. to set aside that dismissal. This application was also dismissed for default. This led the plaintiff to prefer another application to restore to file his application under O. 9 R. 9 which was dismissed for default. The learned Subordinate Judge dismissed this application on the ground that he had no jurisdiction to entertain it by invoking the provisions of S. 151 of the Civil P. C. and that as the plaintiff had a remedy to prefer an appeal against the order dismissing the O. 9 R. 9 application he ought to have pursued that remedy and not sought to come in by another application to restore the O. 9 R. 9 application. The plaintiff who is aggrieved by this order has come up to this court in revision.

(2.) THE learned counsel for the respondent has in the main reiterated the ground urged in the lower court by placing reliance upon Doma Chadhurry V. Ram Naresh Lal, A. I. R. 1959 Patna 121 (F. B.). This decision says that an order rejecting an application under O. 9 R.9 being appealable under O. 43 R. 1 (C) no application to restore such an application can be maintained by resort to the provisions of S. 151 of the Civil P. C. This ruling also points out that the dismissal of an application under O. 9 R 9 stands on the same footing as the dismissal of it on merits and that in both the cases the order of dismissal is equally appealable under O. 43 R. 1(C). The learned counsel for the petitioner on the other hand urges that as there is no provision in the Civil P. C. dealing with an application to restore to file an O. 9 R. 9 application dismissed for default, a court is entitled to take recourse to the wide provisions of S. 151 and allow that application with a view to subserving the ends of justice. Reliance to this position is placed on Madan Lal Agarwala V. Tripur. Modern Bank Ltd. A. I. R. 1954 Assam 1 (F. B.) am Pooranchand V. Komalchand, A. I. R. 1962 M. P. 64. There are also certain rulings of the Nagpur High Court which have been referred to with approval in A I. R. 1954 Assam (Supra). These decisions no doubt strike a note sharply different from the one sounded in A. I. R. 1959 Patna 12(F. B.). The simple question is which of these conflicting views should be accepted. In choosing between these two rival views, I think can legitimately take into consideration the aspect as to which of the two views arms the court with wider powers and enables it to exercise jurisdiction to remedy defects and mete out even -handed justice in a given situation when there is no specific provision in the Code providing for such a situation. I am inclined to treat with less favour the view which would take away from the court than the view which gives the court wider and ampler powers. If it were otherwise, I think the courts may find themselves not infrequently in what may be called strait -jacket and be confronted with situations in which they may find themselves almost helpless to do what the requirements of justice may demand. I, therefore, would prefer to follow the view expressed in A. I. R. 1954 Assam 1 (F. B) which is adopted in A. I. R. 1962 M. P. 64 (Supra). This view as I already indicated is that the court can in a case like the present well exercise its inherent powers under S. 151. I should not be understood as saying that merely because S. 151 clothes a court with wide and ample powers, those powers can be exercised without sufficient justifying grounds or except on proper judicial lines.

(3.) IN the present case if the revision is not allowed the result would be that the plaintiffs suit would fail forever. This is far too serious a result to emanate from an innocent looking order of dismissal of an O. 9 R. 9 application for default. I would, therefore, set aside, the order of the court below and direct that it is competent for the lower court to consider the merits of the application for restoration of the O. 9 R. 9 application and if it is satisfied that there is a case for restoring to file the O. 9 R. 9 application, do so by resorting to the provisions of S. 151 Civil P. C. It is also open to the court below if and, when it allows the application to put the applicant -plaintiff on such terms as the circumstances of the case may require.