KAVIRAJ MOHAN SINGH Vs. SHIV JI BHAGATI

JUDGEMENT

(1.) THIS is an application against an order of the Judge Small Cause Court Srinagar dismissing an application of the plaintiff for restoring a previous application dismissed for default on the ground that the application was not maintainable. The learned Judge did not decide the application on its merits but dismissed it in limine, on the ground indicated above. It appears that the learned Judge seems to have been of the view that as an order rejecting the application for default was appealable under Order 43 Rule l(c) C. P. C. the court had no jurisdiction to restore the application under Section 151 C. P. C..

(2.) A careful analysis of this provision clearly indicates that an appeal would lie only against an order under Order 9 Rule 9 C. P. C. rejecting an application for an order to set aside the dismissal of a suit. Clause (c), therefore, clearly postulates that there must be an order dismissing a suit for default and an application to set aside that order. In the instant case, the matter does not seem to be covered by Order 43 Rule 1(C), C.P.C. in terms. Even if the application is restored the suit stands dismissed because then the other application which was dismissed for default has to be considered. We do not think that the legislature intended to make an order of the type we have in this case also appealable because this order itself seems to have been passed under Section 151 C. P. C. The Civil Procedure Code contains a provision for filing an application to set aside an order dismissing a suit for default, But there is no provision at all under which an application can be given to restore such an application if it is itself dismissed for default. This can only be done by the courts under the inherent powers contained in Section 151 C. P. C. If, therefore, a court can entertain an application for restoration of an application dismissed for default under inherent powers, there is no reason to suppose that it cannot restore that application also if it is dismissed for default. The power which gives the court a discretion to entertain an application must necessarily give the residuary powers to pass other orders ex debito justitiae. Thus we are unable to construe an order dismissing an application which has itself been dismissed for default as an order dismissing the suit itself so as to be appealable under Order 43 Rule 1(C) C. P. C. Moreover, if an appeal lies against such an order the appeal will be of an illusory nature because the appellate court could not go into the question as to whether the applicant was prevented by sufficient cause from attending the court except on affidavits. The order, if appealable, would only indicate that the application has been dismissed without giving the grounds. In those circumstances, therefore, the appellate court has to again go into the original question regarding the fact as to whether the applicant was prevented by sufficient cause from attending the court. Thus the appellate court would really be acting as an original court in deciding this question. I am fortified in my view by the observations of the Chief Justice Sarjoo Prosad in A. I. R. 1954 Assam 1, which are as follows: -

(3.) TO the same effect are the observations of Untwalla J. in another Patna case reported in A. I. R. 1960 Pat. 504 where he observed as follows: -