RAMDHAN Vs. GOBINDRAM

JUDGEMENT

(1.) THIS is an application by one Ramdhan for restoration of an application for revision, which was dismissed for default of the applicant. At first objection was taken by the learned counsel for the opposite party that such an application can not be restored either under Order 9 or sec. 151 of the Code of Civil Procedure and a ruling of Madras High Court, reported A. Ramamurthi Iyer and others vs. T. A. Meenakshisundurammal and another (A. I. R. 1945 Madras P. 103) was cited in support of that view. A single judge of that court held that the dismissal of a case for default of appearance is as much a final order as a dismissal on the merits; and the court can not set aside its own order unless it has jurisdiction to do so. In the case of suits and appeals the power exists under O. 9, R. 9 and O. 41, R. 19, Code of Civil Procedure, to set aside dismissals of suits and appeals in default of appearance; but those provisions do not apply to civil revision petitions and as there is no corresponding provision relating to civil revision petitions the court has no jurisdiction to restore to the file civil revision petitions which have been dismissed for default of appearance. The petitions can not be restored under sec. 151 because that section does not confer upon a court the power to exercise a jurisdiction which it does not otherwise possess. There can be no doubt that there is no specific provision in the Code of Civil Procedure for the restoration of an application for revision dismissed for default. So far as the application of O. 9 is concerned, I am in respectful agreement with the learned Judge of Madras High Court, but so far as he says that such an application can not be restored in any circumstances, even under sec. 151 of the Code of Civil Procedure, I respectfully differ from him. Sec. 151 provides that nothing in this Code (Code of Civil Procedure) shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. The words, necessary for the ends of justice, are very general. Of course inherent power can not be exercised so as to conflict with sound general principle of law or where there is a specific provision of a particular act or order, or where another remedy is open and the party does not avail of it. or negligently fails to pursue it. In exercise of the inherent powers in cases not provided for, the courts may apply analogous provisions of the Code nearest in point to the circumstances before it. There is a specific provision for the restoration of appeals under O. 41, R. 19 An application for revision is more or less, in the nature of an appeal, in much restricted sense. Under sec. 151, an application for revision may therefore be restored. It was held in Sarat Krishna Base vs. Bhweswar Mitra and others (A. I. R. 1927 Calcutta P. 534), that an application for restoration of a suit dismissed for default, which had been dismissed for default, can be restored under sec. 151. The Division Bench, which decided the case observed that where there is no provision in the Code expressly providing for a remedy and none which prohibits a remedy being administered and such remedy is called for in order to do that real and substantial justice for the administration of which it exists, the provisions of sec. 151 may and should be resorted to. Similarly Nebaram vs. Khotaram and another (A. I. R. 1928 Lahore P. 550), where an application for revision was dismissed for default, Jai Lal, J. restored the application saying that there was no reason for previous default by the petitioner and he would in any case, treat the application as an application for restoration of the previous petition and grant the same though he was inclined to think that a fresh petition also lay for revision.

(2.) THE learned counsel for the opposite party himself conceded towards the end that if the view of Madras High Court is to be adopted, it will be very hard on the parties to the revision and that in appropriate cases, sec. 151 of the Code of Civil Procedure can be applied. No other objections have been raised by the learned counsel for the opposite party. THE applicant has proved by his affidavit that there was sufficient cause for his counsel not attending the court when the application for revision was taken up for hearing. I am satisfied with the statements in the affidavit that there was sufficient cause for the absence of the learned counsel.