KESRA Vs. BEGA

JUDGEMENT

(1.) Bega and Harchand had filed this application for setting aside the ex parte decision given against them in revision petition No. 7 of 1956, decided on

(2.) -8 -56. In this petition it has been urged that the service of process on them for appearance on 2 -8 56 was defective inasmuch as the same was not served at all on them and secondly even if the service be taken as effective, they were precluded from appearing on that date on account of old age and physical infirmity of Harchand and serious illness of the wife of Bega who is said to be a mental case. In support of this an affidavit of one Surja has been filed. Shri P. N. Dutt who argued this application urged that although there was no specific provision in the Civil Procedure Code (Order 41 rule 17) for setting aside the ex parte decision given in revision petition heard by this court, yet the same maybe considered in the exercise of its inherent powers by the Board under sec. 151 C.P.C. read with Order 41 rule 21 C P.C. In support of this contention he drew our attention to RLW. 1952 page 32 wherein a single judge of Rajasthan High Court held that in the exercise of inherent powers in cases not provided for, the courts may apply analogous provisions of the Code nearest in point to the circumstances before it. The learned judge further observed that an application in revision is more or less in the nature of an appeal in a much restricted sense, and accordingly exercised its inherent power under sec. 151 C.P.C. in restoring the revision petition which was dismissed in default as there was sufficient cause for doing so. The Board has followed this in restoring a revision petition dismissed in default in R. R. D. 1956 page 116(b). Kesra and Bhadra in whose favour the revision petition was decided did not appear to contest this application Shri Balkrishna Pareek. Govt. Advocate who was also a party in the revision proceedings however contested this application. He urged that the ruling cited by the learned counsel was not on all fours with the facts of the present case which was not for restoration of the revision application dismissed in default but for setting aside the final order given ex parte. It was also pointed out that it will be nothing short of an abuse of the process of the court if after proper service on the applicants they were allowed to re agitate the matter on grounds stated in their application 2. We have given our anxious thought to the main point involved in this case namely whether in the absence of any specific provision for setting aside an ex parte decree or order given in revision, this court can exercise its inherent powers under sec. 151 C.P.C. to set aside the said order or decree on principles analogous to these of Order 41, rule 17 The scope of the application of sec 151, C.P.C. has been examined by the various High Courts. In Narsingh Dass vs. Mangal Dube (83)5 All., 163 (172) (FD) it was observed that courts are not to act upon the principle that every procedure to be taken is prohibited unless it is expressly provided by the Code but on the converse principle that every procedure is to be accepted as permissible until it is shown to be prohibited by the law In A.I.R. 1915 Cal. 40(51)(DB) it was observed that every court whether a civil court or otherwise must in the absence of express provision in the Code for that purpose, be deemed to possess such inherent powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. In A. I R. 1933 All. again it was observed that "the court has inherent power to act according to justice, equity and good conscience specially in India where every court is a court of equity as well as of law." The trend of decisions of the various High Courts therefore is to the effect that the inherent powers of the courts being very wide and undefinable the limits of such jurisdiction should be carefully guarded and its exercise in an arbitrary and capricious manner be effectively prevented. What it really means is that the inherent power of a court under sec. 151 C.P.C. can be exercised as the section itself indicates only for the ends of justice or preventing the abuse of the process of the court. It is also a rule of law generally accepted by all the High Courts that in exercising inherent powers in cases not provided for in the Code, the courts may apply analogous provisions of the Code nearest in point to the circumstances of it. Acting on these principles of law we are of the opinion that in the absence of any specific provision to set aside an ex parte order or decree given by us in the revision petition referred to above, we in the exercise of our inherent powers under sec.151 C.P.C. are competent to examine whether or not there exist sufficient cause for setting aside the ex parte order.

(3.) On behalf of the applicants an affidavit of one Surja alone has been filed. We have read this affidavit and we are unable to act on it for the reason that it does not disclose with sufficient clearness which part of it is based on information and which on belief of the deponent. The verification on this affidavit is to the effect that the entire contents were true according to the knowledge of the deponent and according to information received and believed to be true. Such a verification is infructuous as laid down in AIR 1944, Nagpur, page 161. It has also not been satisfactorily explained to us why the party itself did not give an affidavit of his own. It may be that Harchand is too old to appear to give an affidavit of his own. But surely Bega could do without any such difficulty. It is also hot clear to us as to how the present deponent Surja who is no party to these proceedings has ventured to give this affidavit. In para 1 of the affidavit he says that the service was not according to law. Surely he is not conversant with the provisions relating to the service of summons etc. and if by some stretch of imagination it can be taken to be otherwise, he should have stated in clear words as to where the illegality in the service of summons lay. In paras 2 and 3 he has deposed about the physical infirmity of Harchand and the illness of the wife of Bega which prevented him from attending the court on the particular date. It is not clear as to what was the source of getting this information. Such an affidavit of a person who is not a party to the proceedings cannot in our opinion be relied upon. Further as we look in the processes which were served on these two persons we find that the same were served on term in person, duly endorsed and attested by the process server and the witness whom he found at the site. There is indeed a little over -writing on the back of these summonses to the effect that on one instead of Bega the name of Harchand was written and on the other instead of Harchand the name of Bega was written. There are thumb impressions on both. We cannot in the absence of :any conclusive evidence accept the contention of the learned counsel for the applicants that this service was fictitious. There is thus no sufficient cause for setting aside the ex parte order given by us and accordingly the application stands rejected.