B MOHANLAL AND CO Vs. AYOLIBAI

JUDGEMENT

(1.) This suit was dismissed by me on June 30, 1931, under the provisions or Order XI, Rule 21, of the Civil Procedure Code, on account of the plaintiffs default in giving inspection of the documents disclosed in their list of documents to the defendant in accordance with the order made to that effect by the Court. The plaintiffs now apply to set aside the order of dismissal. A preliminary objection is raised by Mr. Setalvad on behalf of the defendant, and he says that the order of dismissal cannot be set aside by a motion, as there is no provision in the Code or in the Rules of the High Court, 1930, to that effect and that the only remedy open to the plaintiffs is either by an application for review of judgment or by an appeal. Now, it is undoubtedly true that there is no specific provision made either in the Civil Procedure Code or in the Rules under which an order of dismissal made under Order XI, Rule 21, can be set aside. It is equally true that an appeal lies against such an order under Order XLIII, Rule 1 (f), and that in a proper case the party affected by such an order may apply for a review under Order XLVII. On the facts of this case, however, an application for review of judgment cannot be maintained. The plaintiffs case is that they were unable to comply with the order for inspection of documents on account of certain circumstances which they have set out in their affidavit and it is not their case that since the order of dismissal they have discovered new and important matter or evidence which after the exercise of due diligence was not within their knowledge or could not be produced by them when the order was made. The only remedy apparently left to them is by way of an appeal. Now that is a costly remedy and the question is whether that is the only remedy open to them or whether as contended by Mr. Coltman they cannot get the relief they seek by an application under the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code. The point raised is not, as far as I know, covered by any direct authority, nor have counsel been able to refer me to any authority on the point.

(2.) The plaintiffs were not present when the order was made, and it was made ex parte; but it is clear that the provisions of Order IX, Rule 13, do not apply to the case. The question then is whether an application to set aside an order made under the provisions of Order XI, Rule 21, can lie under Section 151 of the Code.

(3.) Order XXVII, Rule 15, of the Rules of the Supreme Court, runs as follows:- Any judgment by default, whether under this order or under any other of these rules, may be set aside by the court or a judge, upon such terms as to costs or otherwise as such court or judge may think fit, and where an action has been set down on motion for judgment under Rule 11 of this Order (corresponding to Order VIII, Rule 10, of our Code) such setting down may be dealt with by the court or a judge in the same way as if judgment by default had been signed when the case was set down.