SABA Vs. DAYARAM

JUDGEMENT

(1.) THIS is an application under Section 115, Civil P.C. The non-applicants filed Civil Suit No. 217 of 1926 in the Small Cause Court, Balaghat. On 13fch December 1926 the plaintiffs were absent and the suit was dismissed under Order 9, Rule 8, Civil P.C. On the 21st January this year the plaintiffs applied that their suit be restored to file and the dismissal be set aside. The Court restored the suit to file under the powers given it by Section 151, Civil P. C.

(2.) NOW , it is clear that the plaintiffs were entitled under Rule 9 to apply for an order to set the dismissal aside, and if they could satisfy the Court that there was sufficient cause for their non-appearance when the suit was called for hearing the Court could make an order setting aside the dismissal; but under Article 163, Lim. Act, the period of making such an application is limited to 30 days. Here, though the case was dismissed on 13th December 1926, the application was not made until the 21st January 1927. Section 5, Lim. Act, has not been made applicable to an application under Order 9, Rule 9, and therefore that section will not apply to the present case. I am clearly of opinion that, where a definite period of limitation has been provided by law within which action must be taken, a Court is not entitled to extend such period by purporting to act under Section 151, Civil P.C. There is authority for this view : see Ajodhya Mahton v. Phul Kuer A.I.R. 1922 Patna 479. Section 151, Civil P.C., cannot be invoked to help a party who has a remedy provided by law and who has failed to take advantage of that remedy within the period of limitation prescribed. In the present case the Court had no power to set aside the dismissal in the exercise of its inherent powers. I therefore set aside the lower Court's order restoring the case to file.