SOURENDRA NATH MITRA Vs. JATINDRA NATH GHOSE

JUDGEMENT

(1.) This rule is directed against an order passed by Mr. B.K. Pal, Subordinate Judge of Backergunge, on 22 September, 1927. The facts which led up to the passing of the said order, shortly stated, are these : The petitioner in this rule was the defendant in a suit which had been instituted by the opposite party in forma pauperis some time ago. That suit was dismissed for default on 19 May 1926 as neither the plaintiffs nor the defendant appeared. On the same day, an application was made by the plaintiff, the opposite party in this rule under Order 9, Rule 9, Civil P.C. On 14 August 1926 when this application was taken up for hearing, neither the plaintiffs nor their pleader happened to be present in Court and it was dismissed for default at about 12-35 p. m. On the same day, the plaintiffs opposite party filed another application for the restoration of the application under Order 9, Rule 9, Civil P.C, that had been dismissed for default as aforesaid and it is this last-mentioned application which has given rise to the proceedings and the order against which this rule is directed. This application was filed as an application under Order 9, Rule 9 and also under Section 151, Civil P.C. So far as Order 9, Rule 9, Civil P.C, is concerned, it is obvious that it had no application to the case and the learned Subordinate Judge Mr. A.C. Banerji holding that Order 9, Rule 9, had no application whatsoever to the case and expressing the opinion that Section 151 was also inapplicable dismissed the said petition by his order dated 2 October, 1926. On that, we are told, this Court was moved in revision under the provisions of Section 115, Civil P.C, and it ultimately declined to interfere in revision with the order of the learned Subordinate Judge dated 2 October, 1925.

(2.) On 17 December 1926, a further application was made in the Court below by the plaintiffs opposite party headed as one under Order 47, Rule 1 and Section 151, Civil P.C. It was entertained by Mr. A.C. Banerji who had passed the order of 2 October, 1926, and the said learned Judge ordered the issue of notices of the said application upon the present petitioner. This application was ultimately heard by Mr. B.K. Pal and disposed of by him on 22 September, 1927, and it is against this order of Mr. B.K. Pal dated 22 September, 1927, that the present rule is directed. The rule is to show cause why this order should not be set aside as having been passed without jurisdiction. In order to make out that the order was passed without jurisdiction, reference has, in the first place, been made to the fact that an application for revision of the order passed by Mr. A.C. Binerji on 2 October, 1926, was made to this Court and was unsuccessful, the petitioner's contention being that the refusal on the part of this Court to interfere with the said order should be taken as implying an approval of the view of Section 151, Civil P.C, which was expressed by the learned Sub ordinate Judge in that order. We are unable to agree in this contention of the petitioner. There may have been very good reasons why this Court did not feel it necessary to interfere under the provisions of Section 115, Civil P.C, and, simply because the opposite party was unsuccessful in having the order revised by this Court, there was nothing to prevent them from applying under Order 47, Rule 1, Civil P.C, to the lower Court for review of its own order.

(3.) It has next been contended on behalf of the petitioner that the order which Mr. B.K. Pal has passed was passed without jurisdiction, inasmuch as Order 47, Rule 1, Civil P.C, does not apply to a case of this nature. What is said is that the view which Mr. A.C. Banerji took of the provisions of Section 151 of the Code may have been an erroneous view and yet it cannot be said that there was in Mr. A.C. Bancrji's order an error apparent on the face of the record which would justify his successor Mr. B.K. Pal to review the said order. Now, so far as this argument is concerned, two questions would arise for consideration. First of all, whether or not the view which Mr. A. C. Banerji took of the scope of Section 151, Civil P.C, was correct and secondly, whether, if that view was erroneous, it can be said "that it was an error apparent on the face of the record within the meaning of Order 47, Rule 1, Civil P.C. In order to show that the view taken by Mr. A.C. Banerji was in point of fact, correct, reference has been made on behalf of the petitioner to the ease of Shib Prahash V/s. Jhinguria A.I.R. 1924 All. 446. That case, however, is clearly distinguishable because there the party who had made the application under Section 151, Civil P.C, had neglected to avail himself of another remedy which was available to him under the Code and, after the time during which such remedy could be pursued had elapsed, made the application under Section 151. In that case, it was held by the learned Judge that, although it was frequently desirable to apply the provisions of S, 151, Civil P.C, to a case in respect of which the Civil Procedure Code is silent, the following qualification should always be applied to cases of this nature, namely, that where the applicant's laxity resulted in a neglect on his part to avail of the provisions of the Code itself, the applicant could not get the benefit of Section 151 of .the Code. The facts of that case are entirely distinguishable from the facts of the case before us. On the other hand, as regards the true scope of Section 151, Civil P.C, reference may be made to one of the recent decisions of this Court, namely, the decision in the case of Sarat Krishna V/s. Bisseswar Mitra , In that case, it has been said that in order to meet cases in respect of which 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 the Courts exist, the provisions of Section 151 may and should be resorted to. In support of the proposition enunciated as aforesaid, several other decisions have been referred to in that case and these decisions amply support the said proposition. In our opinion, therefore, the learned Subordinate Judge Mr. A.C. Banerji took a wrong view of Section 151, Civil P.C, and, acting upon that erroneous view, he refused to exercise a jurisdiction which the law vested in him and which he might have exercised if a proper case had been made out calling for action under that section.