ATMARAMSAO Vs. RAMBHAROS

JUDGEMENT

(1.) 1. This is an application for revision of an older by the lower Court restoring to the file a suit dismissed for default. The lower Court has found that there was no sufficient cause for the nonappearance of the plaintiffs, but has restored the suit to file in exercise of the-inherent power of the Court recognized by Section 151, Civil P.C. It has been urged of behalf of the non-applicants that the lower Court's finding that there was no sufficient cause is wrong. The plaint had been rejected by the lower Court as insufficiently stamped. On appeal the order rejecting the plaint was set aside and the case remanded for trial. It was received by the lower Court on 22nd August 1928 and 10th September 1928 was fixed for hearing. The plaintiffs' pleader was present on 22nd August 1928 and has initialled the order sheet but does not appear to have informed the plaintiffs of the date fixed for hearing and on 10th September 1928 he appeared and said that he had no instructions. Plaintiff 1's reason for not appearing is alleged to be that ho was informed by the appellate Court that a notice of the date fixed would be issued to him. His evidence is to the effect that it was the Court's reader that gave him this information. That evidence has been disbelieved by the lower Court and in my opinion its decision is correct. Plaintiff 1 on his own evidence did not wait to receive a notice but made enquiries in the lower Court about eight days after the order of remand and found that the record had not been received back. His evidence as to the information given him by the reader of the appellate Court thus does not appear to be correct; it is supported by the evidence of one witness only, who professes ho have heard what was said from outside the Courtroom, and the reader has not been examined. The plaintiffs appear simply to have been dilatory in making the second enquiry as to the date for hearing. As I agree with the lower Court in rejecting the evidence that plaintiff 1 was told by the reader that he would receive a notice, I need not consider what the effect of such information being given would be.

(2.) THE point raised on behalf of the applicant-respondent is that the lower Court can only restore a suit to the file under Order 9, Rule 9, that is, when sufficien cause for non-appearance has been shown and that when sufficient cause has not been shown, the Court cannot restore a suit in exercise of its inherent powers. There has been a divergence of opinion among the High Courts on this question. In Lalta Prasad v. Ram Karan [1912] 34 All. 426 it has been held that Order 9, Rule 9, merely makes it compulsory to restore a suit when sufficient cause has been shown, but leaves the Court discretion to restore in other cases by virtue of its inherent powers. The same view has been taken in Bilasrai Laxminarayan v. Cursondas Damodardas [1920] 44 Bom. 82. In Ram Sarup v. Gaya Prasad , however, it has been held that a Court has no jurisdiction to set aside an ex parte decree except under Order 9, Rule 13, that is, when sufficient cause has been shown, and that there is no inherent jurisdiction to do so. The same view has been taken in Ajodhya Mahton v. Mt. Phul Koer A.I.R. 1922 Pat. 479 and in a case of this Court Vishwanath v. Vaijnath A.I.R. 1925 Nag. 356. Another decision of this Court Wasudeo v. Inayat Hussain A.I.R. 1926 Nag. 409 has been cited in support of the view that the Court has inherent power to restore a suit dismissed for default. That proposition appears in the head note of the decision, as it appears in an unauthorized series of reports, but in the body of the order it will be found that in the opinion of the Court sufficient cause had been shown for non-appearance. Again in Sudananda Moral v. Rakhal Sana .it was held that when no sufficient cause for review was made out, the Court could not, by virtue of its inherent powers, assume a jurisdiction forbidden by the legislature. In Motilal v. Ujjar Singh A.I.R. 1928 P.C. 137 it has been held by the Privy Council that under Order 34, Rule 3(2), extension of time for payment of the sum due under a decree for foreclosure can only be granted for good cause shown. Their Lordships do not expressly exclude the exercise of the Court's inherent powers in such a case, but they clearly do so by necessary implication.

(3.) IT has been argued on behalf of the non-applicants that there can be no revision in this particular case and reference has been made to Krishna v. Bhau A.I.R. 1929 Bom. 198, in which it was held that the High Court will not interfere in revision with an order passed by the lower Court following one out of two divergent lines of authorities. That case is merely a particular application of the view that provided a Court has jurisdiction to entertain a case, even if it decides it wrongly, it is not a ground for interference under Section 115, Civil P.C. Here however, the whole question is whether the lower Court had or had not jurisdiction to make the order that it did make. In my opinion it had not jurisdiction and this is, therefore, a proper case for revision. I set aside the order of the lower Court restoring the suit to file and direct that the suit be dismissed with costs. The non-applicants will bear the costs of the applicant in this Court. 1 fix pleader's fee at Rs. 50.