Patna High Court
Camroo Thakur And Ors. vs Basudeo Narayan And Ors. on 19 November, 1966
Equivalent citations: AIR1968PAT48, AIR 1968 PATNA 48
ORDER G.N. Prasad, J.
1. In this application by the defendants of Title Suit No. 37 of 1961, the question for consideration is whether the lower appellate court was justified in reversing the order of the trial court which had declined to restore the suit as applied for by the plaintiff opposite party.
2. In the suit, which was filed on 28-2-1961, an order was made for payment of deficit court-fee. The deficit court-fee not having been paid, the trial court passed an order on 3-2-1964 saying that "the suit is dismissed for default." This was, undoubtedly, not a correctly recorded order. The order should have been that the plaint was rejected for non-payment, of deficit court-fee under Rule 11 of order VII of the Code of Civil Procedure.
3. Be that as it may, the order dated 3-2-1964 was appealable as a decree. But unfortunately, the plaintiff thought fit to file a petition in the trial court labelling it as a petition under Order 9, Rule 9, and Section 151 of the Code of Civil Procedure. The prayer was for restoration of the suit and for hearing the same on merits.
4. The trial court rightly found that Order 9, Rule 9, Code of Civil Procedure, was not attracted, and it directed its attention to the question as to whether the plaintiff could be given any relief under the provisions of Section 151 of the Code of Civil Procedure. The trial court dealt with this question in the following terms: --
"It is an admitted position of law that the inherent power of court can be exercised only in cases in which there is no relief available to the aggrieved parties in the C.P.C., and the grant of relief is essential for the ends of justice, but in cases where other remedies are available in the specific provisions of the C.P.C. the inherent powers of the court cannot be invoked".
The trial court then pointed out that the plaintiff had two remedies open to him: (1) to prefer an appeal against the order dated 3-2-1964 which had the force of a decree, or (2) to have applied for review. Since the plaintiff had failed to avail of either of these two courses, no relief could be given to him under the inherent powers of the court.
5. The application for restoration having failed in the trial court, the plaintiff preferred a miscellaneous appeal to the lower appellate court. The appeal was heard by the second Additional District Judge. The learned Judge recorded in paragraph 7 of his order that it was not disputed that the petition was not maintainable under Order 9, Rule 9, Code of Civil Procedure. But the learned Judge thought that this was a case where the trial court ought to have treated the petition as one for review and ought to have called upon the plaintiff to pay court fee on that footing. Further pointing out that the plaintiff would be left without any other remedy and thereby he would be put to irreparable loss if the suit were not restored, the learned Judge thought that it was a fit case where the order of the learned Munsif should be set aside and the suit be restored for hearing on merits.
6. The order of the learned additional District Judge is wholly without jurisdiction. Once it was conceded that Order 9, Rule 9, Code of Civil Procedure, had no application, the matter could only have been dealt with under Section 151 of the Code If the order of the learned Munsif was one under Section 151 of the Code, then no appeal lay to the learned Judge in the court below.
7. There can be no escape from the position that the order dated 3-2-1964 was appealable as a decree. It is well established that in such a situation, the court cannot resort to its inherent powers under Section 151 of the Code to be in a position to set aside its decree. Therefore, the trial court was right that the plaintiff had no remedy open to him under Section 161 of the Code. The learned Additional District Judge has not correctly appreciated the provisions contained in Section 151 of the Code. The inherent powers of the court can be used for the purpose mentioned in Section 151, and for no other purpose.
The ground of sympathy or hardship cannot justify the exercise of inherent powers of the court. Such powers are to be exercised in the interest of justice or to prevent abuse of the processes of the court. While dealing with the question of interest of justice, the court has not merely to look to the hardship of one- party, it has also to look to the harm that is likely to be suffered by the other party,
8. For the aforesaid reasons the appellate order of the learned Additional District Judge is set aside and the order of the trial court is restored. In the circumstances of the case, there will be no order as to costs.