Calcutta High Court
Lachman Singh vs Sm. Hasi Rani Singh And Ors. on 25 January, 1979
Equivalent citations: AIR1979CAL196, AIR 1979 CALCUTTA 196, (1979) 1 CALLJ 469
ORDER Jyotirmoyee Nag, J.
1. This Rule is directed against an order passed by the learned Munsif 1st Court at Howrah in Title Suit No. 237 of 1964 being Order No. 122 dated 10-9-1973.
2. The plaintiff was ordered by the Court to deposit Commissioner's fees by Order Nos. 91 and 92 dated 18-3-1971 and 25-3-1971 and another chance was given to the plaintiff to deposit the same by Order No. 114 dated 26-4-1973 again by Order Nos. 114 and 115. Thereafter, in spite of repeated adjournment being given to the plaintiff on his own applications, on one plea or the other the plaintiff failed to carry out the court's order and ultimately by Order 116 dated 2-5-1973 the plaintiff's suit was dismissed. Against this order the plaintiff made an application under Section 151 of the C.P.C. to set aside the order of dismissal to restore the suit That application for restoration was rejected by the learned Munsiff. Against that order, Order No. 122 dated 10-9-1973 the plaintiff has come up in revision under Section 151 of the Code of Civil Procedure. A preliminary objection has been taken by the learned Advocate for the opposite party, his contention is that the plaintiff has not come up against Order No. 116 dated 21-5-1973 whereby the suit was dismissed. Therefore, Order 116 stands and the application under Section 151 C.P.C. against Order No. 122 is not maintainable. As the learned Munsif failed to exercise his inherent jurisdiction to restore the suit the plaintiff having other remedies such as filing an appeal against the order of dismissal of the suit alternatively by filing an application under provisions of Order 9, Rule 9 for restoration of the suit he having failed to avail of either of these remedies cannot invoke the inherent jurisdiction of the Court to restore the suit and no revision lies against the non-exercise of the Court's inherent power.
3. On the other hand, the learned Advocate for the petitioner has contended before me that for non-compliance with the Court's order regarding the deposit of the Commissioner's fees it is not within the jurisdiction of the Court to dismiss the suit. That can only be done wherever it is so provided under the Code of Civil Procedure and ha has referred to several provisions of the C.P.C. such as Order No. 11 Rule 21.
4. In this connection the learned Advocate for the petitioner has cited a case (FB). That was a case under Order 21, Rule 90. The sale was sought to be set aside but the application was dismissed for default and an application under Section 151, C.P.C. was made to set aside the order of dismissal though the remedy by way of appeal was available to the petitioner in that case. It was held that the remedy by way of appeal was illusory as the appellate Court would have to go by the record to determine whether the appellant was prevented by sufficient cause from appearing before the trial Court. It was obvious that the appellate court would have no material on record to render a decision on the sufficiency of the cause and can give no relief to the appellant That was a case for correction of illegal entries in the finally published records of rights. As there is specific provision for rectification of records . under Section 44(2A), recourse to the inherent power for rectification of records was held to be not justified. None of these cases have application to the facts of the present case. It will be seen however that Order 9 Rule 8 has no application to the facts of the present case. The suit was not dismissed for non-appearance of the plaintiff but for failure to deposit the balance of the Commissioner's fees as ordered by the Court. The particulars having failed to comply with the Court's order, the Court in exercise of its inherent power dismissed the suit and this was not unjustified.
5. It was urged on behalf of the petitioner relying upon a decision reported in (1906) 10 Cal WN 234 and also in AIR 1925 Cal 57 that the proper remedy in such a case is to saddle the plaintiff with the costs equivalent to the deposit ordered to be made as Commissioner's fees upon the application of the Commissioner. The Commissioner could realise the amount by executing the decree. Therefore, it could not be said that there was no remedy available for realisation of the Commissioner's fees. The decision in that case does not answer the question whether the court can dismiss the suit of the plaintiff for non-compliance of its order. If the arguments of the petitioners prevail, then it will open up a floodgate for flouting the Court's orders with impunity.
6. Such a situation cannot be contemplated and, therefore, I must hold that the court can dismiss a suit for non-compliance with the Court's orders under its inherent powers (as) was done in the present case.
7. Accordingly, I uphold the order passed by the learned Munsif and discharge the Rule.