Patna High Court
Somar Bhuiya And Ors. vs Kapil Kumar Gautam And Ors. on 3 January, 1974
Equivalent citations: AIR1974PAT289, AIR 1974 PATNA 289
JUDGMENT H.L. Agarwal, J.
1. This application in revision is by the defendants against an order restoring a miscellaneous case filed by the plaintiffs, which was dismissed for default in the following circumstances. The plaintiffs instituted Title Suit No. 12 of 1966, which was ultimately dismissed for default, in the absence of the defendants on 6th May, 1971. On the same day an application under Order 9, Rule 4 of the Code of Civil Procedure was filed, which was registered as Misc. Case No. 1 of 1971. This miscellaneous case was also dismissed for default on the 31st July, 1971. Thereafter an application under Section 151 of the Code of Civil Procedure (hereinafter to be referred to as 'the Code') was filed by the plaintiffs on the 21st March, 1972, obviously much beyond the period of thirty days. This application was registered as Misc. Case No. 1 of 1972. By the impugned order the learned Subordinate Judge has allowed the application and has ordered for restoration' of Miscellaneous Case No. 1 of 1971 (wrongly stated in the certified copy of the order as Miscellaneous Case No. 1 of 1972).
2. It appears that in the Court below only one question was raised, namely, maintainability of an application under Section 151 of the Code. The question of limitation does not appear to have been urged at that stage. The question of maintainability was decided in favour of the plaintiffs opposite party by the learned Additional Subordinate Judge by putting reliance upon a decision of Mr. Justice Untwalia (now the Hoo'ble C. J.) in the case of Chandrika Singh v. Parsidh Narayan Singh, AIR 1960 Pat 504 in which it was held that if an application under Order 9, Rule 4 of the Code was dismissed for default, an application under Section 151 of the Code for cancelling the order of dismissal of such an application and restoration of the same was competent.
3. In this court Mr. Kumar Bahadur appearing for the petitioners has urged only one question, namely the question of limita-
tion and contended that the application filed under Section 151 of the Code was barred by limitation. Counsel put reliance upon Article 122 of the new Limitation Act which reads as follows;
"To restore a suit or appeal or application for review or revi sion dismissed for default of appearance or for want of pro. sedition or for failure to pay costs of service of process or furnish security for costs.
Thirty days.
The date of dismiss till"
It is manifest from the provision of Article 122 that an application under Section 151 of the Code for setting aside an order of dismissal for default of an application filed under Order 9, Rule 9 of the Code for restoration of a suit is not covered by this Article. It applies only to the following descriptions of the application:
(a) An application to restore a suit,
(b) An application to restore an appeal, and
(c) An application for review or revision dismissed for default of appearance, etc. Evidently, Miscellaneous Case No. 1 of 1971 filed under Order 9, Rule 4 of the Code was an application filed by the plaintiffs for restoration of the title suit which was dismissed for default of their appearance and was governed by this Article. But the provision of this Article being very specific, it cannot be construed to apply to an application filed under Section 151 of the Code for exercising the inherent jurisdiction of the Court for restoration of such an application.
4. Mr. Lakshman Saran Sinha appearing for the plaintiffs opposite party, on the contrary, submitted that no specific period was prescribed in any of the Articles under the third division of the Limitation Act and therefore the residuary Article, namely. Article 137 must apply to the application filed under Section 151 of the Code.
5. No authority of this Court was cited at the bar before the in support of the contentions raised on behalf of the respective parties. In a very much similar circumstances a question was raised in the Madhya Pradesh High Court in the case of Pooranchand Mulchand v. Komalchand Beni Prasad, ATR 1962 Madh Pra 64 and after considering various authorities of the different High Courts a Bench of that Court came to the conclusion that an application made to invoke the inherent powers of the Court under Section 151 is not an application under the Code and, therefore, Article 163 (incorporated under Article 122 of the new Act) has no applicability. It was also clearly laid down that Article 163 prescribed limitation for an application to set aside the dismissal for default of a suit, and. not for an application to set aside the dismissal for default of an application for restoration of a suit under Order 9. Rule 9 of the Code. Therefore, an (application invoking the inherent powers of the Court under Section 151 was not covered by Article 181 (new Article 137) or any other Article of the Limitation Act. I respectfully agree with the views expressed in the said decision. After coming to the above conclusion, their Lordships, however, further observed that though there was no limitation for invoking the inherent powers of the Court under Section 151, a party invoking that jurisdiction must be diligent and not guilty of any laches. I may also refer to a Bench decision of this Court in the case of Mrs. Minnie Lal v. Mahadeo Lall, AIR 1949 Pat 112 which lends support to the above view expressed by me. In this case, a First Appeal was dismissed on the failure of the appellant to deposit the printing cost on 26-11-1947. An application under Order 41, Rule 19 of the Code was thereupon made for setting aside the order of dismissal of the First Appeal on certain grounds on 20-1-1948. A question of limitation was raised on behalf of the respondents. It was ultimately held that the application was not an application under Order 41, Rule 19 but was under Section 151 of the Code which preserves the inherent power of the Court to act as ex debito justitme. It has been clearly held in the said decision that when a Court is called upon to exercise its inherent power, that power is not affected by the law of limitation as the law of limitation relates to the action of the parties but not to the action of the Court and the mere fact that one of the parties makes an application asking the Court to exercise that power, will not render the action of the Court subject to the rule of limitation.
6. From the discussions made above, I do not feel any hesitation in coming to the conclusion that no period of limitation was applicable to the application made by the plaintiffs opposite party under Section 151 of the Code. But at the same time, taking support from the views expressed in Pooran-chand's case AIR 1962 Madh Pra 64 (supra), I also feel inclined to take the view that although no period of limitation is prescribed for such an application and a party is entitled to ask the Court for invoking its inherent jurisdiction, he must be diligent and not guilty of any laches and make an unreasonable delay in approaching the Court, otherwise it is likely to create great injustice and harassment to his adversary. I am also supported in the above views by a Bench decision of the Calcutta High Court in the case of Biswanath v. Amar Nath, AIR 1962 Cal 110. In this case, however, the application under Section 151 of the Code was made only after a period of about seven weeks which does not appear to be unreasonably belated. In any view, had the defendants petitioners raised a question of limitation in the trial Court, the plaintiffs opposite party might have been called upon to explain the circumstances, if any, for the alleged late filing of the application. The question, therefore, not having been raised in the court below, it is not open to the petitioners to urge the same in this Court.
7. This application, therefore, has got no merit and the learned Additional Subordinate Judge has committed no error of jurisdiction. This application is, accordingly dismissed, but I shall make no order as to costs.