Allahabad High Court
Subash Chand And Anr. vs Smt. Sarjoo Dei on 30 November, 1959
Equivalent citations: AIR1960ALL569, AIR 1960 ALLAHABAD 569
ORDER S.S. Dhavan, J.
1. This is a defendants' application under Section 151 C. P. C., against an order of the learned Munsif, Basti restoring the plaintiff's suit previously dismissed by the court for not carrying out the orders of the court and not filing certain documents.
2. It appears that the plaintiff respondent Srimali Sarjoo Dei filed a suit for the issue of an injunction against the defendant applicant. She obtained an adjournment to file a map. On 23-2-1956, when the case was called up, neither the plaintiff nor her counsel was present. The court passed an order dismissing the suit in these terms :
"23-2-56. Case called. Plaintiff absent. Her counsel also absent. Sri Chet Earn Pandey for defendant. The plaintiff is absent. No steps have been taken. Required map has not been filed. The order of the court has not been complied with. Defendant's counsel is present. At this stage Sri T. K. Shankar present for plaintiff. ORDER Suit dismissed for not filing the map and for not carrying out the order of the court."
3. It further appears from the record that some time before the case was called up, an application was filed on behalf of the plaintiff praying for an adjournment on the ground that the Municipal Board had not delivered the map which was to be filed in the court. This application must have been accepted by the reader as it bears the mark 83/C. Neither the application nor the order sheet in English shows that the court passed any order on it or even considered it, but the order sheet in Hindi contains an entry dated 23-2-1956, indicating that the counsel for the plaintiff turned up after the Court had commenced writing its order of dismissal, and at that stage the application for adjournment was placed before the court.
The entry does not indicate whether the court considered it on merits. In fact the entry is written in deplorably bad and illegible handwriting which was deciphered with very great difficulty with the assistance of the counsel for the parties. On 27-2-1956 the plaintiff moved the court for restoration of the suit. It is described as an application for restoration under Order 9 Rule 9 C. P. C. The learned Judge restored the suit by his order dated 23-4-56 against which this revision has been filed. He took the view that Order 9 Rule 9 C. P. C. did not apply to the present case, but the court had inherent power under Section 151 to restore the suit
4. Mr. K. M. Sinha for the defendant-applicant argued that the order is without jurisdiction as the court had no power to set aside the decree after it had been passed. He contended that the order dismissing the suit was passed under Order 17 Rule 3 C. P. C. --that is to say, on the merits of the case. A large number of authorities were cited by the learned counsel in support of his argument that a case like this is governed by Order 17 Rule 3 and not Rule 2. It is however, not necessary for me to consider these authorities as the learned Munsif himself took the view that his order of dismissal was not passed for default, and there could be no restoration under Order 9 Rule 9 C. P. C. He, however, thought that the court had the inherent power to restore the case and that this was a fit case for its exercise.
5. I agree with the view taken by the learned Munsif.
6. It was held by a Division Bench of this Court (Sulaiman and Niamatuallah, JJ.) in Bhagwan Prasad v. Madan Murari Lal, AIR 1929 All 811, that the court has jurisdiction under Section 151 C. P. C. to restore a suit previously dismissed by it if it thinks that such restoration is necessary in the ends of justice. In Hubraj Singh v. Mst. Rama Dasi Kuer, AIR 1954 All 719, it was held by another Division Bench (Malik C. J. and Gurtu, J.) that the court has inherent power to restore a suit in a case where the plaint was dismissed under Order 7 Rule 11 (e) C. P. C. This was not a case where a decree had been passed, but, all the same, the content of the inherent power of the court was held to include the power to restore a suit.
7. Mr. K.M. Sinha contended that the power to restore a suit must be deemed to have been excluded from the inherent powers of the Court by the specific provisions for the restoration of suits contained in the C. P. C. I do not agree. It is well settled that the Code is not exhaustive; and the specific provisions enabling the court to restore a suit in particular cases do not cover every conceivable type of case where restoration may be desirable in the interests of justice. The inherent power of the court is intended to fill up the gaps between the powers specified in the Code. The very authorities cited by learned counsel in support of his argument Chandra Mohan v. Raghunath Prasad, AIR 1950 All 338 contained the following observations by the Division Bench. "It should be noted that only in rare cases a court can set aside its own judgment under its inherent powers."
Thus the learned Judges conceded that the inherent power includes the power to restore a suit though they were of the opinion that it should be sparingly used.
8. In the present case the power was rightly exercised in my opinion. In his application for adjournment on 23-2-1956 the plaintiff explained that she could not file the map because the Municipal Board had not prepared it. There is nothing in the order dismissing the suit to show that the attention of the learned Munsif was drawn to this explanation or that he considered it before dismissing the suit.
9. Learned counsel contended that an alternative remedy by way of appeal against the decree was available to the plaintiff and the court should not have exercised its inherent power in such a case. I do not agree. The demands of justice require that the trial court itself should recall its previous order which had been passed without considering the plaintiff's explanation and that she be not put to the expense and hazards of an appeal. I see no reason why the plaintiff should be made to pay additional court fee because the trial court passed an order which ought not to have been passed in the first instance.
10. I see no reason to interfere with the discretion of the trial court. The application is rejected with costs. The suit was filed in 1954. The record shall be returned to the trial court with a direction for a very early disposal of the case.