Calcutta High Court
Dharma Narayan Barman vs Upendra Nath Mondal And Others on 13 December, 1993
Equivalent citations: AIR1994CAL231, AIR 1994 CALCUTTA 231, (1994) 2 HINDULR 570
ORDER
1. This revisional application is directed against an order dated 29-6-91, passed by the Id. Asstt. District Judge, Alipurdwar in Misc. Appeal No. 7 of 1989, affirming the order dated 31-8-89, passed by the Munsif, Alipurdwar in Misc. Case No. 30 of 1987.
2. This case is "Much Ado About Nothing" when facts are briefly stated: the petitioner sought for pre-emption of the property following pre-emption case No. 58 of 1978, which sprang upon an application fixing 11-6-1987 for steps. It has been highlighted by the petitioner in his application that he could not attend the Court for his illness and the case No. 53 of 1978, however, stood dismissed for default. Thereupon, a Misc. Case was started under Order 9, Rule 9 read with Section 51 giving an account of non-appearance along with a Medical Certificate. The Id. Court of the first instance, however, did not agree to accept the claim of the petitioner as it was untenable in law and the same having been rejected by him on 31-8-89, a Misc. Appeal followed which had the same fate as that of the Misc. Case when this revision.
3. To begin with the viability of the orders, I could only say that there are clearing inconsistencies about the approach to the case by both the Id. Court belows. Both the Id. Courts below took hyper technical attitude in dismissing the claim of the petitioner. Therefore, in the background of such approach I proceed from the premises as on 11-6-1987.
4. To deal with that aspect of the matter, it is needless to repeat that 11-6-1987 was the date fixed for taking steps by the petitioner who suffered dismissal of the Misc. Case. In fact, the case was not fixed on the Board for pre-emptory hearing as glaring from the record, but I am not unmindful by the reason of dismissal of the Misc. Case that the petitioner filed an application for restoration under Order 9, Rule 9 read with Section 151, C.P.C. The nature of dismissal does not bring the case in any view within the fold of Order 9, Rule 9 as there was no hearing fixed on 11-6-87 excepting the steps to be taken by the petitioner. Misquotation of Sections, Rules and Orders in any application cannot snap of the right of a party, if you could satisfy the Court that the grounds for relief exist. The application, the petitioner preferred before the Id. Court below was a composite application where scope of exercise of inherent power did not cliff in reality.
5. The Id. Court below, in my view, could exercise inherent power to do a complete justice between the parties when the matter was not presumably covered by Order 9 Rule 9. To be a little bit elaborate that the Courts were not powerless to exercise jurisdiction in absence of specific provision, the object being to meet the necessities of the case. Here, the date was fixed for taking steps which cannot be equated with the hearing of the case. Therefore, the inherent power could have been exercised to repair the damage or to recoup the loss occasioned to the petitioner without prejudice to the adversaries. It is trite saying that the inherent power has its roots in necessity and its breadth is coextensive with the necessity, It is not a new concept of law but an old concept which never lost its force since there are decisions in legion,
6. After adverting to the fact, in my view, it would have been legitimate to direct the petitioner to show cause as to why the Misc. Case should not be dismissed by the reason of non-compliance with the Court's order. But the Id. court below most unfortunately dismissed the case strainghtway and the jurisdiction thus exercised by the Id. court below in dismissing the application is not proper. It is but the technicalities which weighed with the court among which the limitation was one. The limitation cannot survive in the face of an application under Section 151 C.P.C., 1908. It is the stare decisis that the language of Section 151 of the Code itself makes it clear that where it is necessary to exercise inherent power for the ends of justice or to prevent the abuse of the process of the court, no limitation can be put on that power. But where, as here, a judicial order when made ex parte, it is implied that the court will reopen it on the application of the party interested and the court has inherent power to do so. Therefore, I do not agree with the orders passed by the Id. courts below,
7. Accordingly, they are set aside since the decisions rendered militate against the provisions of the statute and for fair adjudication of the dispute, I remit the matter to the court of the first instance for decision afresh and to arrive at a conclusion as to whether any relief could be granted independent of Order 9, Rule 9 C.P.C., but under Section 151 of the Code of Civil Procedure. The order dated 29-6-1991, passed by the Asstt. Dist. Judge in Misc. Appeal No. 7 of 1989 and order dated 31-8-1989 passed in Misc. No. 38 of 1987, by the Id. Munsif are, therefore, set aside.
8. The revisional application is accordingly disposed of with the above observations.
9. Order accordingly.