Karnataka High Court
Maruthi Enterprises vs Muniyanjamma And Ors. on 13 January, 1986
Equivalent citations: AIR1987KANT264, AIR 1987 KARNATAKA 264, ILR 1986 KANT 872
ORDER
1. This is a revision by the plaintiffs against the order dated 19-1-1983 passed by the IX Additional City Civil Judge, Bangalore City, in O.S. No. 2874 of 1982 rejecting I.A. No. I filed to recall the order dated 1-12-1982.
2. The plaintiffs had filed a suit in O. S. No. 2874 of 1982 in the City Civil Court for specific performance of an agreement dated 3-7-1978 and a further agreement dated 19-51979.
3. The plaintiffs paid a court-fee of Rs. 100/- on 12-4-1982 when the suit was filed. The office put up a note dated 2-6-1982 to the effect that the plaintiffs had not paid the court-fee and that the court-fee paid was deficit. The matter was posted before the Court on 1-10-1982 for judicial determination. It was adjourned to 8-10-1982. On 8-10-1982 the court was on leave and hence it was adjourned to 8-11-1982. On 8-11-1982 an application under S. 148 C.P.C. was filed by the plaintiffs seeking three months' time to pay the additional court-fee of Rs. 14,900/-. The court passed an order on 8-11-1982 granting time till 1-12-1982 to pay the deficit court-fee. On 1- 12-1982 the plaintiffs and their counsel were absent and the deficit court-fee was not paid notwithstanding grant of time. Hence the court rejected the plaint.
4. On 1-1-1983 I.A.No. 1 was filed for extension of time by recalling the order dated 1-12-1982. The court below rejected the application to recall the order. Hence the revision by the plaintiffs.
5. It becomes crystal clear from the above narration of facts that the suit as initially filed suffered from non-payment of necessary court-fee. The office itself put up a note that the court-fee paid is deficit. On 1-10-1982 when the matter was placed before the Court it was adjourned to 8-10-1982. On 8-10-1982 the court was on leave and it was adjourned to 8-11-1982. On 8-11-1982 the application filed by the plaintiffs seeking 3 months' time to pay the deficit court-fee came up before the court for consideration and the court granted time only till 1-12-1982 to pay the deficit court-fee. Therefore these circumstances would go to show that the court below had granted some time to pay the deficit court-fee though the time granted might be shorter than the time prayed for by the plaintiffs. It is not as if the court below rejected the plaintiffs' prayer for payment of the deficit court-fee without giving any time. The plaintiff's prayer to pay the deficit court fee was granted.
6. After the plaint was rejected on 1-121982 the plaintiffs filed this application on I1-1983 under S. 151 C.P.C. to recall the order after depositing the entire court-fee.
7. Now the question is whether the order, on such an application I.A.No. 1 to recall the order rejecting the plaint, can be recalled by the court which rejected the plaint itself.
8. The learned counsel Shri Shivarma cited Balararn Naik v. Krushna Kumari, . It was a case where the plaint was rejected on 12-7-1973 for nonpayment of the deficit court-fee. After the rejection of the plaint, the plaintiffs filed an application under S. 151 C.P.C. for recalling the order dated 12-7-1973 and to permit them to pay the deficit court-fee. The Orissa High Court held that an application under See. 151 C.P.C. was competent and maintainable and accordingly it set aside the order passed by the trial court refusing to exercise the jurisdiction under S. 151 C.P.C.
9. Then he placed before me another decision reported in Damodar Prasad v. Aditya Maharaj, . The Patna High Court held as: -
"A plaint rejected for non-payment of court-: fee can be restored on application under O. 9 R. 4 or Sec. 151, as well as on review of the order of rejection. The order allowing restoration under O. 9 R. 4 or Sec. 151 C.P.C. can be deemed to be one under O. 47 R. I C.P.C. as amended by Patna High Court."
10. Both these decisions have not considered the effect of a remedy available to the party. The learned author Shri Mulla in his C.P.C. 14th Edition on page 787 has 'stated as: -
"Inherent jurisdiction must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be invoked. Such provisions need not be express, they may be implied or even implicit from the very nature of the provisions made for the contingencies to which they relate. Accordingly, where certain orders are passed in the suit and the suit is thereafter disposed of, an application under this Section challenging those orders as being without jurisdiction and for restoration of the suit is incompetent, there being a specific remedy under the Code by way of an appeal or review. It is only when, there is no clear provision in the Civil Procedure Code that inherent jurisdiction can be invoked. In such a case the court may devise a procedure which would be permissible under the law for the ends of justice. In Ram Chand and Sons Sugar Mills Private Ltd. v. Kanhayalal Bhargava, the Supreme Court in this connection observed that the inherent power of the Court "is in addition to and complementary to the powers expressly conferred under the Civil Procedure Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with any of the powers expressly or: by necessary implication conferred by the,' other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of See. 151 of the Code, they do not control the undoubted power of the court to make a suitable order to prevent the abuse of the process of the Court." Thus, inherent power would not include a power similar to the power of revision under Sec. 115 Civil Procedure Code, even as to cases to which that Section is not applicable. Similarly, in view of the express provision in Order 37, Rule 4 for setting aside a decree passed under that Order an application to do so under this section would be untenable. Nor can this section be resorted to, to by-pas& Order 1 Rule 10 when an application under that rule has been rejected. If relief can properly be obtained in a separate suit, there is no justification for invoking Sec. 151, and the Court will not in its inherent jurisdiction amend a consent decree on the ground of fraud; unless the fraud is a fraud upon the Court, or set aside a consent decree on the ground of coercion, there being a suitable remedy by way of a suit. A Court cannot make use of the special provisions of this section where the applicant has his remedy provided elsewhere in the Code and has neglected to avail himself of it."
11. It has been laid down in H. J. Dorairajv. Viswanatha Rupa and Co., as:-
"Any proceeding before a court has to be regulated by the procedure prescribed in that behalf and even if a particular order or a decree is said to be a nullity, for obtaining relief based upon that position, the procedure prescribed by law will have to be followed. The proper remedy is to appeal against those orders or to approach the Court for review."
12. The rejection of a plaint for nonpayment of the deficit court-fee during the time granted by the Court for payment of the deficit court-fee, would amount to a decree within the meaning of S. 2(2) C.P.C. If it is so, then the order rejecting the plaint is appealable. When the Code has made a specific provision for preferring of an appeal, it would be idle, in my opinion, to resort to S. 151 C.P.C. If the Code has not made any provision for preferring of an appeal against the rejection of the plaint for non-payment of the deficit court-fee, the Court can (could) exercise its inherent power under S. 151 C.P.C. The exercise of the inherent power under S. 151 C.P.C. by the Court can be resorted to only when there is no other remedy available to the party. When the law has provided for an appeal against the order rejecting the plaint, the Court would not be justified in invoking its inherent jurisdiction under S. 151 C.P.C. In this case though the plaintiffs sought for 3 month's time to pay the court-fee, the court had granted time till 1-12-1982 to pay the court-fee. It is only on I12-1982 the plaint was rejected for nonpayment of the deficit court-fee. Therefore, it is not competent for the court to resort to S. 151 C.P.C. and recall the said order rejecting the plaint even though the grounds made out for non-payment of the court-fee might be satisfactory or may be of an extraordinary nature.
13. The learned counsel Shri Shivanna placed before me Prem Narain v. Vishnu Exchange Charitable Trust,' . The facts in the said case were as:-
"He was directed to pay deficit court-fees to the tune of Rs. 1,904/-. The appellant asked for time to pay the deficit court-fees. The respondents contested this request. The learned Jt4dge by his order dated October 23, 1981, rejected this very reasonable request and also rejected the prayer for extension of time for depositing the deficit court-fees. The appellant carried the matter by way of Civil Revision Petition No. 224 of 1982 to the High Court of Delhi. The learned Judge found it difficult to interfere with the order in exercise of the revisional jurisdiction. Hence this appeal by special leave.
We are satisfied that the approach of the teamed trial Judge was incorrect and we also find it difficult to appreciate how the High Court declined to interfere with the very reasonable request of the appellant. We accordingly allow this appeal and grant four weeks' time to the appellant to pay the deficit court-fees."
Therefore it becomes clear that the matter which was taken to the High Court was only against the order rejecting the plaintiffs prayer to extent the time for the payment of the court-fee. It was not a case where the plaint was rejected for non-payment of the court fee. Therefore the said Supreme Court decision will not help the learned counsel for the revision petitioners.
14. I fully appreciate the argument of the learned counsel Shri Shivanna that the courts should not stand on technicalities and thereby deny justice to the parties. I do not even for a moment doubt the correctness of the submission made by him. But in this case if the court had rejected his prayer for extending the time to pay the deficit court-fee, I would have definitely stepped in and set aside the order refusing to grant the extension and would have given him time to pay the deficit court-fee. But, as already stated above, when the Civil Procedure Code has provided for the remedy of an appeal against the rejection of the plaint it, in my opinion, would not be open to the court to have recourse to the inherent power under S. 151 C.P.C. and recall the order of rejecting the plaint. If such requests are to be granted, then the remedy provided-by the Civil Procedure Code for appeal would be meaningless.
15. Then the question would arise as to why an application of the present nature should not be treated as a review application under O. 47 R. I C.P.C. The application as filed is not one under O. 47 R. I C. P.C. and it does not satisfy any one of the ingredients laid down by O. 47 R. 1 C.P.C. O. 47 R. I C.P.C. reads as:-
"Application for review of judgment:-
(1)Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred;
(b)
(c) by a decree or order from which no appeal is allowed, or
(d)
(e) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the- record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
(f) Therefore if the review jurisdiction is to be exercised, then the following ingredients must be satisfied:-
(1) from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge; or (2) could not be produced by him at the time when the decree was passed or order made, or (3) on account of some mistake or error apparent on the face of the record; or (4) for any other sufficient reason;
Unless any one of these ingredients is satisfied, it would not be open for the court to review the judgment or order passed by it. The words "any other sufficient reason" mentioned in O. 41 R. l(c) C.P.C. will have to be read ejusdem generis with the previous requirements or ingredients laid down. Therefore it would not be proper for the court to treat this application as an application for review under O. 47 R. 1 C.P.C. Though the Orissa and Patna High Courts have held that such an application could be treated as application under O. 47 R. 1 C.P.C. I with due respect to the Judges, cannot fall in line with their opinion because it would run contrary to the express provisions contained in O. 47 R. 1 C.P.C.
16. The Courts cannot act in a dictatorial manner. The courts are bound to follow the law passed by the Legislatures. If the courts were to ignore the provisions of law and were to do something by not following the: provisions of law, then the very rule of law would come into ridicule. Justice that has to be done by the courts will have to be in consonance with the law. If the powers of the courts are to be unbridled then the provisions of law are not necessary at all. Therefore under the guise of doing justice, the court would not be justified in ignoring the specific provisions and the remedies created by law itself.
17. As already stated above, the rejection of the plaint would amount to a decree within the meaning of S. 2(2) C.P.C. An appeal is provided against the decree. If the plaintiff does not pursue the remedy of appeal, he cannot ask the court to exercise its jurisdiction under S. 151 C.P.C.
18. Further Order 7 Rule 13 C.P.C. reads as:-
"The rejection of the plaint on any one of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
If it is so, the rejection of the plaint ordered by the court below on 1-12-1982 did not preclude him from filing a fresh suit after, paying the full court-fee.
19. The learned counsel Shri Shivanna urged that the law of limitation would preclude! him from filing a fresh suit. If he has allowed the things to drift in their own way, he cannot complain that the law of limitation barred his remedy.
2O. Therefore, in view of these circumstances, the order passed by the court below refusing to recall the order, cannot be interfered with.
21. Thus, the revision is dismissed.
22. No costs in this revision.
23. Revision dismissed.