Delhi High Court
Hukam Chand vs Delux Finance & Chit Fund (P) Ltd. on 31 July, 1973
Equivalent citations: 10(1974)DLT88, 1973RLR644
JUDGMENT B.C. Misra, J.
(1) In this revision, two questions arise for determination, namely, (1) where a petition under section 20 of the Arbitration Act has been dismissed in default of appearance and an application filed for its restoration is also dismissed in default of appearance, whether or not a further application for restoring the previous application for restoration would be maintainable under the law and (2) whether the impugned order of the Court below allowing such second application suffers from a legal or jurisdictional infirmity.
(2) The facts giving rise to the revision are that the respondent herein filed an application under section 20 of the Arbitration Act in the Court of a Subordinate Judge 1st Class, Delhi which was, as required by sub-section (2) of section 20 of the Act, numbered and registered as a suit. The same was dismissed on 24th April, 1967 in default of appearance under Order 9, Rule 8, of the Code of Civil procedure. On the same date, the respondent filed an application under Order 9, Rule 9 of the Code for restoration of the main petition. Notice of the said application was issued, but it appears that during its pendency, some proceedings for substitution of legal representatives were initiated, but eventually on 17th January, 1968, the said application for restoration was itself dismissed in default of appearance of the respondent- company herein and its counsel. The respondent then filed another application on 14th February, 1968 purporting to be under Order 9. Rule 9 and section 151 of the Code of Civil Procedure for restoration of the first application for restoration which had been dismissed on 17th January, 1968. The ground on which restoration was sought in the second application was that the counsel had made a wrong entry by mistake in his diary and so the respondent and its counsel were prevented by a sufficient cause from not appearing on 17th January, 1968 when the application was dismissed. The Court below recorded the evidence and believed the counsel for the respondent, Mr. K. R. Chawla, who had given evidence in the case. The Court found there was sufficient ground for restoration of the application and consequently it allowed it on payment of Rs. 30.00 as costs by order dated 8th April, 1970 which has been challenged in the present revision. One of the objections raised by the petitioners before the Court below, and which forms the subject-matter of revision, was that the application itself was not maintainable.
(3) The revision was admitted and it came up for hearing before one of us (Tatachari, J.) who heard the contention of the counsel for the petitioners that the application was not maintainable under any provision of law and noticed the divergence of opinion amongst the various High Courts on the question whether such a second application was competent under Order 9, Rule 9 of the Code of Civil Procedure or under section 151 of the Code or not at all. The case has, therefore, been placed before the Division Bench and we have heard the learned, counsel for the parties at a considerable length.
(4) The decisions of the High Courts disclose three divergent views, firstly that the order passed on the first application is appealable under clause (c) or for that matter clause (d) of rule 1 of Order 43 of the Code of Civil Procedure and since the same provides a specific remedy, a second application for restoration would not be maintainable either under Order 9, Rule 9 read with section 141 or under section 151 of the Code. This is the view propounded by the High Court of Patna in Doma Choudhary vs. Ram Naresh Lal, . The second view is that the second application is maintainable under Order 9, Rule 9 of the Code itself by the force of section 141. This view has been taken by the High Court of Andhra Pradesh in Raja Appa Ro vs. Veera Raghava, A.I.R. 1966 Andhra Pradesh 263, where the aforesaid view of the High Court of Patna did not find favor. The third view is that section 141 of the Code does not apply to such applications and so it is not maintainable under Order 9, Rule 9 of the Code but only under section 151 of the Code. The strongest support for this view is found in a Division Bench authority of the High Court of Bombay in Laxmi Investment Company vs. Tarachand, .
(5) The High Court of Patna in its Full Bench decision in Doma Choudhary's case (supra) observed that an appeal lies under clause (c) or (d) of rule (1) of Order 43 from an order rejecting for default an application under Rule 9 or Rule 13 of Order 9, because on a plain reading of the aforesaid provision for appeal, there was no ground for discriminating between rejection of an application on merits and its rejection for default and that a party could not be held to have no right of appeal simply because he was not likely to obtain relief unless he satisfied the appellate Court by affidavits or otherwise that, on the facts of the case, the dismissal of the application filed by him under Rule 9 or Rule 13 of Order 9 was wrong or unjustified. The Court, therefore, came to the conclusion that the inherent power of the Court preserved under section 151 of the Code was not available for restoring an application for restoration dismissed in default of appearance. This authority has been followed by the High Court of Orissa in Udayanath Panda vs. Baikunthanath Routra , while its weight has been shaken by a decision of the same High Court reported as Mahendra Lal vs. Rekhia, , where the Court, after taking into consideration a number to authorities held that there was force in the submission of the counsel before the learned Judge that in view of the authority of the Supreme Court in Manohar Lal Chopra Rai Bahadur Rao Raja Seth Hiralal, , the aforesaid decision of the Full Bench in Doma Choudhary's case was no longer a good law. Another learned Single Judge of the same High Court in Baijnath Prasad v. Mansa Mahto, , without referring to the aforesaid Full Bench decision, held that the Court had inherent power to restore a suit to its file where it had been wrongly dismissed for non-appearance of the parties.
(6) The High Court of Jammu and Kashmir in Bula Dabloo vs. Sri Kanth Handoo, Air 1963 Jammu and Kashmir 10, declined to follow the aforesaid Patna view and preferred the view of the High Court of Assam in Madan Lal Agarwala vs. Tripura Modern Bank Limited, Air 1954 Assam l, as well as the view of the High Court of Madhya Pradesh in Pooranchand vs. Komalchand, , where a Division Bench presided over by P. V. Dixit, C.J. observed as follows:- "THEdismissal for default of an application for restoration of a suit under Order 9, Rule 9, Civil Procedure Code. can be set aside in exercise of the inherent powers of the Court under section 151, Civil Procedure Code and the exercise of inherent powers is not fettered by any rule of limitation. Order 9 in terms applies only to suits. The remedy under Order 9, Rule 9, Civil Procedure Code, is not a matter of procedure. The rule gives a substantive right of appiying for restoration of a suit dismissed for default. Section 141 deals only with procedure and not with any substantive right. It does no more than provide the procedure to be adopted by Courts of civil jurisdiction in dealing with matters before them. It does not provide that the Code is to be applied in its entirety to such proceedings so as to confer the right of appeal or any other substantive right in those proceedings. Order 9" Rule 9 camnot by virtue of section 141 be invoked for setting aside the dismissal in default of an application for restoration of a suit under that rule."
(7) The High Court of Bombay in Laxmi Investment Company's case (supra), paragraph Ii, expressly dissented from the aforesaid view of the High Court of Patna in Doma Choudhary-'s cc.se. The Court of the Judicial Commissioner in Laisram Tomba Singh vs. Moiranghem Thopa Singh, Air 1961 Manipur 35, without referring to the Patna authority, has taken the view contrary to the Patna authority. It, therefore, follows that the view of the High Court of Patna that the second application for restoration is not maintainable in view of the fact that the dismissal of the first application was an appealable order, has not found favor with the majority of the High Courts in the country. The relevant provisions of the Code are as follows :- "ORDER9, Rule 9:,-(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause turn his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
Order 43. Rule 1. Appeals from orders.-An appeal shall lie from the following orders under the provisions of section 104 namely:- (A)* * * * * * (b) * * * * * * (c) an order under Rule 9 of Order Ix rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; * * * * (8) It is apparent that the provisions for appeal come into play where an application has been made to set aside the dismissal of a suit in a case open to appeal and an order is passed rejecting an application under Rule 9 of Order 9, A petition under section 20 of the Arbitration Act is deemed to be a suit by virtue of sub-section (2) of section 20 of the Arbitration Act, but it does not result in a decree and is concluded by an order of the Court either ordering the agreement to be filed and making the reference to the Arbitrator or refusing to do so. This order is appealable under clause (4) of section 39 of the Arbitration Act whether the Court files or refuses to file an arbitration agreement and under no other circumstances. The prayer made in the second application for restoration is not for setting aside the dismissal of the suit or for that matters a deemed suit, but only for recall of the order dismissing the miscellaneous application for restoration. It is easy to appreciate that the Code does not contain any express provisions for filing or restoration of miscellaneous applications and the provisions mostly deal with trial and decision of suits. An application for restoration is really in the nature of an application requesting the Court to recall its previous order not on the ground that the order of dismissal was illegal or unjustified in the state of the existing record, but it is moved on the ground that the applicant had been prevented by a sufficient cause from appearing before the Court on the previous date on account of circumstances which were perhaps not known to the Court when it passed the order of dismissal. In respect of such circumstances and sufficiency of the cause, the applicant may have to substantiate his allegations by affidavit or oral evidence which the Court has to consider and then determine whether the previous order should be set aside. The function of the appellate Court is to see whether the order challenged under appeal suffers from any legal infirmity and there is no obligation on the Court of appeal to examine additional facts or receive additional evidence and determine whether the facts and circumstances contended by the applicant which occurring outside the Court record prevented his appearance before the Court below constitutes sufficient cause for non-appearance, particularly when the lower Court has not had the occasion to pronounce upon the correctness of the allegations. This would be outside the province of normal exercise of appellate jurisdiction. It is difficult to concede that it would be legal on the part of the Court of appeal to exercise powers under Order 41. Rule 27 and Order 41, Rule 25 of the Code under such circumstances and without recourse to them it would be impossible to grant relief to the party, even if the ground set up by it were true and sufficient. In that case the party will suffer irreparable injury. On the other hand, the Court of appeal will well be in a good position to determine the same after the Court of first instance has recorded evidence on affidavits or otherwise and decided the correctness of the contentions of the applicant in one way or the other. This High Court in a Division Bench authority (S. N. Andley, C.J. and T. P. S. Chawla, J. in Subhash Chander vs. Rehmat Ullah, 1972 Rent Control Reporter 977, was faced with a similar situation in a case arising under the Delhi Rent Control Act. One of the question raised was whether the Controller under the Delhi Rent Control Act was entitled to set aside an ex parte order passed by him on the principles underlying Order 9, Rule 13 of the Code of Civil Procedure in exercise of analogous inherent powers under section 151 of the Code. It may be noticed that section 37 of the Act applies the practice and procedure of a Court of Small Causes to the cases under the Rent Control Act before the Controller and Rule 23 of the Rules under the Rent Act has laid down that the Controller shall, as far as may be possible, be guided by the provisions contained in the Code of Civil Procedure. Section 43 of the Rent Control Act provides that the orders of the Controller shall be final unless set aside on appeal provided by the Act. The argument advanced before the Division Bench in that case, therefore, turned on the point that as a result of the aforesaid provisions of the Rent Act the Controller had no power to set aside an ex parte order and that the remedy of the party, if any, was to file an appeal. This was repelled by the Division Bench. The Court observed that in a proceeding to set aside an order made ex parte, the applicant does not question the correctness of the order made; but only whether, right or wrong, in the circumstances, it ought to have been made at all and paradoxically, the order made ex parte may be perfectly sound on the record as it stood when it was made, and yet be set aside if the absent party establishes sufficient cause for not appearing when the case was called and such a proceeding, therefore, does not question the finality attaching to the correctness of the order. Finally, the Division Bench observed that the scope of an appeal was different from that of an application or setting aside an ex parte order, and though the two remedies may occasionally overlap, they did not cover the same ground. In the opinion of the Bench, the availability of an appeal against an order made ex parte was irrelevant for deciding whether the Controller had power to set it aside. We are in respectful agreement with the aforesaid view of the Division Bench of this Court. We do not want to be understood as laying down that an appeal, where it is provided for, lies only against a decision given on merits and not on a Us dismissed in default or decided ex parte or otherwise. We are, however, of the view that the availability of the appeal under Order 43, rule (1) clause (c) of the Code is not a specific or adequate remedy for restoration and it does not bar the moving of a miscellaneous application for restoration in exercise of the inherent powers of the first Court and the two remedies are not mutually exclusive and so one does not bar the other by necessary intendment. The availability of two or more remedies for the same wrong, which are not mutually exclusive are not unknown to law; for example in a dismissal under Order 9 Rule 3, a party may apply for restoration or file a separate suit as provided by Rule 4. In the matter of an injunction, the party may either apply for variation under Rule 4 of Order 39 or file an appeal under Order 43. Reference in this connection may be made to Zila Parishad vs. B. R. Sharma, and Mangal Achi vs. S. Asokan, . Where, however, the Code provides specific grounds and remedy for moving the Court of first instance, no recourse can be had to the inherent powers under section 151 of the Code of Civil Procedure; for example in an ex parte decree passed under Order 37, Rule 2 of the Code, a party must either file an appeal or move under rule 4 for setting aside the decree, but it cannot have recourse to the exercise of inherent powers: See Ramkarandas vs. Bhagwandas Dwarkadas, . However, in our opinion, the remedy of appeal is not a specific or adequate remedy to obtain recall of the order dismissing the application for restoration in default of appearance and the moving of second application is not barred cither expressly or by necessary intendment. Our conclusion is that the availability of the appeal under Order 43, Rule 1, clause (c) of the Civil Procedure Code does not bar the making of an application by a party to the Court of first instance for setting aside the order which it had passed in default of appearance. In our view. such an application would not only be legally maintainable, but eminently desirable to be made in the circumstances where the order is not challenged on. the ground that the order of dismissal was illegal or unjustified in the circumstances of the case apparent on the record, but the order is sought to be recalled on account of facts and circumstances outside the record of the case which the applicant wishes to allege and prove. We are, therefore, with the greatest respect, unable to agree with the view expressed in the decision of the High Court of Patna mentioned above and we reject the contentions of the petitioners in this revision.
(9) This takes us to the other question whether the second application is maintainable under Order 9. Rule 9 of the Code read with section 141. This view has been propounded by the High Court of Andhra Pradesh in Raja Appa Row's case (supra). It has followed an earlier view of the High Court of Madras in Venkatanarasmha Rao vs. Survanarayona, Air 1926 Madras 325. The authority has made strong observations to the effect that if there can be sufficient cause which can prevent a plaintiff from attending the Court when a suit is called on for hearing there can certainly cause similar sufficient cause for a plaintiff not appearing when his application is called and if there were no provision in law turn a second application being made by the plaintiff, he would suffer an irreparable loss and such an intention could not be attributed to the legislature. The Court also observed that some decisions had taken the view that such an application was maintainable under section 151 of the Code of Civil Procedure. However, the High Court of Madhya Pradesh in Pooranclund's case and the High Court of Bombay in Laxmi Investment Company's case (supra) did not accept the said dictum of the High Court of Andhra Pradesh, Considering the decision of the Judicial Committee of the Privy Council reported as Thakur Prasad vs. Fakirullah, I.L.R. 17 Allahabad 140, corresponding to 12 Indian Appeals 44, they were of the view that section 141 of the Code applied to original independent proceedings like probate, guardianship, divorce, insolvency, succession certificate and the like and not to execution proceedings or other interlocutory applications which arose out of or related to suits and the expression "original matters" confirmed the view that matters . which originate in themselves and not those which spring up from a. suit or from some other proceeding or arise in connection therewith. The High Court of Lahore in Abdul Rahman Shah vs. Shahana, A.I.R. 1920 Lahore 304, held that where a suit is dismissed for default and an application for restoration of the suit is also dismissed for default, an application for restoration of the previous application is maintainable under Order 9, Rule 9, read with section 141 of the Code. In this connection, an observation was also made to the effect that it was not necessary in every case to have the support of a section of the Civil Procedure Code to empower the Court to pass an order not expressly or impliedly forbidden and which is essential in the interests of justice and the provisions of the Code of Civil Procedure were by no means exhaustive.
(10) In this revision, it is not necessary for us to decide as to whether section 141 of the Code will apply to the second application for restoration of earlier application for restoration which has itself been dismissed in default of appearance. The correctness of the view of the High Court of Lahore with regard to the applicability of section 141 may require examination in some other appropriate case. For the moment, it is sufficient to notice that the said decision itself makes reference to the inherent powers of the Court under section 151 of Code.
(11) The law with regard to inherent powers of the court has been authoritatively laid down by the Supreme Court in Manohar Lal's case (supra). The Court observed that "the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them." Inherent power has not been conferred upon the Court but this power is inherent in the Court by virtue of its duty to do "Justice between the parties before it and section 151 of the Code says that "nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court", and according to the Court, it was, therefore, not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The Court also observed that no party has a right to insist on the Court's exercising this inherent jurisdiction and the Court exercises it only when it considers it absolutely necessary for the ends of justice to do so. These observations were made in connection with the question as to whether the Court possessed powers to issue ad interim injunctions apart from the provisions of Order 39 and section 94 of the Code and the Court, by a majority, answered the question in the affirmative. This authority besides , establish the rule of law that the Court possesses inherent power to recall its order if it is satisfied that it is essential in the interests of justice to do so in the circumstances presented before it. P. S. Safeer, J. in Desk Bandhu Gupta and Company vs. K. B. Malik and Company and others, I.L.R. (1972) I Delhi 342, observed that "it has been a uniform view that where an application under Order 9, Rule 9 is dismissed in default, a second application would lie for urging that there was sufficient cause for condoning the default and for restoring the application to hearing." This view of the law has consistently been followed in Delhi and second applications are entertained and have never been thrown out on the ground that they are not maintainable in view of the provisions of appeal contained in Order 43. We are, therefore, disinclined to disturb the said practice. All the authorities that we have noticed above, excepting the Patna High Court with which we have disagreed, have taken the view that the application is maintainable under the law. As a result we answer the question in the affirmative and hold that the second application for restoration of the first application for restoration, which had itself been dismissed in default, is maintainable in exercise of the powers of the Court preserved under section 151 of the Code of Civil Procedure. The contention of the petitioners, therefore, fails and is rejected.
(12) The second contention raised by the counsel does not require any serious consideration. As observed in the referring order issue No. 1 was concluded by a pure finding of fact arrived at by the Court below on a consideration of the evidence produced and believed. We are of the opinion that the impugned order does not show any legal or jurisdictional infirmity and the revision has no force.
(13) As a result, the revision petition is dismissed. Costs of the revision will abide by the result of the petition in the Court below.