Abdul Haq vs Sant Ram

(1) This is an application for rehearing of a revision petition, which was decided ex parte on 20570. The ground taken in the application is that this

case was fixed on 19th May 1970 which was declared a holiday. The petitioner's learned counsel approached the Deputy Registrar of this

SantRam court who told him that the case would not be taken up on the 20th of May 1970 but some other date would be fixed. Acting on this

assurance, the learned counsel did not appear in the court on 20th May 1970. But the case was actually taken up on that date and decided ex

parte.

(2) An objection has been taken on behalf of the respondent, that this application does not lie. The revision petition has been heard and decided

after hearing the counsel for the respondent. There is no provision in the Code of Civil Procedure under which an order passed by this court on

20th May 1970 in this case can be set aside and the petitioner heard in the revision petition. The learned counsel for the respondents relied on

1901 Punjab Record page 172 (case No. 54) a Full Bench Judgment and on other judgment reported as AIR 1945 Mad. 103 and AIR 1944

Mad. 29 \ The learned counsel for the petitioner has argued that as the revision petition was heard ex parte, in law if he can satisfy the court for the

uponappearance of the petitioner on that date, the ex parte order shall be set aside and the petition heard on merits. He referred me to AIR 1953

Madh Bharat 272, AIR 1965 All. 446 and AIR 1967 J&K 93.

(3) In 1901 Punjab Record page 172, the learned Judges were considering whether second application for revision after the decision of the first

does or does not lie. They held that though another application for revision would lie when the original application was dismissed for default but no

second application would lie if the first revision application has been decided even ex parte. Their lordships further laid down that in such cases a

review petition should be presented. In the first place the point that arises in this case was not strictly before their lordships for their consideration in

that case. There they were considering whether a second application for revision would lie or not. Here the case is not of a second revision

application but of cancelling an ex parte order passed in a revision petition. Therefore the observations in that case have no relevance to the facts

of this case Further I am not inclined to agree with their lordships that a review is the proper remedy in such cases because to .put it briefly, the

conditions on which a review petition lies are entirely different from those considerations which cover restoration of a revision petition or presenting

a second application for revision. I cut this matter short here because any comments on this point would be off the point and uncalled for.

(4) AIR 1945 Mad 103 has already been considered by me in AIR 1967 J&K 93 and I need not repeat the grounds of my disagreement with that

authority over again.

(5) AIR 1944 Mad 293 in fact does not support the learned counsel for the respondent. It lays two points (1) that in view of the limited scope of

Order 47 Rule 1 CPC the absence of the counsel or his party is no ground for review and inherent power of the court cannot be invoked in such

cases. But at the same time it held that order 9 Rule 9 could be made applicable to dismissal of execution petitions which means that if an execution

petitions which means that if an execution petition is dismissed for default, it can be restored on good grounds shown.

(6) On the other hand the Madhya Bharat authority reported as AIR 1953 MB 272 clearly lays down that Order 22 Rule 9 applies to revision

proceedings ; reliance is placed on Section 141 of the Code of the Civil Procedure which reads as under :

The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of

Civil Jurisdiction.'1

(7) And the learned Judge rightly remarked that the words ""all proceedings"" occuring in Sec. 141 embrace proceedings of all character, original as

well as those that are not original The word ""all"" is a comprehensive term and His Lordship says that a revision is a proceeding to which section

141 applies.

(8) AIR 1965 All 446 the matter has been carried still further and it has been held that Section 141 Code of Civil procedure is not restricted in its

applicability to original proceeding only but also applies to a reference under section 146 Criminal Pr: Code and in AIR 1967 J&K 93, I have

given my own reasons why Section 141 Code of Civil Procedure should apply to revision petitions.

(9) I have not been able to understand the argument of the learned counsel for the respondent that if a revision petition is heard even though ex

parte no application should be entertained for setting aside the ex parte order and rehearing the petition. If this argument were correct then

provisions of Order 9 Rule 9, Order 9 Rule 13 and Order 41 Rule 19 of Code of Civil procedure would be meaning less because in all those

cases the matters are heard ex parte and then decided. It is a principle of natural justice that before any order becomes final the parties should be

heard. If the court has otherwise power to set aside the order passed ex parte, its order will not achieve finality unless both parties are heard in the

main contest. The principles of natural justice has been extended not only to judicial proceedings but to quasi judicial and even to administrative

proceedings. Therefore also it is not only desirable but necessary to hear both parties. In this case if the court has power to set aside the order

passed ex parte and good ground is shown for setting aside the same, the Court is bound to hear both the parties before the order becomes

effective and conclusive. I therefore overrule the preliminary objection of the respondent.

(10) On merits there is not much for the respondent and he has not challenged the contentions of the learned counsel for the petitioner. The petition

is supported by an affidavit. The Deputy Registrar incharge of fixing dates and managing the working of the court had told the learned counsel for

the petitioner that his case would not be taken up on 20th May 1970. The learned counsel for the petitioner had ample justification for non

appearance on that date. Therefore the order passed by me on 20th May 1970 in the main revision petition is hereby set aside and the revision

petition will be heard on merits on a date to be fixed by the Deputy Registrar.