Bula Dabloo vs Sri Kanth Handoo

K.V. Gopalakrishnan Nair, J.—This is a revision u/s 115 of the CPC preferred in the following circumstances. The Petitioner instituted a suit

for declaration and injunction against the Respondent. That suit was dismissed for Plaintiff's default. The Plaintiff thereupon preferred an application

under Order 9 Rule 9 CPC to set aside that dismissal. This application was also dismissed for default. This led the Plaintiff to prefer Anr.

application to restore to file his application under Order 9 Rule 9 which was dismissed for default.

The learned Subordinate judge dismissed this application on the ground that he had no jurisdiction to entertain it by invoking the provisions of

Section 151 of the CPC and that as the Plaintiff had a remedy to prefer an appeal against the order dismissing the Order 9 Rule 9 application he

ought to have pursued that remedy and not sought to come in by Anr. application to restore the Order 9 Rule 9 application. The Plaintiff who is

aggrieved by this order has come up to this Court in revision.

The learned Counsel for the Respondent has in the main reiterated the ground urged in the lower court by placing reliance upon Doma

Choudhary and Others Vs. Ram Naresh Lal and Others, . This decision says that an order rejecting an application under Order 9 Rule 9 being

appealable under Order 43 Rule 1(c) no application to restore such an application can be maintained by resort to the provisions of Section 151 of

the Code of Civil Procedure. This ruling also points out that the dismissal of an application under Order 9 Rule 9 stands on the same footing as the

dismissal of it on merits and that in both the cases the order of dismissal is equally appealable under Order 43 Rule 1(c).

The learned Counsel for the Petitioner on the other hand urges that as there is no provision in the CPC dealing with an application to restore to file

an Order 9 Rule 9 application dismissed for default, a court is entitled to take recourse to the wide provisions of Section 151 and allow that

application with a view to subserving the ends of justice. Reliance for this position is placed on Madan Lal Agarwala v. Tripura Modern Bank Ltd.

AIR 1954 Gau 1 (FB) and Pooranchand Mulchand Jain Vs. Komalchand Beniprasad Jain, . There are also certain rulings of the Nagpur High

Court which have been referred to with approval in AIR 1954 Gau 1 (FB) (supra).

These decisions no doubt strike a note sharply different from the one sounded in Doma Choudhary and Others Vs. Ram Naresh Lal and Others, .

The simple question is which of these conflicting views should be accepted. In choosing between these two rival views, I think I can legitimately

take into consideration the aspect as to which of the two views arms the court with wider powers and enables it to exercise jurisdiction to remedy

defects and mete out evenhanded justice in a given situation when there is no specific provision in the Code providing for such a situation. I am

inclined to treat with less favour the view which would take away from the court than the view which gives the court wider and ampler powers. If it

were otherwise, I think he courts may find themselves not infrequently in what may be called strait-jacket and be confronted with situations in

which they may find themselves almost helpless to do what the requirements of justice may demand. I, therefore, would prefer to follow the view

expressed in AIR 1954 Gau 1 (FB) which is adopted in Pooranchand Mulchand Jain Vs. Komalchand Beniprasad Jain,

This view as I already indicated is that the court can in a case like the present well exercise its inherent powers u/s 151. I should not be understood

as saying that merely because Section 151 clothes a court with wide and ample powers, those powers can be exercised without sufficient justifying

grounds or except on proper judicial lines.

In the present case if the revision is not allowed the result would be that the Plaintiff's suit would fail for ever. This is far too serious a result to

emanate from an innocent looking order of dismissal of an Order 9 Rule 9 application for default. I would, therefore, set aside the order of the

Court below and direct that it is competent or the lower court to consider the merits of the application for restoration of the Order 9 Rule 9

application and if it is satisfied that there is a case for restoring to file the Order 9 Rule 9 application, do so by resorting to the provisions of Section

151 Code of Civil Procedure. It is also open to the Court below if and when it allows the application to put the applicant-Plaintiff on such terms as

the circumstances of the case may require.

In the circumstances of this case, I make so order as to costs in this revision.