Mahammed Nur vs Makhan Meah and others

Brij Narain, J.C.

This is an application in revision Against the order of the learned Subordinate Judge, Tripura dated 17-11-1954 passed in Civil Suit No. 89 Deng of 1954 by which the order of dismissal for default passed on 24-9-1954 was set aside and the suit was restored to its original number under O. 9, R. 4 read with S. 151, C. P. C.

It has been contended by the learned Advocate for the petitioner that the order dated 17-11-1954 could not legally be passed under S. 151, C. P.C. and reliance has been placed on ''Hiralal Ramsukh v. Monghibai Chimnaji'', 1938 Bom 510 (AIR V 25) (A)'', in which it has been held that the inherent jurisdiction under S. 151 C. P. C. would be exercised sparingly by the Court where there is a specific provision of law or a specific procedure provided by law, which has not been followed by a party or of which advantage has not been taken by a party; vide also "Krishna Kumar v. Jawand Singh'', 1947 Nag 236 (AIR V 34) (B; in which it has been mentioned that the inherent power of the Court under S. 151, C. P. C. cannot be invoked when there is an express provision of law dealing with the matter.

The contention is that the learned Subordinate Judge, by passing the order in question acted against the provisions of Art. 163, Limitation Act and O. IX, R. 4, C. P. C. while exercising jurisdiction under S. 151, C. P. C. and this was legally not permissible. The further argument is that if the restoration order dated 17-11-1954 was illegal all the subsequent proceedings in this case would also be illegal. I have now to see how far is this argument tenable.

The order passed by the learned Subordinate Judge on 17-11-1954 shows that the prayer of the petitioner for serving notice on him was not accepted and it was stated that the Court should hear the parties as contemplated in S. 151, C. P. C.,

The order thus clearly shows that the restoration order was not passed under S. 151, C. P. C. and as a matter of fact it was passed under O. 9, R. 4, C. P. C.

It appears from the record that this suit was instituted on 4-11-1950 and the present petitioner got any number of adjournments in the case and then he refused to, pay costs and so the suit was decreed ex parte on 12-6-1951. Then the petitioner went in revision and on 3-11-1952 this Court ordered that the case should be proceeded with on the merits. Then eight dates were given in the case and. 20-9-1954 was fixed for final disposal.

On that date the plaintiff, acting on some misapprehension that Courts were closed on that day, did not turn up and so the suit was dismissed for default on 24-9-1954. The Courts were then closed for the long vacation and on the reopening day the application for restoration under O. 9, R. 4, C. P. C. was presented and so there is no question of the order in question going against the provisions of Art. 163", Limitation Act.

The argument that the restoration order was passed under S. 151, C. P. C. does not appear to me to be correct and as the plaintiff''s evidence had been recorded and nineteen documents had been filed by him on 22-5-1951 the plaintiff thought that the case should not have been dismissed in his absence because there was sufficient evidence on the record in his favour and so he invoked S. 151, C. P. C. in his favour. This fact alone will not make the order in question in any way illegal nor will the fact that the words "Order 9, R. 4" were omitted in the order make any difference.

The present petitioner has already delayed the proceedings by six years and as the restoration order dated 17-11-1954 was passed according to law, I see no force in the present application in revision. In any case this is not a fit case in which discretion should be exercised in favour of the petitioner for allowing him any more opportunities to delay proceedings further and so I reject the present application in revision.