Mst. Hajira vs Mst. Hanifa and Another

A.Q. Parray, J.—This revision is directed against the order dated 12-6-1997 passed by Munsiff/ Sub-Registrar, Srinagar.

The facts in brief which have given rise to the present petition are that a civil suit titled Mst. Aisha Bibi v. Mst, Hajra was pending in the Court of

Munsiff/Sub-Registrar, Srinagar and same is alleged to have been dismissed for non-prosecution on behalf of the respondent/plaintiff on 15-2-

1997. It is averred that prior to the institution of this suit, another suit titled Mst. Manila v. Mst. Hajra was pending in the Court of 1st Additional

Munsiff, Srinagar, which loo was dismissed for non-prosecution on 26-12-1995.

It is averred that in both the suits, subject matter was same. The suit titled Mst. Aisha Bihi v. Mst. Hajira has been registered as file No. 1037

Civil instituted on 17-7-1995 and is purported to have been dismissed in default on 15-2-1997. This suit was for partition. The prior suit titled

Mst. Hanifa v. Mst. Hajra was a suit for declaration and was registered as suit No. 24/Civil instituted on 30-12-1994. This suit is alleged to have

been dismissed in default on 26-12-1995.

The contention of learned counsel for the petitioner is that the lis in both the matters referred to above was same, pending adjudication before

the learned Court.

It may be noted that the suit No. 24/Civil instituted on 30-12-1994 titled Hanifa v. Hajira, as per minutes of the file produced by the petitioner

forming Annexure-P2, order dated 26-12-1995 reads as under :--- (Matter in vernacular omitted ...Ed.)

So by reading the order of 26-12-1995, the contention of learned counsel for the petitioner Mr. Kuchay is belied that the previous suit between

the parties over the same subject-matter was dismissed and is not well founded. From the perusal of the order referred to above, it seems that the

suit has been only consigned to records and has not been dismissed. Had the order been that the suit is dismissed in default and ordered to be

consigned to records, then it would be deemed that the suit was dismissed. Thus vide order dated 26-12-1995, the suit has only been consigned

to records and not dismissed. The file is still alive and can be called from the records for further proceedings, in case the plaintiff or the Court so

desires.

Now the second contention of learned counsel for the petitioner that the application moved for restoration of the suit titled Aisha Bibi v. Mst.

Hajira i.e. Suit No. 103/Civil purported to have been dismissed on default on 15-2-1997 and along with the application for restoration, an

application has been moved before the Court asking the defendant/petitioner before me not to eject or evict the person of the plaintiff from the

share of the property which they are holding and are in possession of or in the alternative asking the petitioner/defendant to maintain status quo till

the disposal of the application for restoration of the suit dismissed in default is decided or objections are considered. It is this order which seems to

have been passed by the learned trial Court on miscellaneous application instituted on 24-5-1997, which is application for restoration of the suit

dismissed in default on 15-2-1997.

The learned trial Court had by virtue of order dated 12-6-1997, after hearing counsel for the applicant/respondent before me, allowed the

application by passing the impugned order on 12-6-1997 and has asked the parties to maintain status quo on spot as it exists today, till they file

objections and same are concerned. This order has been passed by the learned trial Judge in exercise of powers u/s 151, C.P.C. It is against this

order that the present revision petition has been filed.

The point for consideration in this revision is whether an order passed by a Court u/s 151, C.P.C. is revisable?

If the reply is in affirmative, then the rule is to be issued for revising such order in exercise of the powers vested in this Court u/s 115, C.P.C.

and if the reply is in negative, then the rule is not to be issued and the petition for revision is to be dismissed in limine.

Already this Court had in a case titled Hakim Gh. Rasool v. Gh. Hassan held that order u/s 151, C.P.C. is notrevisable and has relied on a

judgment of Allahabad High Court reported as Amir Singh Vs. Om Prakash and Others, .

Now Mr. Kuchay learned counsel for the petitioner has tried to convince this Court that orders passed u/s 151, C.P.C. are revisable and has

made reliance on AIR I962 J & K21 and Bhola Nath Banerji and Others Vs. Sarbamangala Debi Roy, .

I had the occasion to go through the judgments referred to and relied upon by learned counsel, but I am constrained to hold that the judgments

do not help the petitioner's contention or the case. In the point for consideration before his Lordship Late Justice Gopala Krishna Nair was that a

suit was dismissed for failure of the plaintiff to deposit guardian's fees for minor defendant in presence of other defendants and it was observed that

there was no provision for restoration of a suit dismissed under Order17, Rule 3,C.P.C. So the restoration of the suit was possible only u/s 151,

C.P.C. The restoration application was dismissed and the Court returned the finding that dismissal of restoration application was revisable order

and not appellable. The application, as such, from the perusal of the judgments was dismissed not u/s 151, C.P.C., but on the count that no

restoration was provided that in case the suit which was dismissed under (X 17, Rule 3, C.P.C. which envisages and contemplates possibility of

decision of the suit on merits suit was in very preliminary stage, there was no decision possible or) merits. The provisions of Order 17, Rule 3,

C.P.C. suggest that the case must be one where in spite of the default of a party to do some necessary act in furtherence of the progress of the suit,

for which time has been given, the Court may notwithstanding such default, proceed to decide the suit forthwith. So the Court must in such situation

be in a position and it should be possible for the Court to come to a decision of the suit. The decision of the suit cannot betaken as or tentamount

to dismiss the suit for default. The provisions cannot deciding the suit on merits and not on default of the party called upon to do some necessary

act in further progress of the suit. So the suit in the circumstances, may be possible to be decided on merits and not on default and in case the suit

notwithstanding the riders of the options provided under Order 17, Rule 3, which reads :

where any party to the suit............ fails to perform any act necessary to the further progress of the suit, for which time has been allowed, the

Court may, notwithstanding such default proceed to decide the suit forthwith.

So now if a suit has not been decided on merits, but dismissed in default, in such circumstances, the only remedy which is postulated in

restoration of a (sic) such a suit is to be done in exercise of the powers u/s 151, C.P.C. and not under Order 9, Rule 4, C.P.C. But if such

application for restoration is dismissed, the revisional powers of the revisional Court are to be restored. So it does not mean that an order passed

by the Court in exercise of the powers vested in it u/s 151, C.P.C. are revisable. However, the Court is empowered under the revisional powers

to see that the order passed by a subordinate Court has not caused failure of justice.

Another case cited by the learned counsel is Bhola Nath Banerji and Others Vs. Sarbamangala Debi Roy, . The facts and the points for

consideration in the case before their Lordships of the Calcutta High Court were that a judgment-debtor moved an application under Order 21,

Rule 9, C.P.C. pending appeal of sale confirmed and possession delivered to auction-purchaser, the appeal was allowed and case was remanded

back to be heard on merits. Court had acted u/s 151, C.P.C. and restored possession to judgment-debtor -- such action has been held by the

Calcutta High Court in the said case as one which being an interlocutory order and not a decree and have heard the revision on that count. But

reliance in the judgment has been placed on Gnanada Sundari Mojumdar Vs. Chandra Kumar De, and both these judgments have ruled that the

appeal is provided for an order of restitution of property, where property purchased and possession delivered in consequence of execution of sale

and the said sale having been set aside under Order 21, Rule 92, C.P.C. Restitution of property, the possession of which has been delivered in

consequence of sale on execution, such orderpassed u/s 151, C.P.C. has been held appellable.

This Bench of the Court has also held that an order passed by a subordinate Judge in exercise of powers vested in it u/s 151, C.P.C. for

furtherence of justice and for seeing that no miscarriage of justice has been caused by such exercise -- the order is not revisable.

The orders passed by the learned Subordinate Court in the circumstances of the case where ; as per averments of the petitioner that the person

of the plaintiff had filed a 2nd suit, when her 1st. suit on the same subject-matter as per averments was dismissed in default on 26-12-1995. The ;

plaintiff had filed another suit on the same subject-matter and this subsequent suit has also been dismissed in default on 15-2-1997. Application for

restoration of the suit has been moved along with the application, an application praying the Court to direct the respondents not to forceably eject

or evict the plaintiff from the possession of the portion of the property in their possession and in the alternative ask the parties to maintain status

quo till disposal of the application for restoration. The subordinate Court having considered the application and has passed the order of status quo

on spot as on date, till objections are filed and considered. The order is a innocuous and is falling with the purview of the order having been passed

by the subordinate Judge by exercise of powers vested in him u/s 151, C.P.C. as no other provision of law has been pressed into service and by

such order, even otherwise also I do not find that any injustice has been caused by the order impugned. The order being one passed u/s 151 of

Civil P.C.

So the revision petition filed against the order having been appreciated in light of the observations made above, does not fall within the purview

of revisable orders and the revision petition is misconceived. The revision petition is accordingly dismissed in limine. Inform the Court below

accordingly.