Pushpa Devi vs Sawan Singh and others

D.S. Tewatia, J.—The short question that falls for consideration in this revision petition is as to whether the order dated 24th December, 1979 striking off the defence of the defendant-respondents No. 3 and 4 herein under order 8 Rule 10. CPC can be reviewed by the trial Court in exercise of inherent power u/s 151 CPC (when the revision petition filed against that order by the defendant-respondent the High Court had been dismissed as with drawn).

An order striking off the defence of the defendant when he fails to file his written statement would be an order against which a revision petition is competent as it would be an order by which the right of the defendant to take a defence stood finally determined by the trial Court.

The trial Court, even if, a power of review is conceded to it thus could not review that order. Further, even if the defendant had not filed the revision petition in the High Court and the High Court had not dismissed the same as withdrawn, then too order dated 24-12-1979 could not have been reviewed in exercise of inherent powers u/s 151 C.P.C. because the said provision could be invoked only if no other provision existed in C.P.C. providing a remedy for the redress of the grievance in question The following observations of their Lordships in Nain Singh Vs. Koonwarjee and Others, , can be aptly recalled to mind in this regard:--

Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet, the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words, the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided else where in the Code and he neglected to avail himself of the same. Further the power u/s 151 of the Code cannot be exercised as an appellate power.

In the present case revision was competent against the order dated 24-12-1979. Such being the position the trial Court was not comment to exercise jurisdiction u/s 151 C.P.C. in setting aside the said order.

It was, however, urged on behalf of the counsel for the respondent that the trial Court in exercise of power under Order 9 Rule 7 C.P.C. could recall the order dated 24-12-1979.

Aforesaid provision cannot be invoked for setting aside an order passed under Order 8 Rule 10 Rule 7 of Order 9 envisages power to the Court to bear a defendant in answer to the suit which had been earlier adjourned for non-appearance as if he had appeared on the day fixed for appearance on showing good cause for his previous non-appearance on payment of costs.

An order under Order 8 Rule 10 is passed not on account of non-appearance of the defendant but on account of his failure to file written statement. Hence the provisions of Order 9 Rule 7, C.P.C. cannot legitimately be invoked for sustaining the impugned order herein.

For the reasons aforementioned, the petition is allowed and the impugned order is set aside with costs.