Rahim vs Karim

J.N Bhat, J.—This is a restoration application in a civil revision petition which was dismissed for default on 18-4-66. The application for

restoration was presented on that very day with the allegation that the learned Counsel for the Petitioner was mistaken about the date of hearing.

Objections have been filed by the other side.

A preliminary objection has been taken that this restoration application does not lie. It is argued by Mr. Sehgal that powers conferred upon the

High Court u/s 115 CPC are of a special character it the High Court is satisfied that a Court subordinate to it has decided case exercising a

jurisdiction not vested init by law or failed to exercise a jurisdiction so vested or to have acted in the, exercise of jurisdiction illegally and with

material irregularity, the High Court may pass such hoarders in revision as it thinks fit. The law revision is contained in this very section and this

section is self-contained. Order 9 orders 41 has nothing to do with the provisions of this section and do not apply to proceedings under this

section. According to Mr. Sehgal Section 151, cannot be invoked to entertain an application for restoration of a revision petition' dismissed for

default.

Mr. Shegal has further argued that there is a principle and a purpose behind the non applicability of either order 9 or Order 41 or Section 151

of the CPC Civil revisions because a fresh Petition in revision will lie if the original revision Petition dismissed for default the authorities that were

cited at as to whether an application for revidismissed for default can be restored are:

AIR 1943 Mad 260(1) : AIR 1945 Mad 108;

1962 MP 308 : AIR 1953 HP AIR 1928 Lah 550.

It is true that in AIR 1943 Mad 26 (1) AIR 945 Mad 103 (Supra) it is held that right Court has no power to restore an action of a civil revision

which is dismissed Court Both these judgments are by the learned Judge, Byers J. The earlier autho-1943 Mad 260 (1) is a very short one arid

ratio decided of that case, without re to any reported authority, is that there is no difference between a revision petition u/s 115 CPC and one u/s

25 of the Provincial Small Causes Courts Act. It. further lays down that when a revision petition under either of the aforesaid sections is dismissed

for default of appearance, the petition cannot be restored. The fetter authority has followed the earlier authority. It is however interesting to read in

the latter authority, i.e., ATE 1945 Mad 103, that the High Court has power u/s 115 to dismiss a revision petition for default of appearance This

interpretation is sought to be covered by the words occurring m Section 115 to the effect that the Court may make such order as it thinks fit."" To

my mind with utmost deference to the learned judge, this authority is too technical and seven somewhat self-contradictory.

An order as thought fit by the Court would est. that the Court would apply its mind to order under revision and then pass such about it as it thinks

fit. Dismissing a case defiant fault is a mechanical order which shows of interest on the part of the Petitioner. if the Court after examining the order

thinks that the application should be dismissed, that would be an order thought fit by the High Court The language of 5. 115 would suggest that the

Court has to examine the order in revision and then pass an order with respect to the case which would mean the subject matter of the revision

petition as it thinks fit. Therefore in any opinion to take shelter under the words thinks fit' is not:a correct or at least a reason c interpretation of the

words of that section go so far as to say that if the Court dismisses an application in revision for default simply for non-appearance of the

Petitioner, it is not an order covered by, Section 115, It Could be an order made under the Inherent powers of the, Court u/s 151 or u/s 141 read

with Order 9 of the CPC There is no express provision in d the CPC or dismissing a revision petition the default. If it is done, the same power

which the Court exercised when dismissing an application for default can be and should be involved then restoring the same.

Section 141 of the CPC lays down:

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

jurisdiction.

Mr. Sehgal however argued that this section applies to proceedings only in a suit and not to other proceedings; but a plain reading of this;

section would show that it applies to all proceedings in any Court of Civil section. It is not disputed that the High Court is a Court of civil

jurisdiction, and the proceedings of revision are proceedings in that Court which is of civil jurisdiction. Therefore the pro cadre provided in this

Code namely the application of Order. 9 would be invoked so far as petitions in civil revision to the High Court are concerned. The authorities that

were cited before me have not taken cognizance of Section 141. In my opinion Section 141 read with Order 9 would cover the present restoration

application.

Mr. Sehgal's alternative argument in that a restoration application in a civil revision petition cannot be entertained because the Petitioner is at

liberty to file another revision petition if his first revision petition is dismissed for default. This argument is contradicted by the provisions of Order 9

CPC itself order 9, Rule 4 if a suit is dismissed for default of the parties, the Plaintiff can bring a fresh suit or apply for restoration of the original

suit, if the intention of lawiwjere to bar an application for restoration' where a fresh suit could be brought, that should not be the language of Order

9, Rule 4. Similarly the availability to the Petitioner of the right to file another revision petition if the first is dismissed for' default is no argument for

not entertaining an application for restoration of a revision petition dismissed for default. There are authorities mentioned above which - clearly

support the proposition that a restoration application lies in a revision petition dismissed for default. These authorities as already indicated are: AIR

1962 Madh Pra 308, Kanshi Ram Vs. Mt. Dharmi and Another, .

Gulam Ali Bohara Vs. Vishwanath Balwant Mahakal, has entered on an elaborate discussion of the proposition. No doubt there are some rules

in Madhya Pradesh namely R. No. 12 of Chapter IV of the rules of that court which has been mentioned in the judgment. But apart from that rule

the authority says at p. 309:

The real method of approach in "" considering the question whether the court in given case-can act u/s 151; CPC is to see whether resort to it is

either expire or by necessary implication prohibited. if there is no specific prohibition and resort of such power serves the ends"" of justice instead of

defeating it then it can always be resorted To hold otherwise would be to give preference to form over requirements of justice.

Then two decisions of the Privy Council, one Md. Abdul Majid v. Md. Abdul Azix, (1897) 24 I A 22 (PC) and another of Mahmood J. in

Narsingh Das v. Mangal Dubey (1883) ILR 5 All 163 (FB) have been quoted The latter authority had said:

The courts are not to act upon the principle that every procedure is to be taken prohibited unless it is expressly provided by the Code, but on the

converse principle every procedure is to be understood as sable till it is shown to be prohibited1 As a-matter of general principle, part cannot be

presumed

Section 151 of the CPC is a writ of demand enabling section. The framers of the Code envisaged the shortcomings of legislation and they were

convinced that there would always be case and circumstances which would not he covered by the express provisions of the Code the reason was

obvious. The legislature could foresee only the most natural and ordinary event sand and not rules or regulations for all time to come so as to make

an express provision against all inconveniences which are infinite in number so that their disposition shall express all the cases that might probably

happen. The second reason for bringing in this provision of law was that rules of procedure may be abused or seduced to a mere formality, the

result being of frutrating rather than facilitating the administrational of justice. It was for this very reason that Mahmood I. had to lay down in Nar

singdas's ease (1883) ILR 5 All 163 (FB) the rule el law quoted above. The courts therefore have an inherent power under this section to act

weanling to justice, equity and good conscience especially in India, where every court is a court of equity as well as of law. There may be genuine

cases in which no express provision will by made in the Code for certain hardships and which if unheeded would result in abuse of the process of

the court and defeat the ends of justice. It is to cover such cases that this enabling section was put in the Code. Cases can be envisaged where a

dismissal for default of a revision application may result in substantial injustice. The Court should not feel itself powerless to restore the case to its

original number and then dispose it of according to its merits.

On merits there is not much controversy. Mr. Sehgal has stated that he has not much so contest on merits. The original application was

dismissed on 18th April 66. A rest to fact that in the year 55-56 the goods belong-ration application was presented that very day, attuning as a

ground for restoration that the counsel was mistaken about the date of hearing. The learned Counsel for the Petitioner has put in mi all davits in

support of his application. Accepting the affidavit I think there is sufficient cause for restoring this revision petition. The revision petition will be

restored on pencil of its. 16 as costs to the other side.

The costs have been paid. The revision petition will now come up for hearing on 16-12-1966.