Ramanath Misra vs Ganeswar Misra and Others

D.P. Mohapatra, J.—One of the Defendants in Original Suit No. 168 of 1976-1 of the court of the Munsif, Puri has filed this application u/s 115 of the CPC being aggrieved by the order dated 8-12-1981, rejecting his application to restore Misc. Case No. 10 of 1981, under Order 9, Rule 13, Code of Civil Procedure.

The gist of the relevant facts leading to this proceeding may be stated stated thus: The opposite party No. 1 filed the above mentioned suit against the Petitioner and opposite party Nos. 2 and 3 for declaration of title and for recovery of possession in respect of Ac.0.06 decimals of land in plot No. 3521 under Khata, No. 941 of village Sri purusottampur in the district of Puri. The Plaintiff opposite party No. 1 based his title to the disputed land on the registered sale deed dated 8-4-1972 said to have been executed by opposite party No. 3, Brahmananda Misra, son of Kasinath Misra for a consideration of Rs. 100/-. The Petitioner-Defendant No. 1, while denying the allegations made by the opposite party No. 1 took the stand that opposite party No. 3 is not the son of Kasinath Misra, but he is the son of one Binayak Misra. Kasinath Misra, the father of the Petitioner, had a son named Brahmananda Misra who died long since. The Petitioner pleaded that Brahmananda Misra said to be the executant of sale deed in favour of the opposite party No. 1 had no right, title and interest in the suit property.

The suit was posted for hearing to 9-1-1981. On that date, the Petitioner, the main contesting Defendant, was suffering from typhoid and could not attend the court. The suit was decreed ex parte on 12-1-1981. The Petitioner filed an application under Order 9, Rule 13, CPC for setting aside the ex parte decree which was registered as Misc. Case No. 10 of 1981. After hearing both the parties, the court below by his order dated 10-7-1981 set aside the ex parte decree subject to payment of Rs. 100/- as cost by 15-7-1981. The operative portion of the order reads as follows:

In the result, the ex parte decree against the Defendant-Petitioner is set aside subject on his payment of cost of Rs. 100/- to the Plaintiff by 15-7-1981, as condition precedent, failing which the ex parte decree will stand. Put up on 15-7-1981 for further orders.

Since the Petitioner could not comply with the direction for payment of cost by 15-7-1981, a petition was filed for further time to comply with the direction. On consideration the Court below extended the time till 20th July, 1981 for compliance with the aforesaid direction.

According to the Petitioner on 20th July, 1981 when he was coming from his village Birapurusottampur to board the train at Delang Railway Station, a distance of about 8 miles, there was heavy rain due to which the village road became difficult to negotiate. Due to this reason, the Petitioner was unable to catch the train towards Puri which leaves the station at 8 a. m. When he reached Puri at about 2.30 p. m. he learnt that the misc. case has been dismissed for non-payment of cost. On the very next day i.e. 21-7-1981 a petition u/s 148 read with Section 151, CPC was filed on behalf of the Petitioner to permit him to deposit the cost on that day. The court below by his order dated 11-9-1981 dismissed the said petition as not maintainable. Thereafter the Petitioner filed an application u/s 151, CPC for restoration or Misc. Case No. 10 or 1981 which was dismissed by the impugned order. Hence, the revision petition.

The Petitioner filed application u/s 151, CPC (Misc. Case No. 61 or 1981) giving rise to the present proceeding narrating the facts stated in the foregoing paragraphs. The Plaintiff opposite party No. 1, as the impugned order reveals, did not file any counter disputing the facts mentioned in the petition and conceded that the facts mentioned in the petition might be true. He contested the proceeding solely on the ground that the application u/s 151, CPC is not maintainable. A perusal or the impugned order shows that the court below has rejected the application on the ground that Section 151, CPC has no application to the case since-under Order 43, Rule 1(d), Code of Civil Procedur. The Petitioner has a right or appeal against the order rejecting his application under Order IX, Rule XIII, CPC to set aside the ex parte decree. The court has further observed that it had indeed no jurisdiction to extend time on 15-7-1981. This observation or the court below is not very relevant for the present purpose since the order dated 15-7-1981 extending time for payment or cost till 20th, July, 1981 has not been challenged by any party.

The main question for consideration is whether the court below was justified in holding that the petition u/s 151, CPC for recalling the order dated 20-7-1981 dismissing the petition under Order IX, Rule 13, CPC for Petitioner''s default in payment of cost to the opposite party No. 1 was not maintainable. As mentioned earlier a previous attempt by the Petitioner seeking the court''s permission to deposit the cost on 21-7-1981 was also refused on the ground or non-maintainability. The said application was filed u/s 148, CPC read with Section 151 or the Code. Section 148 or the Code expressly provides

Where any period is fixed or granted by the Court for during or any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

Order IX, Rule XIII, CPC empowers the Court which passed decree ex parte against the Defendant to set aside the said decree if satisfied about the existence or the conditions mentioned in the provision, upon such term as to costs, payment into court or otherwise as it thinks fit. Thus the direction of the court to the Petitioner to pay a sum of Rs. 100/- towards costs to the opposite party No. 1 by 15-7-1981 comes within the terms "for doing of any act prescribed or allowed by this Code" in Section 148. Thus there can be little doubt that Section 148, CPC was applicable to the application filed by the Petitioner on 21-7-1981 to enlarge the time for payment of costs. Farther, the position has to be accepted as well established that even if the direction to pay the costs as a condition for setting aside the ex parte decree does not strictly come within the purview of Section 148, Code of Civil Procedure, still the court has ample jurisdiction u/s 151 of the Code to enlarge the time in an appropriate case. This view gains support from the decisions reported in Mahanth Ramdas v. Ganga Das 1961 S.C.D. 264 and Narasingha Charan Swain Vs. Jairam Jena and Others, . As such, the trial court erred in rejecting the application dated 21-7-1981 u/s 148 read with Section 151, CPC filed by the Petitioner as not maintainable.

Coming to the impugned order, as noticed earlier, the main ground on which the court expressed its inability to entertain the application of the Petitioner to recall the order rejecting the application under Order IX, Rule 13, CPC was that the order was appealable under Order 43, Rule 1(d) of the Code.

In the case of Nanak Chand Khandelwalla and Ors. v. Fakir Chand Khandelwalla and Anr. 38 (1972) C.L.T. 519, R.N. Misra, J., as he then was, held that where a petition under Order 9, Rule 13 is dismissed for default, it is appropriate that the party concerned should file an application u/s 151, CPC and proceed to adduce evidence in support of the averments made in the said petition. It was further held therein that an appeal is not the appropriate remedy in such a matter since there will be no material before the appellate authority to judge whether there was sufficient reason for the Appellant''s inability to proceed with the case under Order 9, Rule 13 on the date fixed. His Lordship quoted with the approval the view taken in the case of Kunjabehari Das v. Chanchala Das and Ors. 31 (1965) C.L.T. 769. It will be helpful to quote the extract from the latter judgment:

...It is conceded by Mr. Mohapatra that the consensus of opinion of the various High Courts of India is that the provisions of Order 9, Code of Civil Procedure, have no application to a proceeding under Order 9. If that be so, there is no provision in the Code, either express or by necessary implication, which would conflict with exercise or inherent jurisdiction by the Court in the matter or restoration. Existence of an alternate remedy by way of appeal has nothing to do with the exercise of the inherent powers by the Court in the matter of granting restoration before whom the proceeding was dismissed for default. Thus, this is a contingency in respect of which there is no specific provision in the Code. It is well known that the Code is not exhaustive. The powers of the Court u/s 151, Code of Civil Procedure, can, therefore, be invoked for restoration of a proceeding under Order 9 dismissed for default. This aspect of the matter was not considered in the Patna Case and could not have been precisely examined until the matter was authoritatively pronounced by a series of Supreme Court decisions. On the aforesaid reasoning I have no hesitation in holding that Doma Choudhary and Others Vs. Ram Naresh Lal and Others, , was wrongly decided. The decisions of this Court which followed the aforesaid Patna Full Bench cannot be accepted as correct....

In view of the principle laid down in the above-mentioned decisions, with which I am in respectful agreement, it cannot be said that the court''s inherent power recognised by Section 151, CPC is in any way affected because the order rejecting the application under Order 9, Rule 13, CPC is appealable. Thus, the Court below erred in rejecting the application on this ground.

On the discussion aforesaid, the revision petition is allowed, the order dated 8-12-1981 of the Additional Subordinate Judge, Puri dismissing Misc. Case No. 61 of 1981 as not maintainable, is set aside. The trial court is directed to dispose of the case on merit according to law. Both the parties will bear their respective costs of this proceeding.