Santosh Chandra Das vs Arjun Chandra Das and Others

B.L. Hansaria, J.—The scope of inherent power u/s 151, Code of Civil Procedure, is subject matter of this reference to a Division Bench by a learned Single Judge of this Court. The inherent power inheres in a Court. It has its root in the necessity and its breadth is co-extensive with the necessity, as noted in The Newabganj Sugar Mills Co. Ltd. and Others Vs. The Union of India (UOI) and Others, . Of course, even such a power cannot be exercised against any statutory prescription. It is because of this that the inherent power was held in Padam Sen and Another Vs. The State of Uttar Pradesh, as a power in addition to those specifically conferred by the Court. This being a complimentry power, the Court is free to exercise it for the purposes mentioned in Section 151 when invocation of the same is not in any way in conflict with what has been expressly provided. The restriction on the exercise of inherent powers on the face of express provision in the Code is, because of the fact that it should be presumed, as observed in Manohar Lal v. Seth Hiralal AIR 1962 SC 327, that the procedure specifically provided by the legislature is dictated by the interest of justice. The limitation on the inherent power may however be express or may be read by necessary implication.

These thoughts have been well summarised in Ram Chand v. Kandhayalal AIR SC 1899 in these words:

The inherent power of a Court is in addition to and complimentary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers express or by necessary implication conferred by the other provision of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provision Whatever limitations are imposed by construction on the provision of Section 151 of the Code, they do not control the undoubted power of the Court conferred u/s 151 of the Code to make it suitable to prevent the abuse of the process of the Court.

(Emphasis added).

It is because of express provision covering exhaustively a particular topic that in Arjun Singh Vs. Mohindra Kumar and Others, , it was ''held that the inherent power cannot be exercised to take care of consequences due to non-appearance of the Defendant at hearing of a suit as the provisions in Order 9 exhaust between them the whole gamut of the situation that might arise during the course of the trial. In Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas, recourse to Section 151 in a matter covered by Order 37, Rule 4 was for out because of the express provision in that rule to take care of setting aside of exparte decrees passed in summary trial for which purpose an inherent power was sought to be invoked.

The decisions in Ram Chand (supra) and Jaipur Mineral Development Syndicate, Jaipur Vs. The Commissioner of Income Tax, New Delhi, , show that as to when the inherent power can compliment the express provision. In Ram Chand (supra) due to failure of a Director to appear before the Court who was asked to do so under the provisions of Order 29, Rule 3 Code of Civil Procedure, the Company''s, defence in the suit was struck off. Now a reference to the aforesaid provisions show that this power has not been expressly conferred by the Rule. But as there was no bar express or one following by necessary implication, in passing such an order, it was held by the Supreme Court that in case of default, the Court could make a suitable consequential order u/s 151 as may be necessary for the ends of justtice or to prevent the abuse of the process of the Court. In Jaipur Mineral Development Syndicate, the High Court had refused to answer a reference under the Income Tax Act because of the absence of the party and non-filing of paper book. Subsequently, a petition was filed to dispose of the reference on merits by showing sufficient cause for non-appearance etc. It was held that the High Court had inherent power to recall its earlier orders, as there was nothing in the provisions of the Income Tax Act which either expressly or by necessary implication stood in the way.

The case of Nain Singh Vs. Koonwarjee and Others, is important for our purpose as it has been held that the inherent power must be exercised subject to the rule that if the Code does contain a specific provision which would meet the necessities of the case, such a provision should be followed and inherent jurisdiction should not be invoked. It was also pointed out that power u/s 151 cannot be exercised as an appellate power.

These pronouncements of the highest Court have been noted because in the case at hand recourse to Section 151 has been ruled out by the learned trial Court because of the existence of the remedy of appeal. In coming to this conclusion, the decision of this Court in Atul Krishna v. Bhownrilal AIR 1952 Gau 149, has been referred to. To appreciate what is being stated later, let the facts be noted in nut-shell at this stage. What had happened was that the Petitioner had filed a suit which came to be dismissed for non-payment of deficit Court fee. On approach being made to this Court in revision, two months time was allowed to the Plaintiff for paying the deficit Court fee. The two month period was to run from the date of receipt of the records by the trial Court. It would seem that the records were received on 16.12.72, but were first put up on 7.7.73 when 18.7.73 was fixed for orders. This order was shown to the Counsel of the parties on 14.7.73 and 16.7.73. The deficit was not cleared and so the plaint was finally rejected on 18.7.73. A petition u/s 151 was thereafter filed on 5.7.76 which has come to be dismissed because it was held that no such petition lay. When the matter came up before the learned Single Judge, be noted the conflicting decisions of this Court, and thought that the matter should be placed before a Division Bench for determination of the question involved.

There is no dispute that the rejection of a plaint is a "decree" within the meaning of Section 2(2) of the Code and as Such an appeal is maintainable. Not only this, in view of what has been stated in Order 7, Rule 13, the rejection of the plaint does not preclude presenting of a fresh plaint in respect of the same cause of action, The question is whether express provision relating to right to appeal will stand in the way of approach u/s 151. It may be stated that in so far as presenting a fresh plaint is concerned, that may not be an effective relief always as question of limitation etc. may crop up when subsequent plaint is filed.

The pertinent point, therefore, which needs a decision is whether express provision of appeal can sound in all cases the death-knell of inherent power. A Full Bench of this, Court answered the question in the negative in Madan Lal v. Tripura Modern Bank AIR 1954 Gau 1. There the Court was seized with an application u/s 151 which was filed after a petition under Order 9, Rule 13 had been dismissed for fault. Though Ram Labhaya, J., took the view that dismissal of Order 9, Rule 13 petition for default is not appellable, Sarjoo Prasad, C.J. and Deka, J. did not agree. Even so, all the three learned Judges held that the approach u/s 151 for restoration was not barred. The reason which prevailed with Ram Labhaya, J, was that the dismissal order itself being u/s 151, recourse to that provision was permissible for restoration also. This view was taken because according to his Lordship, there is no provision in the Code justifying dismissal of an application under Order 9, Rule 19 for default. What was stated by Surjoo Prasad, C.J, is important because according to his Lordship, when an application under Order 9, Rule 13, is dismissed for default, the remedy by way of an appeal would be absolutely futile, According to Deka, J. whether an application u/s 151 would lie should be left to the circumstances of the case, to which no limit was set out.

Another Beach of this Court speaking through M.C. Pathak. C.J. in Shyam Sunder v. State of Assam AIR 1974 Gau 54, while agreeing that the inherent power could be invoked when an Order 9, Rule 13, petition is dismissed for default, held that this could be done where the default, is for the mistake of the Court due to laches on the part of its office. The importance of the judgment for the case at hand is that the availability of the right of appeal was not regarded as a bar in all cases to invoke inherent power.

There are certain other decisions of this Court dealing with approach u/s 151 in cases relating to injunction. We are not referring to them because in view of the decisions of the Supreme Court in Manoharlal (supra), they are not material, more so when the point under examination is different.

What we rather propose to do is to inform ourselves about the thinking of other Courts on the point under examination. Here too we propose to confine to some Full Bench decisions, as such cases being innumberable, the ratio of all cannot be noted. In Muhammed Kassim Abdul v. Hajee Rahiman AIR 1950 TC 100 (FB), the observations occurring at page 478 of Mullas Code of Civil Procedure, 1941, saying that:

(i) nherent jurisdiction must be exercised subject to rule that if the Code does contain specific provisions which would meet the necessities of the case in question such provision should be followed and the inherent jurisdiction should not be invoked.

(Emphasis supplied)

was noted with approval, but on facts, recourse to Section 151 was held not permissible.

The Full Bench, decision in Smt. Bimla Devi Vs. Aghore Chandra Mallick and Others, has gone into the question of effectiveness of the appeal while deciding the question of approach u/s 151. The Bench speaking through S.P. Mitra, C.J. has noted a number of decisions in this regard and has ultimately held, that whole an appeal cannot be regarded as an effective, remedy the availability of the same would not stand in the way of inherent powers. Bimla Devi was a case where an application, (under Order 21, Rule 90, Code of Civil Procedure) has been dismissed for default. Though an appeal lay against such an order, the same was not held to be effective because an appellate Court would not be in a position in such a case to come to any conclusion regarding the sufficiency or otherwise of the reason of default without taking additional evidence or remanding the matter. As it was felt that the power under Order 41, Rule 33 was extremely limited and could not be exercised in the ordinary circumstances, or as a matter of course, the remedy of appeal was not held to be a bar to invoke power u/s 151.

A Full Bench of 5 learned Judges also took a similar view in Bajrang Rai and Others Vs. Ismail Mian and Others, . That was a case where Order 9, Rule 13 petition was dismissed for default. The approach u/s 151 was held not to be barred despite the availability of remedy of appeal because the provision for appeal in such cases was held to be illusory inasmuch as without leading further evidence, the concerned party will not be able to satisfy the appellate Court if the order of dismissal for default was an unjust one. But in view of the provision in Order 41 Rule 27, the parties would not be entitled to lead evidence as a matter of right. The invocation of inherent power was, therefore, held permissible.

Before giving our opinion on the question of law, referred to us, we would just mention three cases in which inherent power was invoked where a complaint has been rejected for non-payment of deficit Court fee. These are Damodar Prasad v. Aditya Maharaj AIR Pat 289 ; Balaram Naik and Others Vs. Krushna Kumari, and Firm Devesh Kumar Viresh Kumar, Aligarh and Others Vs. 5th Addl. District Judge, Aligarh and Others, . We do not propose to traverse the reasons given in those decisions-indeed in the Allahabad and Orissa cases, no reason has been given, and in Patna reliance has been placed on a Bench decision in Hiralal v. Jalim Singh (M.C. No. 1039 of 1964) which is not available to us; Orissa has not regarded an appeal provision to override inherent power.

On the basis of the aforesaid legal thinking it can safely be held that the existence of alternative remedy of appeal will be a har to the invocation of inherent power only if the appeal be effective or remedy, or if it were enough to meet the necessities of the situation. In a case where a plaint is rejected for non-payment of due Court fee, an appeal cannot be proper remedy, because unless it is known why the deficit could not be paid, a just decision would cot be arrived at. For this purpose, the appellate Court shall either have to take necessary evidence itself, or remand the matter. In view of strict provisions of Order 41, Rule 27 how far a case for additional evidence would be made out is difficult to say. If remand were to be thought as the proper way of disposing appeal, recourse to Section 151 would be far better way for dealing with the situation, as it would save time, money and energy of all. Instead of the trial Court examining the matter after years at the direction of the appellate authority, would it not be better if former were to do itself to advance the cause of justice? The intervening delay and expenditure and devotion of time by the appellate Court cannot be regarded to advance any cause of justice.

It may be remembered that in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, provisions in Order 39 were not regarded as a bar to grant injunction u/s 151, as Order 39 did not take care of all situations. Here too, appeal does not grant effective remedy in all situations. In Arjun Singh Vs. Mohindra Kumar and Others, , recourse to inherent power in a matter where whole gamut of situation in question was covered by Order 9 was negatived, but, to repeat, an appeal in a matter like one at hand is only an apology for remedy, What was stated in Nain Singh Vs. Koonwarjee and Others, almost clinches the issue as, according to it, where there are express provisions which would meet the necessities of the case, these should be followed, and inherst it powers should not be invoked. As already alluded, an appeal does not really meet the necessities of the case in a situation with which we are seized. Further, as stated in The Newabganj Sugar Mills Co. Ltd. and Others Vs. The Union of India (UOI) and Others, , the inherent power has its root in the necessities and its breadth is co-extensive with necessities. Let it also be stated that no question of assumption of jurisdiction not otherwise vested by law arises in entertaining such a petition by the trial Court, as Section 149 read with Section 148 confers power on a Court to extend time in its discretion to pay deficit Court fee. As such, the decision in Raja Soap Factory and Others Vs. S.P. Shantharaj and Others, would not stand in the way. The invocation of inherent power in such a case being a part of procedural tangle or wrangle (appeal or approach to the same Court?), the holding in Padam Sen and Another Vs. The State of Uttar Pradesh, that inherent power cannot create a new substantive right has no application. The view taken in Atul Krishna ( AIR 1952 Gau 149) cannot, therefore, be regarded at a good law in view of the decisions noted above.

Because of all these, we hold that in case of rejection of plaint for non-payment of due Court fee, approach u/s 151 is the betted way of achieving the ends of justice. But it has to be remembered that the power under this section is neither appellate, not akin to review; and also that what could be agitated is the cause for non-payment, and examination of the cause shown being sufficient or not. While doing so, or while exercising its discretion, the Court may undoubtedly consider whether a substantive right has accrued to the other side by the expiry of the period of limitation for filing appeal, if the approach is made after the lapse of such period.

This is all we would have said but for the invitation by the learned Counsel of both the sides to dispose of the revision on merits also as it relates to a suit filed originally in 1961. Having accepted the prayer, we heard the parties on facts too. Shri Medhi''s submission in this context is that as this Court had granted two months time to pay deficit Court fee from the date of receipt of record by the lower Court, the suit could not have been dismissed on 18.7.73, as the Counsel for the Plaintiff Petitioner was judicially informed about the matter only on 14.7.73. The period of two months cannot however be counted, in our view, from 14.7.73, as the time was to run from the date of receipt of records which seem to have been received on 16.12.73, having been despatched on 8.12.72 after the decision of this Court on 4.12.72. We are conscious that the Plaintiff would not have known unless told as to when the records were received at the lower end. But then we find an endorsement of the learned Counsel of the Plaintiff dated 6.1.73 saying "seen", on the memo relating to return of the records by this Court. This is on the reverse of page 50 of file A of the suit. This apart, the Counsel was informed on 14.7.73, that the mattes would come up for order on 18.7.73. Even if we count the period of two month from 14.7.73 the Plaintiff had not abided. Be only woke up in 1976 to contend that he was not informed about the receipt of records by anybody, not even his Counsel. Now, the order of this Court granting two months'' time having been passed on the application of the Petitioner, and the Court having ordered to send down the records immediately, there was some duty, on the part of the Petitioner also to make enquiries instead of sleeping over the matter. But nothing of this sort was done. Such a person canot be allowed the protection of revisional power which has to be exercised to further the ends of justice, and not to thwart it. The suit filed in 1961 to set aside a decree lawfully obtained in 1958 cannot be allowed to be revived when the Plaintiff has been guilty of laches. Invocation of inherent power in such a contingency will really encourage parties to abuse the process of the Court, rather than preventing such abuse.

The petition is, therefore, dismissed.