The inherent powers of the court cannot be invoked to set aside an order passed under Order 8, Rule 5 of the CPC, as this would amount to setting at naught the express provisions of the Code.

Headnote:
ORDER 8 RULE 5 CPC - EX-PARTE ORDER - ORDER 9 RULE 7 CPC - INHERENT POWERS OF THE COURT - SUMMARY SUIT - ADMISSION OF WRITTEN STATEMENT AFTER ORDER UNDER ORDER 8 RULE 5 CPC - SCOPE AND APPLICABILITY OF ORDER 8 RULE 5 CPC - COURT'S DISCRETION TO REQUIRE PROOF OF ADMITTED FACTS - DISTINCTION BETWEEN EX-PARTE ORDER AND ORDER UNDER ORDER 8 RULE 5 CPC - INVOCATION OF INHERENT POWERS TO SET ASIDE ORDER UNDER ORDER 8 RULE 5 CPC.
Fact of the Case:

The defendant in a suit for possession of premises applied for time to file a written statement on four occasions. On the fourth occasion, the plaintiff opposed the application and requested the court to proceed under Order 8, Rule 5 of the Code of Civil Procedure (CPC) for not filing the written statement. The court rejected the defendant's application and ordered the plaintiff to prove his case by affidavits. Subsequently, the defendant filed an application under Order 9, Rule 7 of the CPC to set aside the ex-parte order. The trial court allowed the application and set aside the order under Order 8, Rule 5, allowing the defendant to file a written statement.
Finding of the Court:

The High Court held that the order passed by the trial court on 13-4-1981 was not an ex-parte order but was passed under Order 8, Rule 5 of the CPC. The court further held that the trial court erred in setting aside the order under Order 8, Rule 5 by invoking its inherent powers under Order 9, Rule 7 of the CPC.
Issues: 1. Whether the order passed by the trial court on 13-4-1981 was an ex-parte order or an order passed under Order 8, Rule 5 of the CPC? 2. Whether the trial court erred in setting aside the order under Order 8, Rule 5 by invoking its inherent powers under Order 9, Rule 7 of the CPC?
Ratio Decidendi: 1. The court held that the order passed by the trial court on 13-4-1981 was not an ex-parte order because the defendant had appeared before the court on all four occasions when the case was called for hearing and had applied for time to file a written statement. The court further held that the trial court had proceeded under Order 8, Rule 5 of the CPC, as evidenced by the fact that it had ordered the plaintiff to file affidavits to prove his case. 2. The court held that the trial court erred in setting aside the order under Order 8, Rule 5 by invoking its inherent powers under Order 9, Rule 7 of the CPC. The court held that the inherent powers of the court cannot be invoked to set aside an order passed under Order 8, Rule 5 of the CPC, as this would amount to setting at naught the express provisions of the Code.
Final Decision: The High Court set aside the order passed by the trial court on 18-7-1981 and remanded the case to the trial court for disposal of the suit according to law.

JUDGMENT - Palshikar P.G., J.-The applicant-plaintiff filed a suit on 20-6-1980 for possession of certain premises situated at Plot No. 72 in Ward No. 31 at Nagpur. The defendant was in possession of these premises as a lessee of the open plot. Summons was issued to the defendant and he along with his counsel appeared before the trial Court on 12-9-1980 which was the next date fixed for hearing. On that day, the defendant applied for time to file written-statement and the same was granted. The case was then adjourned So 13-10-1980. On that date again another application for grant of time for filing written-statement was made and the same was also granted. Case was then adjourned to 11-11-1980. Yet a third application for time to file written-statement was moved before the trial Court and it was also granted. Then the case was fixed on 26-11-1980. In the meanwhile it appears that without filing a written-statement, the defendant raised a plea under sec-tion 22(1)(a) of the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971, praying for dismissal of the suit. The case thereafter went on and on 13-3-1981, the defendant filed a purshis that he did not want to press his application for dismissal of the suit. Case was then adjourned to 13-4-1981. On that date again the defendant came up with an application for time to file written-statement. This application was resisted by the plaintiff and the plaintiff prayed that the application for grant of time be dismissed and the suit be decreed under Order 8, Rule 5 of the Code of Civil Procedure as no written-statement was filed. The Court rejected the defendant's application for grant of time and passed an order on the plaint that the defendant did not file written-statement and the plaintiff was required to prove his case by affidavits. The case was adjourned to 30-4-1981. It appears that in the meanwhile on 20th April, 1981 the defendant filed an application under Order 9, Rule 7 of the Code of Civil Procedure for setting aside the ex-parte order. That application was opposed by the plaintiff. However, the learned Judge found that the order passed on 13-4-1981 was an ex-parte order and since sufficient cause was shown, the said order was set aside and the defendant was allowed to file his written statement and the same was admitted on record. Against that order, the present revision application has been filed.

2. Shri R. D. Chaudhary, the learned counsel for the applicant, contended that the order passed on I3-4-198I was not an ex-parte order. In fact, the Court had proceeded under Order 8, Rule 5 of the Code of Civil Procedure for pronouncement of judgment as no written statement was filed by the defendant. According to him, the application filed by the defendant under section 151 of the Code of Civil Procedure invoking the inherent powers of the Court was not maintainable and the Court could not undo what it has done on 13-4-1981. In other words, Shri Chaudhari contended that once the Court proceeds under Order 8, Rule 5 to pronounce judgment as the defendant did not file his written-statement, it cannot allow the defendant to file a written-statement on the ground that the order passed earlier was an ex-parte order. He submitted with reference to the endorsement that the order in question can never be construed as an ex-parte order and the learned Judge was Wrong in treating it as one.

3. On behalf of the non-applicant, Shri Shareef, the learned counsel,

submitted that the order, which was passed by the learned Judge on 13-4-1981, was an ex-parte order and the same could be set aside on a sufficient cause being shown, under Order 9, Rule 7 of the Code of Civil Procedure. He submitted that merely because the expression “ex-parte order” does not appear anywhere, it is not decisive of the matter and the substance has to be seen. He then relied upon the circumstances and contended that the learned Judge was right in setting aside the e

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1981 Supreme(Bom) 304

IN THE HIGH COURT OF BOMBAY(Nagpur)Palshikar P.G., J.Menomal Kushaldas Sindhi .... Applicant.VersusGangadhar Pannalal Rai .... Non-applicant.C. Revn. Appln. No. 489 of 1981 decided on 23-11 -1981. 1982 Advocate appeared:For applicant-R. D. Choudhary,For non-applicant-M. I. Shareef.

The inherent powers of the court cannot be invoked to set aside an order passed under Order 8, Rule 5 of the CPC, as this would amount to setting at naught the express provisions of the Code.

IN THE HIGH COURT OF BOMBAY
(Nagpur)
Palshikar P.G., J.
Menomal Kushaldas Sindhi .... Applicant.
Versus
Gangadhar Pannalal Rai .... Non-applicant.
C. Revn. Appln. No. 489 of 1981 decided on 23-11 -1981. 1982
Advocate appeared:
For applicant-R. D. Choudhary,
For non-applicant-M. I. Shareef.