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GAUHATI HIGH COURT
M. SADANANDASWAMY, C.J., JJ.
Choukhanybag Tea Company Pvt.Ltd.and others -Appellant
Versus
Prabhu Dayal Lohia and others -Respondent
Civil Revn. No. 193 of 1975
Decided On : 09-02-1978
CIVIL PROCEDURE CODE - SECTION 115 - SCOPE - ERRORS OF LAW - JURISDICTION - NATURAL JUSTICE - ORDER 9 RULE 9 - SERVICE OF NOTICE - IRREGULARITY - RESTORATION OF SUIT - JURISDICTION OF COURT - INHERENT POWERS - SECTION 151 - VAKALATNAMA - REQUIREMENTS - SUB-RULE (6) OF RULE 784 OF CIVIL RULES AND ORDERS - INTERPRETATION.
Fact of the Case:
The suit was filed for specific performance of an agreement of lease dated 15-10-1969 said to have been executed by defendants 1, 2, 6, 7, 8, 9 and 10 in favour of the plaintiff and for compensation of Rs. 40,000/-, or in the alternative for Rs. 2,00,000/- as well as for refund of Rs. 6850/- said to have been paid to defendant No. 1. The suit had been posted for hearing on 4-6-75. On that date, the plaintiff was absent and had not taken any steps. The suit was therefore dismissed. Later on the same day an application was filed on behalf of the plaintiff, being petition No. 1487/75, by respondent 9. On that application, the Court ordered that the record will be put up in the presence of both the parties on 5-6-75. The order sheet of 5-6-75 states that the learned Advocates of both the parties were heard and 6-6-75 was the date fixed for orders. On 6-6-75 the order sheet states that the Advocates for both the parties were heard. In the course of its order, the Court observed that immediately after the order of dismissal of the suit had been passed, the revival petition had been submitted; that the Advocate for the plaintiff was away from Dibrugarh and was therefore not present. It also observed that the Advocate before going out should have intimated to the plaintiff and have taken steps and that for the fault of the Advocate, the plaintiff should not suffer. It, therefore, purporting to exercise its power under Section 151 of the Code of Civil Procedure, restored the suit on payment of cost of Rs. 60/-. It is against that order that the present revision petition has been presented.
Finding of the Court:
The Court held that the lower Court had jurisdiction to entertain the application for restoration of the suit under Order 9 Rule 9 of the Civil Procedure Code, and that the irregularity in the presentation of the application could not be said to be fatal to the presentation of the application. The Court further held that the order of the lower Court could not be interfered with in revision under Section 115 of the Civil Procedure Code, as the error of law committed by the lower Court did not relate to the jurisdiction of the Court.
Issues: 1. Whether the lower Court had jurisdiction to entertain the application for restoration of the suit under Order 9 Rule 9 of the Civil Procedure Code? 2. Whether the irregularity in the presentation of the application could be said to be fatal to the presentation of the application? 3. Whether the order of the lower Court could be interfered with in revision under Section 115 of the Civil Procedure Code?
Ratio Decidendi: 1. The Court held that the lower Court had jurisdiction to entertain the application for restoration of the suit under Order 9 Rule 9 of the Civil Procedure Code, as the Assam amendment to Rule 9 of Order 9, C.P.C., sub-rule (2) is renumbered as sub-rule (3) and after the words "notice of the application", the words "with a copy thereof (or concise statements as the case may be)" have been inserted, and the following sub-rule (2) has been inserted : "(2) The plaintiff shall, for service on the opposite parties present along with his application under this rule either - (i) as many copies thereof on plain paper as there are opposite parties; or (ii) if the Court by reason of the length of the application or the number of opposite parties or for any other sufficient reason grants permission in this behalf, a like number of concise statements." 2. The Court held that the irregularity in the presentation of the application could not be said to be fatal to the presentation of the application, as the Court had entertained the application and taken action on it, and that the irregularity could have been rectified by the Court if it had refused to entertain the application. 3. The Court held that the order of the lower Court could not be interfered with in revision under Section 115 of the Civil Procedure Code, as the error of law committed by the lower Court did not relate to the jurisdiction of the Court. The Court relied on the decision in Pandurang Dhondi Chougule v. Maruti Hari Jadhav (AIR 1966 SC 153), which held that an erroneous decision on a question of law reached by the subordinate Court which has no relation to the question of jurisdiction of that Court cannot be corrected under Section 115.
Final Decision: The revision petition was dismissed with costs.
Petitioner No. 1 is defendant 1 and petitioners Nos. 2 to 6 are defendants 6 to 10. Respondent No. 1 is the plaintiff. Respondents 2 to 8 are the other defendants. Respondent 9 is the Advocate who appeared on behalf of the plaintiff in the lower Court. This revision petition is directed against the order dated 6-6-1975 passed by the Assistant District Judge, Dibrugarh and Lakhimpur in Title Suit No. 5 of 1973 restoring the suit which had been dismissed for default on 4-6-1975.
2. The suit was filed for specific performance of an agreement of lease dated 15-10-1969 said to have been executed by defendants 1, 2, 6, 7, 8, 9 and 10 in favour of the plaintiff and for compensation of Rs. 40,000/-, or in the alternative for Rs. 2,00,000/- as well as for refund of Rs. 6850/- said to have been paid to defendant No. 1.
3. The suit had been posted for hearing on 4-6-75. On that date, the plaintiff was absent and had not taken any steps. The suit was therefore dismissed. Later on the same day an application was filed on behalf of the plaintiff, being petition No. 1487/75, by respondent 9. On that application, the Court ordered that the record will be put up in the presence of both the parties on 5-6-75. The order sheet of 5-6-75 states that the learned Advocates of both the parties were heard and 6-6-75 was the date fixed for orders. On 6-6-75 the order sheet states that the Advocates for both the parties were heard. In the course of its order, the Court observed that immediately after the order of dismissal of the suit had been passed, the revival petition had been submitted; that the Advocate for the plaintiff was away from Dibrugarh and was therefore not present. It also observed that the Advocate before going out should have intimated to the plaintiff and have taken steps and that for the fault of the Advocate, the plaintiff should not suffer. It, therefore, purporting to exercise its power under Section 151 of the Code of Civil Procedure, restored the suit on payment of cost of Rs. 60/-. It is against that order that the present revision petition has been presented.
4. It is submitted on behalf of the petitioners that there was no proper application in the eye of law before the lower Court and that therefore the lower Court had no jurisdiction to restore the suit; the lower Court could not exercise its inherent powers under Section 151 C.P.C. in view of the specific provisions of law providing a remedy for such contingency, namely, O.9 R.9 C.P.C.; the Assam amendment to O.9 R.9 was intended to make it obligatory on the applicant to serve copies of the application on the opposite parties and since no such copies were served on the petitioners or their Advocates in the lower Court, the lower Court had no jurisdiction to allow the application. In any case, the petitioners got vested with certain rights when the suit was dismissed and they could not be deprived of those rights without their being afforded opportunity of being heard and, therefore, the principles of natural justice have been violated and that the order of the lower Court is therefore without jurisdiction.
5. As against these contentions it is urged on behalf of respondent 1-plaintiff that the application presented in the lower Court was maintainable and though it can be said to be defective, the defect was only curable since at the worst it was only an irregularity. Even if Section 151 C.P.C. is not applicable, the lower Court had jurisdiction to restore the suit under O.9 R.9 of the C.P.C.; since there was no lack of jurisdiction, the order of the lower Court cannot be interfered with under Section 115 C.P.C. In any case, in the circumstances of the case no injustice can be said to have been caused to the petitioners by the order restoring the suit, it is within the discretion of this Court whether to interfere or not, even if it is a case which can be interfered with under Section 115 C.P.C. and that this is not a fit case for interference.
6. The application prese
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