Back
High Court Of Himachal Pradesh
D.P.SOOD
PUNJAB NATIONAL BANK - Appellant
Versus
F.N.GOLD HEAD LTD. - Respondent
O.M.P. No. 442 of 1992 in C.S. No. 81 of 1990
Decided On : 12/03/1992
CIVIL PROCEDURE - ORDER 10, RULES 1, 2 AND 4 - EXAMINATION OF PARTIES - COUNSEL DULY AUTHORISED AND INSTRUCTED - EXAMINATION OF COUNSEL BEFORE SUMMONING PARTY - PALPABLE ERROR - RECALL OF ORDER - INHERENT JURISDICTION - SECTION 151, C.P.C.
Fact of the Case:
The defendants failed to appear before the court despite being summoned for recording their statements under Order 10, Rules 1 and 2, C.P.C. The court struck off their defense. The defendants filed an application to recall the order, arguing that the court erred in not examining their counsel before summoning them.
Finding of the Court:
The court held that the impugned order was palpably erroneous as the court failed to examine the counsel for the defendants before summoning them. The court also held that it had the inherent jurisdiction to recall the order under Section 151 of the C.P.C.
Issues: 1. Whether the court erred in not examining the counsel for the defendants before summoning them? 2. Whether the court had the inherent jurisdiction to recall the impugned order?
Ratio Decidendi: 1. Order 10, Rules 1, 2 and 4 of the C.P.C. provide that the court may examine the parties or their counsel to get obscure points cleared or to obtain admissions. If the counsel is unable or unwilling to answer the questions, the court may summon the party in person. 2. The court has inherent jurisdiction to recall a palpably erroneous order under Section 151 of the C.P.C.
Final Decision: The court recalled the impugned order and substituted it with an order directing the defendants to pay costs of Rs. 1000/- to the plaintiff-respondent.
1. The suit is for the recovery of rupees sixty-three lacs and odd. Written statement had been filed by the applicants-defendants Nos. 1 to 5 on whose behalf the instant application has been filed for re-calling the order dated 9th June, 1992.
2. Some of the essential facts for consideration of this application are that this Court feeling the necessity of calling for the defendants for recording the statements of defendants Nos. 3 to 5 and 7 passed an order on 18th May, 1992 for their personal appearance before this Court on 8th June, 1992. Those defendants were represented by their counsel Mrs. Ranjana Parmar, whose power of attorney is on the record. The aforesaid defendants failed to appear on the said date and instead of waiting for their arrival, the ease was adjourned to 9th June, 1992. It is pertinent to note that an all the three date referred to above, Mrs. Ranjana Parmar, the counsel far the aforesaid defendants did appear before this Court.
3. In order to appreciate the respective contentions of the parties, now it is just necessary to notice the interim orders that led to the striking off the defence of the applicants. Their verbatim reproduction is as follows:- 18-5-1992 : Present : Shri R. L. Sood, counsel for the plaintiff. Mrs. Ranjana Parmar counsel for defendants Nos. 1 to 5. At the time of framing of issues it has been felt essential that defendants Nos. 3 to 5 and 7 appear in person for recording their statements under O. 10, R. 1, C.P.C. on 8th June, 1992. Sd/- (D. P. Sood) Judge. 18-5-1992 : Present : Shri R. L. Sood, counsel for the plaintiff. Mrs. Ranjana Parmar counsel for defendants Nos. 1 to 5. Learned counsel for defendants submit that defendants have already started from Delhi and they are on their way to Shimla as per information given to her. She requests that the case be listed at 2.00 p.m. In the circum-stances it would be better in case the case is listed for 9-6-1992 in order to avoid any further complication. Sd/- (D. P. Sood) Judge. 9-6-1992 : Present : Shri R. L. Sood, counsel for the plaintiff. Mrs. Ranjana Parmar. Advocate for defendants Nos. 3, 4 and
7. She also submits that she had filed power of attorney @page-HP81 in the Registry on behalf of defendants Nos. 1 and 2. Shri Ravi Bakshi, Advocate for defendant No. 10. On 18th May, 1992 defendants 3 to 5 and 7 were directed to appear on 8th June, 1992 for the purpose of recording their statements under O. 10, Rr. 1 and 2, C.P.C. Later on 8th June, 1992, Mrs. Ranjana Parmar counsel for defendants 1 to 5 apprised this Court that defendants Nos. 3 to 5 have already started from Delhi on 7th June, 1992 and she re-quested the case to be listed at 2.00 p.m. However, considering the unusual circum-stances, the case was listed for today. Even today said defendants as also defendant No. 7 are not present. She has also stated at the bar that she has already apprised her clients in writing as also telephonically but despite that they are not present. None of these defendants are present des-pite the above order, as such, their defence is ordered to be struck off. Let the case be listed for issues now. Dasti copy on usual terms. Sd/- (D. P. Sood) Judge.
4. The grounds for recalling of this order dated 9th June, 1992 as per the arguments advanced by the learned counsel for the applicants are; firstly, the order is illegal inasmuch as this Court did not put material questions relating to the suit to the applicants counsel Mrs. Ranjana Parmar before directing the appearance of the aforesaid defendants on their behalf; secondly, that in view of the claim made by the plaintiffs, this Court has to do substantial justice and this Court being the Court of Record, has got the plenary jurisdiction to correct its order which has been passed by mistake; and thirdly, that there is no express provision in the Code of Civil Procedure either by way of appeal, revision or review and as such this Court is amply empowered to recall the impugned order under S
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
