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HIGH COURT OF ORISSA
G. K. Misra, J.
BAHADUR PRADHANI - Appellant
Versus
GOPAL PATEL - Respondent
Civil Revn. 92 Of 1962
Decided On : JULY 25, 1963
RESTORATION OF SUIT - SECTION 151 C. P. C. - ORDER VII, RULE 11 (C), C. P. C. - ORDER XX RULE 3 C. P. C. - ORDER XLVII, RULE 1, C. P. C. - INHERENT JURISDICTION OF THE COURT - DISCRETIONARY POWERS OF THE COURT - REVISION - INJUSTICE - COSTS - The inherent jurisdiction of the court under Section 151 C. P. C. is not limited or affected by the specific provisions of the Code. The court has the power to make orders necessary for the ends of justice. The provisions of the Code are not exhaustive and cannot contemplate all possible circumstances that may arise in future litigation. The court has the jurisdiction to recall an order which has been made earlier in the suit and which has the effect of perpetrating an injustice on a party. The court can reconsider its order refusing to grant further time to the plaintiff to make good the deficiency which was made on the assumption that the sufficient cause stated by the plaintiff was not genuine. The court can recall the order when it is found that the order had been made in the absence of materials on record, materials which are subsequently put to the Court. Once the order itself is withdrawn, then the order rejecting the plaint automatically falls. The revisional powers are discretionary and should not be exercised in a case where the exercise of the power is likely to cause injustice to a party.
Fact of the Case:
The plaintiff filed a money suit with deficit court-fee. Time was granted to pay the deficit court-fee, but the plaintiff failed to do so. The court rejected the plaint. The plaintiff filed an application for restoration of the suit under Section 151 C. P. C., which was allowed by the court. The defendant challenged the order of restoration in revision.
Finding of the Court:
The court held that the inherent jurisdiction of the court under Section 151 C. P. C. is not limited or affected by the specific provisions of the Code. The court has the power to make orders necessary for the ends of justice. The provisions of the Code are not exhaustive and cannot contemplate all possible circumstances that may arise in future litigation. The court has the jurisdiction to recall an order which has been made earlier in the suit and which has the effect of perpetrating an injustice on a party. The court can reconsider its order refusing to grant further time to the plaintiff to make good the deficiency which was made on the assumption that the sufficient cause stated by the plaintiff was not genuine. The court can recall the order when it is found that the order had been made in the absence of materials on record, materials which are subsequently put to the Court. Once the order itself is withdrawn, then the order rejecting the plaint automatically falls. The revisional powers are discretionary and should not be exercised in a case where the exercise of the power is likely to cause injustice to a party.
Issues: 1. Whether the inherent jurisdiction of the court under Section 151 C. P. C. is limited or affected by the specific provisions of the Code? 2. Whether the court has the power to make orders necessary for the ends of justice? 3. Whether the provisions of the Code are exhaustive and can contemplate all possible circumstances that may arise in future litigation? 4. Whether the court has the jurisdiction to recall an order which has been made earlier in the suit and which has the effect of perpetrating an injustice on a party? 5. Whether the court can reconsider its order refusing to grant further time to the plaintiff to make good the deficiency which was made on the assumption that the sufficient cause stated by the plaintiff was not genuine? 6. Whether the court can recall the order when it is found that the order had been made in the absence of materials on record, materials which are subsequently put to the Court? 7. Whether the revisional powers are discretionary and should not be exercised in a case where the exercise of the power is likely to cause injustice to a party?
Ratio Decidendi: 1. The inherent jurisdiction of the court under Section 151 C. P. C. is not limited or affected by the specific provisions of the Code. 2. The court has the power to make orders necessary for the ends of justice. 3. The provisions of the Code are not exhaustive and cannot contemplate all possible circumstances that may arise in future litigation. 4. The court has the jurisdiction to recall an order which has been made earlier in the suit and which has the effect of perpetrating an injustice on a party. 5. The court can reconsider its order refusing to grant further time to the plaintiff to make good the deficiency which was made on the assumption that the sufficient cause stated by the plaintiff was not genuine. 6. The court can recall the order when it is found that the order had been made in the absence of materials on record, materials which are subsequently put to the Court. 7. The revisional powers are discretionary and should not be exercised in a case where the exercise of the power is likely to cause injustice to a party.
Final Decision: The revision fails and is dismissed; but is the circumstances, parties to bear their own costs.
G. K. MISRA, J.
( 1 ) DEFENDANT is the petitioner. The facts leading to the Civil Revision may be stated in a narrow compass. Money suit No. 28 of 1961 in the Court of the subordinate Judge of Bolangir was filed on 1st August, 1961 with deficit court-fee. Time was granted to pay the deficit court-fee till 24th August 1961 in the first instance and then again till 12th September 1961. On the latter date the Court passed orders to the effect-"deficit court-fee not filed nor any requisites filed. Plaintiff is absent on repeated calls. No steps taken by him. His pleader is also not present. . Plaint is rejected for non-payment of deficit court-fee. " just a day after on 13th September 1961 the pleader for the plaintiff filed a petition for restoration of the suit under Section 151 C. P. C. The pleader Sri sidheswar Sai himself filed an affidavit solemnly affirming that though he himself took the adjourned date for 12th September 1961, due to inadvertence he entered the date in his diary for 14th September 1961. As the mistake was purely of his own, he could not take steps on 12-9-1961 and that for the ends of justice the suit should be restored to file and that the party who had paid money to the lawyer to take steps would be highly prejudiced if the suit was not restored. This application was registered as Misc. Case No. 57 of 1961. The plaintiff filed court-fee of Rs. 194/-on 11-11-1961. The application under Section 151, C. P. C. was allowed and the suit was restored to file by an order dated 21st November 1961.
( 2 ) THE defendant challenges this order dated 21-11- 1961 restoring the suit. His case is that after service of notice In the suit, he appeared on 11th January 1961 and on inspection of the record came to know the afore said state of affairs. After taking a copy of the order he has filed this Civil Revision.
( 3 ) BY an order dated 3-5-1962 this court admitted the Civil Revision directing that the question of limitation would be taken up at the time of hearing. Mr. Misra concedes that no question of limitation arises as the Civil Revision has been filed within 90 days from the date of the knowledge of the defendant of the restoration order.
( 4 ) MR. Panda contends that the order of restoration under Section 151, C. P. C. is without jurisdiction. This argument is based on, Rameshwardhari Singh v. Sadhu saran, AIR 1923 Pat 354 and Saratchandra Sen v. Mritun-jay, AIR 1935 Cal 336 (2 ).
( 5 ) THE basis of the aforesaid view requires examination. The order dated 12-91961 rejecting the plaint is one under Order VII, Rule 11 (c), C. P. C. which lays down that the plaint shall be rejected where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so. A decree shall be deemed to include the rejection of a plaint under Section 2 (2) C. P. C. There can be no dispute that the order of the learned Subordinate Judge dated the 12th September 1961 rejecting the plaint is a decree.
( 6 ) THE aforesaid decree is appealable and admittedly no appeal had been filed. Order XX Rule 3 C. P. C. prescribes that a judgment once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review. In this case there is no question of alteration or addition under Section 152 as there are no clerical or arithmetical mistakes in the order dated 12-9-1961 arising from any accidental slip or omission. No review application has been filed under order XLVII, Rule 1, C. P. C.
( 7 ) THE position that emerges is that though an appeal lies against the decree, an appeal has not been filed. Though a review application also lay to alter the judgment, none such has been filed. On the basis of the aforesaid authorities, it is contended by Mr. Panda that it is not open to the plaintiff to apply for restoration of the suit under Section 151, C.
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