The court clarified that the inherent power under Section 151 of the Civil Procedure Code cannot be invoked when the defendant fails to establish the existence of sufficient cause for non-appearance.

R. N. MISRA, C. J.

( 1 ) PLAINTIFFS in Title Suit No. 10/9 of 1974/1977 of the Court of the Subordinate judge of Bolangir are petitioners. The suit was posted for hearing to 19-4-1978, when defendant was set ex parte and ex parte trial took place. By judgment dated 24-6-1978 and decree dated 1-7-1978, the suit was disposed of finally. Defendant-State applied under Order 9, Rule 13 of Civil P. C. to set aside the ex parte decree and that application was registered as M. J. C. No. 70 of 1978. The learned Subordinate Judge came to record a finding on the basis of the evidence that defendant's absence on the date of trial was not for any sufficient cause. Yet, he held :--

". . . . . . . . . . . . Thus, even if sufficient cause has not been shown by the state-defendant-petitioner, this is a fit case where the ex parte order is to be set aside and the original suit is to be restored to file for purpose of hearing on merit, in exercise of inherent power of the court under Section 151, C. P. C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "

( 2 ) A Full Bench of this Court in the case of E. I. D. Parry Limited v. Agro Sales and Service, (1980) 50 Cut LT 419: (AIR 1980 Orissa 162) has held (at p. 165 of AIR) :-

". . . . . . . . . . . . In view of the catena of Supreme Court decisions covering the field, there can be no scope for entertaining the view accepted by the learned single Judge that even when the defendant failed to establish existence of sufficient cause for his non-appearance on the date of trial, he could obtain vacation of the ex parte decree passed against him by invoking the inherent powers. . . . . . . . . but we make it explicitly clear that Section 151 of the Code is not invocable when defendant fails to establish existence of sufficient cause for his nonappearance and this being the law, decisions to the contrary cannot be accepted as laying down the correct proposition of law. " On the finding of the learned Subordinate Judge, therefore, there was no scope to set aside the ex parte decree.

( 3 ) FACED with this situation, learned Additional Government Advocate contended that the jurisdiction of this Court in an application under Section 115 of Civil P. C. is discretionary and inasmuch as the dispute was with reference to a substantial property including a tank which could be used as an irrigation source for the public,

the discretion of this Court should not be exercised in favour of the plaintiffs. Reliance has been placed on four decisions of this Court being the cases of Narayan Nayak v. Sara Bewa, (1965) 31 Cut LT 443; bhimaraj Onkarmal Firm v. Satyanarayan Satpathy, (1970) 36 Cut LT 1152; bira Mallik v. Chaitan Mallik, AIR 1973 Orissa 102 and Dinamani Dass v. Bimbadhar Padhan, AIR 1969 Orissa 28. On the other hand, learned counsel for the petitioner relies on two decisions of this Court being the cases of dinabandhu Patnaik v. Ananta Charan Sahu, (1966) 32 Cut LT 501 and Ananda behera v. Nilakamal Behera, AIR 1975 Orissa 173. The two Orissa decisions on which counsel for petitioners relies have taken the view that if there be want of jurisdiction, the order would be a nullity and a situation arises where the jurisdiction under Section 115, Civil P. C. should be exercised. Counsel for petitioners rightly explains the circumstances in which the other four decisions of this Court relied upon by learned Additional Government Advocate have been rendered. Taking an overall picture of the matter, I am of the view that once it is found that there was no sufficient cause for the absence, the ex parte decree cannot be recalled and the court would have no jurisdiction to touch that decree. In this view of the matter, the Civil Revision must succeed and the order vacating the ex parte decree must stand vacated.

( 4 ) THE Civil Revision is accordingly allowed and the impugned order is set aside. There would be no order for costs.