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High Court Of Orissa
P. C. Misra, J.
HARIHAR PATI - Appellant
Versus
DYETARY KHHTOI AND ETC. - Respondent
Civil Revn. 515 Of 1980
Decided On : 01/02/1984
MONEY LENDERS ACT - SECTION 18-B - ABATEMENT OF SUIT - INHERENT POWERS OF COURT - EXERCISE OF - CIRCUMSTANCES JUSTIFYING - SUIT ABATED FOR NON-FILING OF CERTIFICATE UNDER SECTION 18-B OF THE ACT - APPLICATION FOR SETTING ASIDE ABATEMENT ORDER FILED - COURT'S JURISDICTION TO ENTERTAIN - SCOPE OF ENQUIRY - NOTICE TO DEFENDANTS - NECESSITY.
Fact of the Case:
In two separate suits filed by the same plaintiff against different defendants, the trial court dismissed both suits for abatement under Section 18-B(8) of the Orissa Money-Lenders Act, 1939 (the Act) due to the plaintiff's failure to file the required certificate under Section 18-B of the Act. The plaintiff subsequently filed applications under Section 151 of the Code of Civil Procedure (the Code) to set aside the abatement orders.
Finding of the Court:
The court held that the inherent powers of the court are available to be exercised in fit cases for setting aside an order of abatement of a suit which has abated under Subsection (8) of Section 18-B of the Act. The court found that in the present cases, adequate opportunity had not been extended to the plaintiff for producing the order under Section 18-B (2) of the Act and that the trial court had not embarked upon any enquiry in this behalf, amounting to non-exercise of jurisdiction.
Issues: 1. Whether the inherent powers of the court can be exercised to set aside an order of abatement passed under Section 18-B(8) of the Act? 2. Whether the circumstances of the present cases justify the exercise of inherent powers to set aside the abatement orders?
Ratio Decidendi: 1. The court found that there is no prohibition, express or implied, in the Act for the court to exercise its inherent powers to set aside an order of abatement passed under Section 18-B(8) of the Act. The court also noted that the inherent powers of the court are very wide and are not controlled by the provisions of the Code, and that they can be exercised to prevent abuse of the process of the court and to ensure the ends of justice. 2. The court found that the trial court had not extended adequate opportunity to the plaintiff to produce the required certificate under Section 18-B of the Act and had not conducted any enquiry in this regard. The court also noted that the Act was amended by Orissa Act 54 of 1975, which came into force with effect from 22-9-75, and that the notification thereunder was not made for quite some time. In these circumstances, the court held that the trial court should have extended adequate opportunity to the plaintiff for production of the requisite certificate before holding that the suits had abated.
Final Decision: The court allowed both revisions, set aside the impugned orders in both revision applications, and held that the applications under Section 151 of the Code for setting aside the orders of abatement were maintainable. The cases were remanded to the trial court for reconsideration as to whether the circumstances of the case justify the discretion to be exercised for setting aside the orders of abatement. The court also directed that the defendants-opposite parties should be noticed and heard while deciding the misc. cases under Section 151 of the Code.
P. C. MISRA, J.
( 1 ) BOTH these revision applications involved identical questions of law and have, therefore, been heard analogously and are disposed of by this common judgment.
( 2 ) CIVIL Revision No. 514 of 1980 arises out of O. S. No. 83 of 1976-11 of the Court of the Munsif, Puri, for realisation of Rs. 1286/- from the opposite party-defendant advanced to him as loan. The defendant took several adjournments to file the written statement and when no written statement was filed, the learned Munsif ultimately post ed the case to 21-3-1977 for ex parte hearing and directed the plaintiff to file the required certificate under Section 18-B of the Orissa Money-Lenders Act, 1939 (for short, 'the Act' ). On the adjourned date, the plaintiff did not file the certificate under Section 18-B of the Act and the learned Munsif passed an order that the suit had abated. The present petitioner thereafter filed, a petition under Section 151 of the Code of Civil Procedure (for short the Code') for restoration of the suit after obtaining the certificate under Section 18-B of the Act which was registered as Misc. Case No. 130 of 1979. The learned Munsif by his order dated 16-5-1980 has rejected the petition for restoration of the suit filed under Section 151 of the Code on the ground that the application for obtaining the certificate must have been filed after the suit had abated and no relief under Section 151 of the Code is, therefore, available in the case.
( 3 ) CIVIL Revision No. 315 of 1980 arises under similar circumstances The petitioner filed O. S. No. 326 of 1976-III before the Munsif, Puri, or realisation of Rs. 1500/- which was advanced to the defendant-opposite party as loan. On 28-3-1977 the learned Munsif observed that the service of summons on the defendant was sufficient and as he did not appear or take any steps, he was set ex parte. On the said date, the learned Munsif also observed that as the plaintiff had not filed the required certificate under Section 18-B of the Act, the suit stood abated. The plaintiff on 27-2-1979 filed an application under Section 151 of the Code which was registered as Misc Case No. 129 of 1979 praying therein for setting aside the order of abatement passed on 28-3-1977. He stated that he had in the meantime obtained the certificate and had produced the same in the court. The learned Munsif on similar ground has rejected the prayer for setting aside the order of abatement.
( 4 ) THE plaintiff in both the suits is the same whereas the defendants are different. It is against the orders of the learned Munsif refusing to set aside the orders of abatement that the aforesaid two revision applications have been filed in this Court.
( 5 ) SECTION 18-B of the Act was inserted by Orissa Act 54 of 1975 and the same applies to the suit transactions in both the suits. Section 18-B provides that the State Government may, from time to time by notification, require the moneylender or money-lenders belonging to any class or carrying on business in any local area to produce before such authority and by such date, as may he specified in the said notification, all records relating to their business including documents evidencing advance of loans. Admittedly, the State Government has in its notification dated 9-7-1976 directed that all registered moneylenders carrying on business in the areas specified in the notification shall produce records relating to their business including the documents evidencing advance of loans before the respective Sub-divisional Officers within a month from the date of publication of the notification in the Official Gazette. The said notification was published in the Official Gazette on 34-7-1976. S. O. No. 83 of 1976 was filed on 15-4-1976 and, therefore, the notification and the requirements thereunder came into operation during the pendency of the suit whereas O. S. No. 326 of 1976 was filed on 23-12-1976 after the notification was operative. In both the cases, the plaintiff was re
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