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1927 Supreme(Nagpur) 217
HIGH COURT OF NAGPUR
Prideaux
SABA – Appellant
Versus
DAYARAM AND ANR – Respondent
Decided on : 01-11-1927
The judgment establishes that a Court cannot use its inherent powers to extend the period of limitation prescribed by law and cannot help a party who has failed to take advantage of the remedy within the prescribed period.
Headnote:
Section 115 - Civil Procedure Code - Limitation of Court's Inherent Powers
Fact of the Case:
The plaintiffs filed a civil suit which was dismissed due to their absence. They later applied for the suit to be restored, but the application was made after the prescribed period of limitation.
Finding of the Court:
The Court held that it did not have the power to set aside the dismissal using its inherent powers under Section 151, Civil P.C., as the application was made after the prescribed period of limitation.
Issues: The main issue was whether the Court had the authority to set aside the dismissal of the suit under its inherent powers despite the application being made after the prescribed period of limitation.
Ratio Decidendi: The Court determined that when a definite period of limitation is provided by law, the Court is not entitled to extend such period by purporting to act under Section 151, Civil P.C. It emphasized that Section 151 cannot be invoked to help a party who has a remedy provided by law and who has failed to take advantage of that remedy within the period of limitation prescribed.
Final Decision: The Court set aside the lower Court's order restoring the case to file and dismissed the application. The non-applicants were ordered to pay their own and the applicant's costs.
Prideaux, A J C—This is an application under Section 115, Civil P.C. The non-applicants filed Civil Suit No. 217 of 1926 in the Small Cause Court, Balaghat. On 13fch December 1926 the plaintiffs were absent and the suit was dismissed under Order 9, Rule 8, Civil P.C. On the 21st January this year the plaintiffs applied that their suit be restored to file and the dismissal be set aside. The Court restored the suit to file under the powers given it by Section 151, Civil P. C.
2. Now, it is clear that the plaintiffs were entitled under Rule 9 to apply for an order to set the dismissal aside, and if they could satisfy the Court that there was sufficient cause for their non-appearance when the suit was called for hearing the Court could make an order setting aside the dismissal; but under Article 163, Lim. Act, the period of making such an application is limited to 30 days. Here, though the case was dismissed on 13th December 1926, the application was not made until the 21st January 1927. Section 5, Lim. Act, has not been made applicable to an application under Order 9, Rule 9, and therefore that section will not apply to the present case. I am clearly of opinion that, where a definite period of limitation has been provided by law within which action must be taken, a Court is not entitled to extend such period by purporting to act under Section 151, Civil P.C. There is authority for this view : see Ajodhya Mahton v. Phul Kuer, 1922 AIR(Pat) 479. Section 151, Civil P.C., cannot be invoked to help a party who has a remedy provided by law and who has failed to take advantage of that remedy within the period of limitation prescribed. In the present case the Court had no power to set aside the dismissal in the exercise of its inherent powers. I therefore set aside the lower Court's order restoring the case to file.
3. The non-applicants will pay their own and the applicant's costs here and in the lower Court. I fix pleaders' fees at Rs. 15.
Final Result : Dismissed
