Janardan Sahai, J.@mdashThis Is an application for setting aside of an order dated 30.9.2004, rejecting the memorandum of second appeal. The Stamp Reporter had given a report that the memorandum of appeal was defective as the substantial questions of law were not framed therein and the valuation of the suit and appeal was not disclosed. It appears that on 11.8.2004 two weeks time was granted to the appellants to remove the defects. The defects however were not removed and the case was listed on 30.9.2004. On that date neither the counsel for the appellants appeared nor the defects had been removed. The Court then passed the order dated 30.9.2004 rejecting the memorandum of second appeal.
2. In the present application it is stated that the case was not marked on the cause list and the appellant''s counsel could not therefore appear and even the defects could not be removed. A counter-affidavit has been filed by the respondents in which the stand is that the counsel of the respondents had informed the appellants'' counsel about the court''s order dated 11.8.2004, granting time to remove the defects. A supplementary-affidavit has been filed today by the appellant in which it is stated that on receiving the letter of the respondents'' counsel the appellants'' counsel had sent a letter to the appellants seeking information about the valuation of the appeal but the said letter was not delivered to the appellants and consequently the defects could not be removed for want of information of the valuation of the suit and of the appeal. The copy of the supplementary-affidavit has been served upon Sri Radhey Shyam, learned Counsel for the respondents and he states that on facts he does not want to file any reply controverting the stand taken in the supplementary-affidavit.
3. The submission of Sri Radhey Shyam is that the application for recall of the order dated 30.9.2004 is itself not maintainable as it was the memorandum of appeal, which was rejected and Order XLI, Rule 19, C.P.C. under which provision the application has been filed is not applicable to such an order as the appeal has not been admitted and the only remedy the applicant has is under Order XLVII. Rule 1 of the C.P.C. to file a review. In support of his contention reliance is placed upon the decision of the Patna High Court in Sirdar Singh and Ors. v. F.F. Christian AIR 1920 Pat 608. It was held in that case that an order rejecting the memorandum of appeal on the ground that it is insufficiently stamped, is open to review under Order XLVII and no application for restoration of the appeal can in such a case be made under Order XLI, Rule 19, C.P.C. Sri Radhey Shyam also placed reliance upon Suraj Pal Pandey and Ors. v. Uttim Pandey and Ors. AIR 1922 Pat 281. In this case it was held that an order rejecting the memorandum of appeal for failure to pay deficit court fee Is a decree and that no application for restoration under Order XLI, Rule 19, C.P.C. is maintainable. It is to be noted that the Patna High Court in neither of the aforesaid cases noticed the provisions of Section 151, C.P.C. The Court in exercise of its inherent power and to do justice can always pass orders, which will promote the cause of justice.
4. Learned Counsel for the appellants placed reliance upon the Division Bench decision of this Court in
5. It is submitted by Sri Radhey Shyam that as the Court has power of review it does not have inherent power u/s 151, C.P.C. Section 151, C.P.C. it is said is applicable when another remedy is not available. In support of this contention Sri Radhey Shyam relied upon the decision of the Apex Court in
6. The basis of the submission of Sri Radhey Shyam that the provisions of Order XLVII, Rule 1 are applicable to such a case are the two decisions of the Patna High Court already referred to. Our Court, however, has taken the view in
It cannot in our opinion, be said that the Court had no jurisdiction to recall an order which it had made earlier in the suit. A Court always has power to recall an order, which had the effect of perpetrating an injustice on a party. The order, which was recalled in this particular case was based on an earlier order, namely, the order refusing to grant further time to the plaintiff to make good the deficiency. That order was made on the assumption that the plaintiffs illness was not genuine. It was open to the Court, in our view, to reconsider the position when material was placed before it which showed clearly that the contention of the plaintiff that he was ill was substantially true....
The learned Judges then referred to the earlier decisions and said : "It has been held in this Court that an order of rejection of a plaint can be set aside under the provisions of Section 151, C.P.C. This has been so held by Allsop, J., in
7. The situation, which exists in the present case is not one to which Order XLVII, Rule 1, C.P.C. may in terms strictly apply. Rather analogy can be made to an order rejecting a plaint on the ground that Court fees was not paid or to the dismissal of the case under Chapter XII, Rule 4 of the Rules of the Court and in these situations our Court has taken the view that an application u/s 151, C.P.C. is maintainable. The order of this Court sought to be set aside does not suffer from any error on the face of the record. The case of the appellants is that they were prevented by sufficient cause from appearing in the case and correcting the defects, as the case was not marked in the cause list. It also appears that an application has since been filed on 7.9.2005, for correcting the memorandum of appeal by adding the substantial questions of law, which have been framed therein and also disclosing the valuation. As the case was not marked on the cause list by an inadvertent mistake the appellants have made out a valid ground for setting aside the order rejecting the memorandum of appeal. It is well settled that technicalities should not come in the way of the Court doing justice. The decision of the Apex Court in Ram Shanker Bhattacharjee''s case is distinguishable, as I have already said that Order XLVII, Rule 1, C.P.C. cannot be said to be an express provision meant to cover the situation in the present case.
8. Sri Radhey Shyam placed reliance upon Chapter XI, Rule 8 of the Rules of Court. The said rule reads as under :
8. Effect of non-removal of defect, -- Every defective application or memorandum of appeal or objections received under the last preceding Rule shall be listed before the Court for order, immediately after the defect has been removed and where the defect has not been removed within the time allowed by the Court, immediately after the expiry of such time. In the latter event it shall be rejected unless the Court on a written application for sufficient cause shown decides to grant further time.
9. No doubt the defects had not been removed when the case was listed and no application as contemplated in the rule seeking time to correct the defects for sufficient cause shown had been made but as we have seen the reason for the inability of the counsel to appear was the fact that the case had not been marked in the cause list. In the circumstances Chapter XI, Rule 8 of the Rules of the Court cannot be read as to take away the power of the Court to do justice. In Dwarika Prasad''s case (supra) this Court observed "To recall an order in such circumstances is not doing indirectly what is prohibited directly but proceeding further from a stage where the operation of rule comes to an end."
10. The application for restoration has been filed under Order XLI, Rule 19, C.P.C. read with Section 151, C.P.C. Sri Radhey Shyam submitted that Order XLI, Rule 19, C.P.C. is not applicable to the case, as the appeal had not been admitted. True it is that an order rejecting the memorandum of appeal is not one of dismissal of an appeal in default, therefore, the provision of Order XLI, Rule 19, C.P.C. are not applicable but the application has also been filed u/s 151, C.P.C. which according to the view already expressed by me above applies to the case.
11. In the circumstances the order rejecting the memorandum of appeal passed by me on 30.9.2004 is set aside. As the case was not marked on the cause list the order rejecting the memorandum was not passed in the knowledge of the appellants. The explanation for the delay in filing the application is sufficient. The delay is condoned. The appeal is restored to its number. The appeal may be listed before the appropriate Bench.
