Joseph Kuruvilla vs Official Liquidator

T.C. Raghavan, J.—These petitions have been placed before a Division Bench by Narayana Pillai J., since Raman Nayar J. (as he then was) doubted in Vallabhu Rama Raja v. Ramakrishnan (C.P. No. 54 of 1969) the correctness of the decision of Krishnamoorthy Iyer J. in Kunhali Beary v. Sathanika Narayanan (1968 KLT 959) : 1968 KLT 959. 1968 K.L.J. 837. The common petitioner in these petitions filed two copy applications for certified copies of a judgment pronounced by this Court on 2nd April 1969 for filing appeals to the Supreme Court. The applications were filed on 5th April; and they mentioned the date of disposal as 3rd April instead of 2nd April. On 28th October 1969, the Copying Section put up a notice that the date of disposal mentioned in the applications was not correct and that the same should be corrected within three days. This was not noticed by the clerk of the advocate of the petitioner by oversight till 6th November: and on the next day, two other copy applications were filed in continuation of the earlier applications. Thereafter, the Copying Section dismissed the earlier applications on 3rd December and issued certified copies on the later applications. Since the later applications were not treated as the continuation of the earlier applications, the present petitions have been filed with prayers either to restore the earlier applications or to treat the later applications as the continuation of the earlier applications, since, otherwise, the proposed appeals will be barred. When the petitions came up for hearing, the decision of Krishnamoorthy Iyer J. in Kunhali Beary''s case was pointed out, as well as the observation of Raman Nayar J. that he was "loth to think that the court has not the inherent jurisdiction to order restoration in cases of this nature" in Vallabha Rama Raja''s case. And the petitions were then referred to a Division Bench.

Three decisions of the Madras High Court were considered by Krishnamoorthy Iyer J.; and they are Ramanuja Iyengar v. Narayana Iyengar (I.L.R. 18 Mad 374), a Division Bench ruling, S. Berumull Sowcar Vs. P. Velu Gramany, by Patanjali Sastri J. and G. Hari Prasad v. The Chief Conservator of Forests, Madras ( (1958) 2 Mad LJ 552) by Rajagopalan J. Krishnamoorthy Iyer J. was of opinion that the aforesaid three decisions were not applicable to the case before him--a case like the petitions before us. The earliest Madras decision in Ramanuja Iyengar''s case arose under rule 129 of the Madras Civil Rules of Practice, where a subordinate court restored a copy application and issued certified copies. On those certified copies, an appeal was filed; and objection was taken before the appellate court that the appeal was out of time on the ground that the subordinate court had no jurisdiction to restore the copy application. This contention was rejected by Best and Subramonia Iyer JJ. In the next decision arising in similar circumstances, Patanjali Sastri J. followed the earlier Division Bench ruling; and in the third decision in Hari Prasad''s case, Rajagopalan J. considered the aforesaid two decisions and two more decision (which we shall come to by and by) and followed them. In the case before Rajagopalan J. a writ petition was dismissed, against which the petitioner wanted to file an appeal. His copy application was dismissed for default; and a petition for restoring the same was filed. It was opposed contending that in such a case the High Court had no jurisdiction to restore the copy application. The learned Judge then considered the entire question in detail and restored the application.

Krishnamoorthy Iyer J. has stated in Kunhali Beary''s case in considering Ramanuja Iyengar''s case:

The said decision is no authority for the position that an application for copy dismissed for default can be restored u/s 151 C.P.C. In G. Hari Prasad Vs. Chief Conservator of Forests, Madras and Another, Rajagopalan J. was dealing with rule 5 of Order 11 of the Madras Original Side Rules which contains a specific provision for restoration and cannot therefore help the petitioner. There is no specific provision for restoration of such application in the rules framed by the High Court and I do not think it possible to invoke Section 151 C.P.C.

We venture to state that this observation of the learned Judge is not correct, for Rajagopalan J. has stated at page 554 of the reports in Hari Prasad''s case:

The absence of any specific rule which provides for the dismissal of an application for copies for default of compliance with the directions issued by the High Court to furnish stamp papers called for, cannot, in my opinion, affect the principle to apply in deciding whether the High Court on its Appellate Side has jurisdiction to restore to file an application that was dismissed. The inherent jurisdiction of the High Court is saved among others by Article 225 of the Constitution.

Raman Nayar J. has also indicated this in Vallabha Rama Raja''s case. Of course, Rajagopalan J. has pointed out that the High Court (for that matter, any court) should, in a case where, due to the default, limitation for the purpose of appeal has expired, issue notice to the other side and consider the question of restoration of the copy application on principles analogous to those on which an application u/s 5 of the Limitation Act will be dealt with.

Rajagopalan J. has considered the question in some detail; and the learned Judge has observed at page 555 of the reports:

There is no specific provision in the Civil Rules of Practice for the Court to restore to the file an application for copies that had been dismissed for default of compliance with a notice which called for the deposit of the required stamp papers.

Rule 129 of the Madras Civil Rules of Practice is before us; and it contains no provision for restoration of a copy application dismissed for default. And Rajagopalan J. has also stated:

Though, as I pointed out earlier, rule 129 of the Civil Rules of Practice does not expressly provide for restoration to file of applications dismissed for default, it should be taken as well-settled now that the Courts, to which rule 129 applies, have jurisdiction to order such a restoration.

At page 554 of the reports, the learned Judge has observed further:

As I said, it should be taken as well-settled now that the Subordinate Courts which are governed by rule 129 among others of the Civil Rules of Practice can, in the exercise of the inherent jurisdiction vested in them, restore to file applications for copies which had been dismissed for default, for example, for the failure to comply with the requirement to furnish the stamp papers within the time allowed.

Therefore, the position is this. Under rule 129 of the Civil Rules of Practice there is no provision for restoring a copy application dismissed for default. Still, the Madras High Court has held that courts to which rule 129 applies have inherent jurisdiction u/s 151 of the CPC to restore such an application dismissed for default. In fact, Rajagopalan J. has said so at page 553 of the reports:

It is apparently the inherent jurisdiction of the Court saved by section 151, CPC that could be invoked in such cases.

Thus, the power of the subordinate courts to restore a copy application dismissed for default does not stem, as such, from rule 129 of the Civil Rules of Practice, but is the result of their inherent power saved by section 151 of the CPC to meet the ends of justice or to prevent the abuse of the process of the court. If so, how can it be said that the High Court, both on the Original Side and on the Appellate Side, has no such inherent jurisdiction?

We may, to complete the discussion, mention the other two decisions referred to by Rajagopalan J. One of them is Sheik Meera Saheb and Another Vs. Mohammed Kyathi Saheb, by Somayya J., and the other is Manikyam v. Narasimham ( (1955) AWR 953) by Satyanarayana Raju J. In the first, Somayya J. held that even though there was no provision in the Civil Rules of Practice for granting copies on a second copy application, the court had inherent jurisdiction to grant such copies: and in the second, Satyanarayana Raju J. treated the dismissal of a copy application as a mistake committed by the Copying Section and held that, in such a case, the court had inherent jurisdiction to rectify the mistake.

In the result, we come to the conclusion that, not only the subordinate courts and the Original Side of the High Court, but the Appellate Side of the High Court too, have inherent jurisdiction, saved by section 151 of the CPC to restore a copy application dismissed for default and also to order the issue of copies on a second copy application. Such inherent jurisdiction of the High Court is saved by Article 225 of the Constitution too. In this view, it is evident that Kunhali Beary''s case has been wrongly decided and we overrule the same.

Then we come to the merits of the applications before us. We may at the outset observe that notice was issued to the opposite side, the Official Liquidator Palai Central Bank Ltd., and the counsel of the respondent, Sri C.M. Devan, appeared before us too. The decision of the High Court was on 2nd April 1969; and by some inadvertence the date of disposal was shown in the copy applications as 3rd April. More than six months after the filing of the copy applications, the Copying Section put up a notice pointing out the defect in the applications with a direction that the defect should be set right within three days. This was not noticed by the clerk of the advocate of the petitioner. In the circumstances (the notice by the Copying Section coming more than six months after the copy application), the oversight of the clerk cannot be said to be negligence or laches. Two other copy applications were then filed; and it was expected that the earlier applications would be made mention of by the Copying Section in the later applications. But the copies issued on the later applications have not made mention of the earlier applications, with the result that the appeals proposed to be filed with those copies are out of time. In these circumstances, we feel that we should exercise our inherent jurisdiction saved by section 151 of the CPC and by Article 225 of the Constitution and pass appropriate orders in these petitions for meeting the ends of justice.

We restore the earlier copy applications and direct the Copying Section to issue copies on those applications.