Thakur Prasad Lal vs Sukhlal Singh

Jwala Prasad, J.—This is an application against the order of the Subordinate Judge, dated the 12th April, 1923, directing the restoration of an application made by the opposite party under Order 21, Rule 100, of the Civil Procedure Code.

The learned Vakils on both sides have argued the most contentious point, namely, as to whether Order 9, Rule 4 of the Code applies to an application under Order 21, Rule 100. In the course of their arguments they have taken me through all the authorities on the subject, which are very voluminous, and the conflicting views taken by the Judges of the different High Courts. Amongst those cases may be mentioned the following:

(1) Bhubaneshwar Prasad Singh v. Tilakdhari Lal (1919) 4 P.L.J. , which held that Order 9, Rule 9 does not apply to an order passed under Order 21, Rule 90;

(2) Satya Narayan Lal v. Govind Sahay (1918) 3 Pat. 239 a decision of a Division Bench of this Court to the contrary.

(3) The recent decision referred to is that of Sheonandan Chowdhury v. Debi Lal Chowdhury (1923) Pat 239. In that case Mr. Justice Das held that Order 9, Rule 4 does apply to an application under Order 21, Rule 100. As regards the Special Bench decision referred to above he says: "Though the decision" itself is binding on me, I do not think "that I ought to be compelled to accept "that which logically follows from that "decision as equally binding on me, especially as I consider that the decision in "Bhubaneshwar Prasad Singh v. Tilakdharilal (1919) 4 P.L.J. 135 needs re-examination.

I have also been referred to several decisions of the Calcutta High Court, notably to that of Sir Lawrence Jenkins in Hari Charan Ghose v. Manmatha Nath Sen (1914) 41 Cal. 1 which held that Order 9, Rule 13 does not apply to an application under Order 21, Rule 100.

All the decision3 have been founded upon the pronouncement of their Lordships of the Judicial Committee in Thakur Prashad v. Fakirullah (1895) 17 All. 106 and upon the construction of Section 141 of the Civil Procedure Code.

Recently I had to consider this question in the case of Lachmun Lal v. Padarath Singh (1924) Pat 346. Mr. Justice Das does not refer in his decision in Sheonandan Chowdhury v. Debi Lal Chowdhury (1923) Pat 239 to his earlier decision in Jugul Kishore v. Bachindra Mohan (1919) 52 Ind.Cas. 416 wherein he seems to have taken an entirely contrary view.

In view of the decision given by Mr. Justice Das which to a large extent conflicts with the view taken by the Special Bench of this Court and to his own view in the case referred to above, I would have been inclined to refer this case to a larger Bench, but as I was thinking of doing so I looked into the record of the case and it seemed to me that a reference in this particular case would not be necessary.

The Court in the present case does not seem to have acted under Order 9, Rule 4 as was the basis of the contention of the learned Vakil on behalf of the petitioner, nor was the application of the opposite party ever made under that provision of the law. On the 11th November, 1922, the opposite party made an application under Order 21, Rule 100, affixing talbana (Court-fee) for service of notice upon the opposite party. That application was headed Order 21, Rule 100, and under the law the application bad to be entertained and disposed of. On the 11th November when the application was filed, the Court on the margin thereof noted "With case on 18th November, 1922". On 18th November, 7 922, the Court made the following note: "Petitioner absent. Put up on 20th November, 1922". On 20tb November, 1923, it is noted in the margin that "Petitioner still absent File."

The opposite party, then on the 14th December, 1922, made an application asking for the hearing and disposal of his original application made on the 11th November, 1922. No doubt, in his application the opposite party has in the end asked for the restoration of his former application, bun there was nothing to be restored, inasmuch as the first application was not disposed of in accordance with law. The Court had not rejected or dismissed it, bat had simply ordered it to be filed on account of the absence of the opposite party. This kind of order is not sanctioned by the Code nor has it any meaning. The practice of noting the word "File" in judicial matters, such as the present one, has been fully discussed by me in a case of this Court.

The opposite party was entitled to have his application properly registered and disposed of. The application does not seem to have been registered nor was any order-sheet started in connection therewith. All orders are written on the margin of the application. The method employed by the Court below is irregular. Even if the Court below meant to dismiss the application by the word "File" employed by it, it had ample jurisdiction to restore it u/s 151 of the Civil Procedure Code. No authority is needed upon the point, for the power vested u/s 151 is wide enough: vide Ram Narain v. Ramdhan Singh 1924. Pat. 274.

The application is therefore dismissed with costs. Hearing fee two gold mohurs.