Uma Shankar Pathak vs The State of Bihar and Others

S.N. Pathak, J.—Heard.

This M.J.C. application has been filed praying therein to re-hear C.R. No. 1438 of 1999 after setting aside the order dated 31.1.2000 passed by this Court. This re-hearing has been sought under Order 41 Rule 21 as also u/s 151 of the Code of Civil Procedure.

During the course of hearing, it was submitted by the Petitioner''s lawyer that since there is no separate provision for restoring revision application disposed of finally without hearing the opposite party of the concerned revision application, so the provision relating to an appeal which was heard ex-parte shall apply, under Order 41 Rule 21 of the Code of Civil Procedure, mutatis mutandis, and Section 151 of the CPC shall also be applicable.

So far as Order 41 Rule 21 of the CPC is concerned, that is applicable with respect to an appeal which is heard ex parte in absence of the opposite party inspite of service of processes upon him. The opposite party may appear and pray for recall of the ex-parte hearing and to allow him to be heard, if the Court is satisfied that notice was not duly served or that the opposite party was prevented by sufficient cause from appearing when the appeal was called out for hearing. The above provision is specially meant for hearing an appeal. When an appeal is admitted, it is mandatory for the Court to issue summons against the Respondent and, therefore, when the Respondent appears and satisfies the Court that no summons was served upon him, in that case, the Court on its satisfaction in this regard may hear the Respondent and pass a fresh judgment. But a revision preferred u/s 115 of the CPC does not provide for hearing of the parties to the impugned order by way of necessity. Section 115 of the CPC has empowered the Court of revision to revise any order passed by its subordinate Court when, in the opinion of the High Court, that order is illegal or irregular. The Court of revision that is the High Court can revise the order of the subordinate court even suo motu. So when a revision is preferred by any party aggrieved by any order of the subordinate court, it is not necessary for the High Court to notice the opposite party and hear him. If the order prima facie appears to be illegal or irregular and without any just cause, that order may be set aside even without hearing either the applicant of the revision or opposite party. In that view of the matter, I do not think, the provision of Order 41 Rule 21 of the CPC shall be applicable to a revision which was disposed of on hearing only the Applicant.

So far as the applicability of Section 151 of the CPC is concerned, this section has clearly laid down that "nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court." In the instant case, non-hearing of the opposite party of the concerned revision was no abuse of process of the Court because u/s 115 of the Code of Civil Procedure, hearing of the opposite party was neither necessary nor mandatory.

So far as miscarriage of justice is concerned, the impugned order passed in revision on 31.1.2000 suggests, that the lower Court, order of which was challenged in the concerned revision had wrongly exercised its jurisdiction by passing the order dated 19.5.1999. So, I do not think, there was any necessity to hear the opposite party of the concerned revision and the applicant before this Court in M.J.C. No. 730 of 2000. In the aforesaid facts and circumstances, there was neither any abuse of process of the Court nor miscarriage of justice. So there was no injustice caused to the applicant of this M.J.C. application.

In the application before the lower Court which was disposed of by order dated 19.5.1999, the applicant of this M.J.C. application had prayed that the Treasury Officer be directed to pay him advance T.A. etc., but the order dated 19.5.1999 passed by Sub-Judge IV, Bettiah in the concerned title suit stated that the applicant was already relieved from Bettiah on 1.10.1997 itself and, therefore, he was not in a position to draw advance T.A. or advance salary etc; because the TO. was not in a position to honour the bill signed by him, he having been relieved from that place. In such a circumstance, the lower Court''s order dated 19.5.1999 directing the Treasury Officer to pay advance etc. was infructuous and useless. In that view of the matter, the order dated 19.5.1999 was set aside and the concerned revision was disposed of. So it was also observed in the order of the concerned revision that the applicant of this M.J.C. application could draw his salary ''and advance T.A. etc. from the new place of his posting. So in all circumstances, there was no question of miscarriage of justice.

In the result, I do not think it necessary to restore the revision application for hearing on behalf of the applicant of this M.J.C. application. Hence, this M.J.C. application is dismissed.