Vijay Pre-Prathamik and Madhyamik Vidyalaya Shikshak Samiti and others vs Vijay Madhyamik Vidyalaya Samiti

Rampal Singh, J.

This judgment shall also dispose of Civil Revision No. 115 of 1983 (Rajendra Prathmik and Madhyamik Vidyalaya Shikshak Samiti and others vs. Rajendra Shiksha Samiti.)

The applicants, aggrieved by the order passed by the Fifth Additional District Judge, Gwalior Shri S.S. Trivedi, in Civil Suit No. 10-A of 1983 and Civil Suit No. 11-A of 1983, have invoked the revisional jurisdiction of this Court u/s 115 of the Code of Civil Procedure.

Plaintiff non-applicant filed a suit for declaration and permanent injunction in the Court of Fifth Additional District Judge, Gwalior against the defendant applicants and also prayed for a temporary injunction under Order 39, Rules 1 and 2 of the CPC by a separate application. In reply to this application defendant-applicants raised preliminary objections in I.A. No. 3 as to the maintainability of the suit and also prayed for the decision of preliminary objections. After five adjournments, the matter was fixed for arguments on 26-7-1983. On that date counsel for the plaintiff-non-applicant and the plaintiff remained absent till 1.10 p.m. Hence the trial Court allowed I.A. No. 3 of the defendant-applicant and dismissed the application I.A. No. 1 of the plaintiff-non-applicant pending for grant of temporary injunction and the suit was adjourned to 24-8-1983 for filing of the written statement. At 1.30 p.m. on the same day, an application was filed on behalf of the plaintiff in the Court u/s 151 of the Civil Procedure Code, for the restoration of his application for temporary injunction and in that application cause was shown for the non-appearance. This application was opposed by the defendant-applicants on various grounds and an affidavit was also filed. Arguments of the parties were heard by the trial Court on 24-10-1983 and the case was reserved for orders on 14-11-1983. On that date, the trial Court passed the impugned order and restored the plaintiffs'' application of temporary injunction, to file. Aggrieved by this, the defendant-applicants have preferred this civil revision.

I propose to examine I.A. No. 3 on which the arguments of the parties were to be heard by the trial Court on 26-7-1983. In I.A. No. 3 the defendant-applicants raised preliminary objections with regard to the maintainability of the suit and therefore they prayed that before the application of the plaintiff-non-applicant I.A. No. 1 under order 39 Rules 1 and 2 Civil Procedure Code, is considered by the trial Court, this I.A. No. 3 be heard. The trial Court on 26-7-1983 allowed this I.A. No. 3 and further ordered that I.A. No. 1 of the plaintiff-non-applicant be dismissed. I.A. No. 1 contained the prayer for issuance of temporary injunction, but this application was not fixed for hearing on 26-7-1983. On this day, only I.A. No. 3 of the defendant-applicant was to be considered on merits. If this application was allowed on 26-7-1983, then according to the prayer contained in it the suit was to be dismissed and not I.A. No. 1. But the suit was not dismissed, instead, by mistake, I.A. No. 1 was dismissed. In absence of the plaintiff it is the suit which should have been dismissed by the trial Court. It appears that the trial Court due to its own mistake, passed an order, which should not have been passed. But in the impugned order the Court admits that this order dated 26-7-1983 was passed due to its mistake and misunderstanding. The Court can set aside or correct the mistake committed by it under its inherent powers. An order passed by the Court due to the mistake on the part of the Court or due to the laches of its office can be corrected and set right, in the interest of justice u/s 151 of the Code of Civil Procedure. The prime duty of the Court of law is to administer justice and to attain this pious end, use of its inherent powers u/s 151 is fully justified. (See Shyamsunder vs. State of Assam) AIR 1973 Gau 54 (FB)) and Sheikh Mohammad Vs. Mt. Rukmina Kunwar and Others,

Section 151 CPC preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court, This section does not clothe the Civil Court with inherent powers, it merely saves the inherent powers which a Court possesses to make order necessary for the ends of justice or to prevent abuse of the process of the Court. The Courts in India in matters of procedure are guided by the rules of equity, justice and good conscience. The Courts are not precluded from administering justice merely because there is no specific provision of law. The Courts are not to act upon the principle that every procedure is taken to be prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law and prohibitions cannot be presumed. It is to be remembered that jurisdiction u/s 151 Civil Procedure Code, may be exercised by a Court on the application of a party or suo motu. In this background, I shall consider now the contentions of the parties.

Shri S.K. Dube the learned counsel of the defendant-applicant contended that the trial Court dismissed the application of the plaintiff-non-applicant for grant of temporary injunction and they could have preferred an appeal under Order 43, Rule 1 of the CPC and they did not avail this remedy, hence the application for restoration u/s 151 of the CPC cannot lie. He further contended that the plaintiff could have filed an application for review. He challenged that there was no sufficient cause for restoration. Shri K.S. Tomar, learned counsel for the palintiff-non-petitioner justified the impugned order.

I shall deal with these submissions ad seriatim. I.A. No. 1, the application for grant of temporary injunction was not considered on merits by the Court. It was also not dismissed on merits. It was only dismissed for default of the non-appearance of the parties. Thus, two remedies were available to the plaintiff-non-applicant either to file an application for restoration of I.A. No. 1 or to file appeal under Order 43, Rule 1 of the Code of Civil Procedure. There is no provision in the Code for the restoration of an application under Order 39, Rules 1 and 2 thereof. Hence, the plaintiff-non-applicant choose to invoke the inherent powers of the Court u/s 151 of the CPC to restore it to file. Ordinarily, the remedy u/s 151 of the Code cannot be availed and the appeal under Order 43, Rule 1 of the Code can be preferred, but where the order for dismissal for default is the result of the mistake of the Court, the party should not suffer for such a mistake but the mistake may be rectified by the Court itself u/s 151 of the Code. And that is what has been done in this case. The trial Court suo motu has restored the I.A. No. 1 to record but it exercised the jurisdiction vested in it on the application of a party aggrieved by the dismissal order.

The remedy by way of appeal under Order 43, R. 1 Civil Procedure Code, though available is illusory and lengthy because the appellate Court would have to go by the record and to determine whether the plaintiff-non-applicant was prevented by sufficient cause from appearing before the trial Court. It is obvious that the appellate Court would have no material on record to render a decision on the sufficiency of the cause and may could not have given the desired relief to the appellant. (See Smt. Bimla Devi Vs. Aghore Chandra Mallick and Others, .

This Court in a Full Bench judgment in case of Nathu Prasad vs. Singhai Kapoor Chand (197676 JLJ 140) expressed the opinion in the following words:

when an application under Order 9, Rule 9 CPC is dismissed for default, both the remedies are available to the applicant (ii) he can apply for restoration under Order 9, Rule 9 and (iii) he may appeal under Order 43, Rule 1. Thus side by side two remedies are open to him. There is no provision in the Code to the effect that either of them will exclude the other. However, if an appeal has been filed and decided, the order of the lower Court will merge in the order passed by the appellate Court. There is nothing wrong or unusual that a party should have two alternative and simultaneous remedies against an adverse order.

Yet another case on the point is Bajrang Rai and Others Vs. Ismail Mian and Others, .

The trial Court has gone into the question and has held on facts that there was sufficient cause for the plaintiff for non-appearance. This being a question of fact, it cannot be re-examined in exercise of revisional jurisdiction.

It is settled that while exercising the jurisdiction u/s 115 of the Code of Civil Procedure, this Court is not competent to correct errors of fact, however, gross or even errors of law unless the said errors have relation to the jurisdiction of the Court. The words "illegality" and ''with material irregularity'' as used in this clause do not cover either errors of fact or law. (See D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, .

While parting with this judgment, I would like to express that when a suit is dismissed for non-appearance of the plaintiff, if it can be restored on satisfying the Court that the plaintiff was prevented by some sufficient cause from appearing before the Court, there is no reason as to why when in an application for grant of temporary injunction is likewise dismissed for non-appearance of the plaintiff, the latter should be denied an opportunity to satisfy the Court that he was prevented by reason of sufficient cause from appearing before the Court when his application was called for hearing.

The upshot of the above discussion is that as there is no error in the exercise of jurisdiction by the trial Court, this revision has no force and is accordingly dismissed. However, there shall be no order as to costs.