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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Gopalji Mehrotra
  • Brij Lal Gupta
Judges
  • R.N Gurtu
  • S.N Dwivedi, JJ.
Acts
  • Section 151, C.P.C., independently of Order 9, Rule 9,
  • provisions of Order 9, Rule 13, C.P.C.,
  • SECTION 18 LIMITATION ACT
  • Order 9, Rule 13, C. P. Code
  • Order 21, Rule 85, C.P.C.,
  • Order 9, Rule 13, C.P.C.
  • Order 9, Rule 8, C.P.C.
  • Section 151, C.P.C.
  • Order 9, Rule 13,
  • Order 9, Rule 8
  • 9, Rule 9
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Gopalji Mehrotra
  • Brij Lal Gupta
Judges
  • R.N Gurtu
  • S.N Dwivedi, JJ.
Acts
  • Section 151, C.P.C., independently of Order 9, Rule 9,
  • provisions of Order 9, Rule 13, C.P.C.,
  • SECTION 18 LIMITATION ACT
  • Order 9, Rule 13, C. P. Code
  • Order 21, Rule 85, C.P.C.,
  • Order 9, Rule 13, C.P.C.
  • Order 9, Rule 8, C.P.C.
  • Section 151, C.P.C.
  • Order 9, Rule 13,
  • Order 9, Rule 8
  • 9, Rule 9
See more information ...
Smart Summary

Structured Summary of the Opinion — First Appeal by State of Uttar Pradesh

Factual and Procedural Background

A suit was filed by Shib Saran Agarwal against the State of Uttar Pradesh and an ex parte decree was passed in that suit. The State of Uttar Pradesh filed an application to set aside the ex parte decree and to have the suit restored. That restoration application was filed beyond the 90-day period prescribed for such applications and therefore prima facie barred by limitation. The State alleged that fraud had been committed by the opposite party against the State and relied on Section 18 of the Limitation Act to save the application from the bar of limitation. The trial court examined the allegation of fraud, found that fraud had not been proved, and dismissed the restoration application as barred by limitation. The State appealed from that order to the Court that produced the present opinion.

Legal Issues Presented

  1. Whether fraud had been established so as to save the restoration application from the bar of limitation under Section 18 of the Limitation Act (i.e., whether the plea of fraud displaced the limitation bar).
  2. Whether, independently of the provisions of Order 9, Rule 13, C.P.C., a court has inherent power to set aside an ex parte decree (i.e., whether the court can invoke inherent powers to set aside an ex parte decree outside the statutory route).

Arguments of the Parties

Appellant's Arguments

  • The State of Uttar Pradesh (appellant) contended that fraud had been established and hence the limitation for making the restoration application was saved under Section 18 of the Limitation Act. (The opinion records that this contention was advanced "without much conviction.")
  • Alternatively, the appellant argued that even if fraud were not established for the purpose of limitation, the court below could and should set aside the ex parte decree under the court's inherent powers (i.e., independently of Order 9, Rule 13, C.P.C.).

Other Parties / Lower Court

The opinion records the finding of the learned Judge below that fraud was not proved and that, accordingly, the restoration application was barred by limitation and had to be dismissed. The opinion does not record detailed adversarial arguments from the opposite party in the appeal beyond that lower-court finding.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Manilal Mohanlal Shah v. Sardar Sayed Ahmed, AIR 1954 SC 349 The Supreme Court observed that inherent powers of the court should not be invoked to circumvent mandatory provisions of the Code (in that case, Order 21, Rule 85, C.P.C.). The court relied on that observation to show the general principle that inherent powers ought not to be used to evade mandatory procedural provisions; the observation was held relevant to the present question about using inherent powers to set aside ex parte decrees.
Lalta Prasad v. Ram Karan, ILR 34 All 426 (1912) Presented as a decision where a Division Bench held that the court may exercise inherent powers to restore a dismissed suit in certain cases (Bench found difficulty in holding sufficient cause but exercised inherent powers for ends of justice). The court acknowledged this earlier Division Bench as supporting the exercise of inherent powers in appropriate cases; but it contrasted this with later Division Bench decisions taking a contrary view.
Ram Sarup v. Gaya Prasad, 24 All LJ 56; (AIR 1925 All 610) Held that there was no jurisdiction outside Order 9, Rule 13 to set aside an ex parte decree; rejected exercise of inherent jurisdiction for that purpose. The court cited this as an example of a Division Bench taking a contrary view to Lalta Prasad and relied upon it in assessing the weight of precedent against recognizing general inherent power to set aside ex parte decrees.
Sheikh Kallu v. Nadir Bux, 19 All LJ 907; (AIR 1922 All 441) Referred to in support of the proposition that there is no jurisdiction outside the relevant rule to set aside an ex parte decree. The opinion records that this decision was relied upon in later Division Bench cases (including Ram Sarup) and treats it as authority supporting the restrictive view on inherent powers.
Neelaveni v. Narayana Reddi, ILR 43 Mad 94; (AIR 1920 Mad 640) Madras Full Bench case cited as authority against inherent jurisdiction outside the rule for setting aside ex parte decrees. Referred to by earlier Division Bench reasoning (cited in Ram Sarup) as supporting the proposition that inherent power cannot be used to set aside ex parte decrees outside the statute.
A.H. Ghaznavi v. Gurcharan Singh, AIR 1937 All 691 Held that a court has no power outside Order 9, Rule 13, C.P.C. to set aside an ex parte decree passed by itself; approved earlier authority (19 All LJ 907) and referred to Radha Mohan Datt. The court treated this as a significant Division Bench decision aligning with the restrictive view and used it to support the conclusion that there is no general inherent power to set aside ex parte decrees.
Radha Mohan Datt v. Abbas Ali Biswas, 1931 All LJ 377; (AIR 1931 All 294) (Full Bench) Referenced by A.H. Ghaznavi and treated as relevant in assessing the scope of jurisdiction to set aside ex parte decrees. Cited as part of the chain of authorities relied upon by later Division Benches to deny inherent jurisdiction outside Order 9, Rule 13; the present court noted this reference in support of the restrictive view.
Mst. Balmati Kuari v. Jagbandhan Nath Tewari, AIR 1950 Pat 497 Inherent powers were exercised to set aside an ex parte final decree where the decree had been passed on a Commissioner's report that directly contravened a High Court consent order — treated as a special factual situation amounting to an error of the court. The opinion described this as a special-case justification for inherent powers where the court itself (through acceptance of the Commissioner's report) was in error; used to show limits and special categories where inherent power may be appropriate.
Asrob Ali Laskar v. Manuhar Ali Majumdar, AIR 1954 Assam 168 Inherent power exercised where the court itself erred (passed an ex parte decree despite a prior stay), so the mistake was attributable to the court rather than the party. Used as an example of a case where the court must rectify its own mistake ex debito justitiae and therefore inherent power was justifiably exercised.
Tikaram Namaji v. Tarachand Gujoba, AIR 1954 Nag 135 Ex parte final decree passed on a date not fixed for hearing and without notice to a minor; set aside under Section 151, C.P.C.; minors receive special protection from the court. The court cited this case to show that where the court's own error or the involvement of a minor occurs, Section 151 may be rightly used to set aside an ex parte decree.
Bai Dahi v. Shankerbhai Deojibhai, AIR 1954 Bom 214 Contains observations suggesting wide powers under Section 151, C.P.C., but the opinion treats those observations as confined to the peculiar facts involving a minor. The court considered this authority as limited to its facts (involving a minor) and therefore not supporting a broad reading of inherent powers outside exceptional categories.

Court's Reasoning and Analysis

The court structured its analysis in two connected strands: (1) whether fraud had been established so as to save the restoration application from the bar of limitation, and (2) whether the court could set aside an ex parte decree under its inherent powers independent of Order 9, Rule 13, C.P.C.

On the allegation of fraud: the court examined the evidence (having perused it with the assistance of counsel) and agreed with the learned Judge below that fraud had not been proved. Because fraud was not established, the court concluded that limitation for the restoration application was not saved by Section 18 of the Limitation Act.

On the question of inherent power: the court first acknowledged the Supreme Court's observation in Manilal Mohanlal Shah that inherent powers should not be used to circumvent mandatory provisions of the Code. The court then reviewed the relevant authorities from its own Court, noting that an earlier Division Bench (Lalta Prasad) had expressed that the court might in some cases exercise inherent powers to restore matters for ends of justice, but that later Division Bench decisions (notably Ram Sarup and A.H. Ghaznavi) had taken a contrary and restrictive view denying jurisdiction outside Order 9, Rule 13 to set aside ex parte decrees.

The court examined other decisions from various jurisdictions where inherent or Section 151 powers had been exercised. It highlighted that those cases commonly involved special categories: fraud on the court, mistake of the court itself (e.g., where the court ignored its own order-sheet or a prior stay), or the protection of minors where the court is answerable for the appointment or approval of guardians. The court emphasized that these constituted special factual categories in which inherent or Section 151 powers might be justifiably exercised.

Balancing the authorities, the court observed that there existed at least two later Division Bench decisions of its own Court contradicting Lalta Prasad. Given those later Division Bench decisions and the special factual nature of the other authorities that permitted inherent jurisdiction, the court concluded that the present case did not fall within the special categories (fraud, court's mistake, or minor protection) that might justify exercise of inherent powers. Because fraud was not proved on the facts, the limitation objection stood and there was no independent basis to set aside the ex parte decree under inherent powers in this case.

Holding and Implications

Holding: The appeal fails. The court held that in the present case there was no inherent power to set aside the ex parte decree and that fraud had not been established; accordingly, the restoration application remained barred by limitation. The appeal was dismissed with costs.

Implications:

  • The direct effect is that the State of Uttar Pradesh's appeal is dismissed and the ex parte decree and the lower court's dismissal of the restoration application (on limitation grounds) stand, with costs awarded against the appellant.
  • The court treated the authorities recognizing inherent or Section 151 powers as generally confined to special classes of cases (fraud on the Court, mistake of the Court, protection of minors). It declined to invoke inherent powers in the instant facts where no such special circumstances (fraud proved or a court error of the relevant kind) were present.
  • The opinion does not purport to create a new broad precedent exempting restoration from the statutory route; rather, it aligns with later Division Bench decisions restricting inherent jurisdiction in this context. The opinion does not indicate that it has laid down a novel principle beyond the application of existing authorities to the facts before the court.

This summary is based exclusively on the contents of the provided opinion and does not add information beyond what that opinion contains.

Show full summary ...

    Uttar Pradesh State v. Shib Saran Agarwal .

    1. This is a first appeal from order by the State of Uttar Pradesh.

    2. It appears that a suit was filed against the Uttar Pradesh Government by one Shib Saran Agarwal. That suit was decreed ex parte. An application for setting aside the ex parte decree and for restoring the suit was made by the Uttar Pradesh Government. The application was made beyond 90 days of the date of the decree, which is the period of limitation for making an application to set aside an ex parte decree. But the applicant made an allegation of fraud against himself by the opposite party and thus tried to save limitation under Section 18 of the Limitation Act. The learned court below went into the question of fraud and gave a finding that no fraud had been proved. It, therefore, held that the restoration application was barred by limitation and had to be dismissed.

    3. Learned counsel for the State of Uttar Pradesh tried to argue before us, without much conviction, that fraud had been established. But, for the reasons given by the learned Judge, we are convinced that fraud was not established in this case. We have ourselves perused the evidence and we feel that the finding of the learned Judge is wholly justified. Since learned counsel was not able to establish fraud upon the evidence and get over the difficulty of limitation, he contended that the court below could have set aside the ex parte decree in any case, under its inherent powers and he asked that the ex parte decree should be set aside under the Court's inherent powers.

    4. The first question, therefore, which we have to examine is whether independently of the provisions of Order 9, Rule 13, C.P.C., under which provision an application for setting aside an ex parte decree has to be made, the court is entitled to set aside, an ex parte decree under its inherent powers. We may first point out that this question should be approached, keeping in view the observations made by their Lordships of the Supreme Court, in the case of Manilal Mohanlal Shah v. Sardar Sayed Ahmed, AIR 1954 SC 349, in dealing with a case under Order 21, Rule 85, C.P.C., that the inherent powers of the court should not be invoked to circumvent the mandatory provisions of the Code, and in that case to relieve the auction-purchasers of their obligations to make the deposit of purchase money under Order 21, Rule 85, C.P.C. The general aspect of the observation would seem also to apply in the instant case.

    5. But we have been pressed in this case with a ruling of our own Court in the case of Lalta Prasad v. Ram Karan, ILR 34 All 426, which was given in the year 1912 by a Bench consisting of Mr. Justice Karamat Husain and Mr. Justice Tudball. There a suit had been dismissed under Order 9, Rule 8, C.P.C. and the plaintiff had applied for restoration, filing an affidavit that he was lying, on the day of hearing, in the chamber of his pleader Babu Munna Lal with a bad leg, waiting to be informed of his case having come up and Babu Munna Lal had also filed ah affidavit to the effect that ho had conceived the Judge to have fixed two O'clock for this case and so had started another case in the court of the Additional Subordinate Judge.

    The trial court, where the restoration application was made, held that the plaintiff had another pleader besides Babu Munna Lal and he could have informed by any of his pleader's clerks within the twenty minutes that the court was waiting. Accordingly the application for restoration was rejected. The plaintiff came up in appeal to this Court and it was urged by his counsel, as will appear from the report of arguments, that the case was one of mis-apprehension, and that the plaintiff's negligence was due to the common and natural reluctance of parties to appear unrepresented in a court. It was submitted' that the affidavit filed disclosed a sufficient cause for setting aside the order under Order 9, Rule 8 and in any case under the Court's inherent powers. It was in this connection that an observation was made to the following effect :

    "Order 9, Rule 9 makes it compulsory on a court to set aside a dismissal under Order 9, Rule 8, where the plaintiff satisfies the court that there was sufficient cause for non-appearance. It, however, cannot take away the court's power to restore the case for any other valid reason."

    This Bench was pressed to accept the view that the affidavit made out a sufficient cause, but the Bench thought that it was difficult to hold that a sufficient cause had been made out. But the Bench took the view that the case before it was one of those in which the Court may exercise its inherent powers of passing orders necessary for the ends of justice.

    6. A contrary view has, however, been taken by this Court in the case of Ram Sarup v. Gaya Prasad, 24 All LJ 56: (AIR 1925 All 610), which was a case decided in 1925 by Sulaiman and Daniels JJ. In that case also the lower appellate Court had itself found that there was no sufficient cause for the defendant for not appearing when the suit was called on for hearing and that his absence was intentional, It was held that the case did not fall under Order 9, Rule 13, C. P. Code but it was urged that apart from Order 9, Rule 13, the court had inherent jurisdiction to set aside an ex parte decree. That Bench was of opinion that there was no jurisdiction outside the provision of that rule to set aside an ex parte decree and it referred to a Bench decision of this Court in Sheikh Kallu v. Nadir Bux, 19 All LJ 907: (AIR 1922 All 441 (2)), and to a Full Bench case of the Madras High Court in Neelaveni v. Narayana Reddi, ILR 43 Mad 94; (AIR 1920 Mad 640).

    7. In the year 1937, in the case of A.H. Ghaznavi v. Gurcharan Singh, AIR 1937 All 691, a Bench of this Court consisting of Collister and Bajpai JJ. have held that a court has no power outside Order 9, Rule 13, C.P.C. to set a side an ex parte decree passed by itself and they approved of the decision given in 19 All LJ 907: (AIR 1922 All 441 (2)), and have also referred to the case of Radha Mohan Datt v. Abbas Ali Biswas, 1931 All LJ 377: (AIR 1931 All 294) (FB).

    8. It would, therefore, appear that there are at least more than two Division Bench cases of this Court which have taken a view contrary to the Division Bench view, which was expressed in the case of Lalta Prasad, ILR 34 All 426, by Karamat Husain and Tudball JJ.

    9. Some cases of other Courts were placed before us. The case of Mst. Balmati Kuari v. Jagbandhan Nath Tewari, AIR 1950 Pat 497, was a case in which the court had passed an ex parte final decree based on a Commissioner's report in respect of mesne profits for six years. The absent party applied for the setting aside of the ex parte decree, which was set aside presumably upon the ground that there had been an abuse of the process of the court, inasmuch as the decree had been passed on a Commissioner's report which had been drawn up directly in contravention of a consent order passed by the High Court.

    Now the facts of the case are very special and the exercise of inherent powers might be justified on the ground that, in passing the final decree on the basis of a Commissioner's report, which was in direct contravention of the High Court's order, the court passing the decree itself was in error in not scrutinising the Commissioner's report in order to see that it was in accordance with the directions of the High Court, the Commissioner being in a sense an officer of the Court and the mistake of the Commissioner being something in the nature of a mistake by the court itself.

    10. The case of Asrob Ali Laskar v. Manuhar Ali Majumdar, AIR 1954 Assam 168, is again a case where inherent power was exercised in order to set aside an ex parte decree. But that was a case where the court itself was in error for, without notice to the defendant and without taking note of the fact that there was a prior order of stay of proceeding, the court proceeded to pass an ex parte decree. Every court is expected to be aware of its own order-sheet and, if in disregard of an order of stay, it proceeds to pass an ex parte decree, it is not a case where the party has got to explain, because there was no blame on it, the blame being on the court itself. In such a case obviously ex debito justitiae it is the duty of the court to rectify its own mistake,

    11. The other case is Tikaram Namaji v. Tarachand Gujoba, AIR 1954 Nag 135, where the court had passed an ex parte final decree on a date not fixed for hearing and without notice to the minor. The guardian ad litem had applied for setting aside the ex parte decree under Section 151, C.P.C. and it had been set aside. Obviously the court proceeded to pass an ex parte decree on a date not fixed for final hearing. The parties were not to blame. If they are not to blame, it is the mistake of the court, which had got to be rectified. Section 151, C.P.C. is obviously correctly resorted to in such a case.

    Moreover, it is not to be overlooked that a minor was involved in the case. The guardian of a minor is approved by the court and/or is appointed by it, and in a sense the court is answerable for the appointment of a bad guardian who does not look after the case. In such circumstances, the court may under Section 151, C. P. C. rectify the mistake and set aside the, ex parte decree. It is well established that minors are entitled to special protection of the court, and the case of a minor may and does fall under a different category.

    12. The case of Bai Dahi v. Shankerbhai Deojibhai, AIR 1954 Bom 214, was a case of a minor and although the observations of Chagla C. J. are of a somewhat wide character in regard to the powers under Section 151, C.P.C. and he seems to suggest that the Courts have very wide powers to restore suits under Section 151, C.P.C., independently of Order 9, Rule 9, but we prefer to consider this case as an authority confined to its peculiar facts and, as we have already pointed out, a minor was involved in this case.

    13. It is well established that fraud on the Court itself and mistake of the Court and the protection of minors are categories of cases in which the powers given to the court under section 151 of the code may be exercised in suitable cases.

    14. We do not think that, in all these circumstances, it has been made out before us that there is any justification for our ignoring the decisions of the later Division Benches of this Court and prefer ring the decision of an earlier Division Bench. We do not also consider that it is necessary to refer this matter to a larger Bench, either. There is something to be said on the principle of stare decisis, although we admit that cases which have been decided and brought to our notice in favour of the view that we are taking, so far as our Court is concerned, are not numerous.

    15. In the circumstances we are of the view that there was no inherent power to set aside the ex parte decree in this instant case. We have already said that so far as fraud was concerned, it was not proved and so limitation for the restoration application was not saved. Learned counsel intimated that ft was not necessary for us to discuss the evidence in detail. We have, therefore, not discussed the evidence in detail relating to fraud, though we have examined the same with the assistance of counsel and are satisfied that the conclusion of the court below that there was no fraud established was correct.

    16. This appeal accordingly fails and is dismissed with costs.

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    Comments

    Uttar Pradesh State v. Shib Saran Agarwal .
    (Aug 20, 1959)