1. Plaintiffs (opp parties) filed O.S 271 of 1959 in the court of the Subordinate Judge, Puri, for recovery of Rs. 23,000. An ex parte decree was passed against the defendant (petitioner) on 4-2-1963. He filed an application under Order 9, Rule 13 of the CPC on 1-3-1963 in M.J.C 43/63 which was dismissed for default on 22-6-1963. Against that dismissal order, he filed M.A No. 71/1963 in the High Court. On 1-10-1963 this miscellaneous appeal was permitted to be withdrawn. The order of the High Court was to the following effect: Mr. Misra wants to withdraw this appeal saying that he will move the Subordinate Judge. He is permitted to withdraw. We do not express any opinion as to the maintainability of such an application before the Subordinate Judge.

2. On 4-11-1963 petitioner filed an application u/s. 151 of the CPC before the Subordinate Judge, Puri, in M.J.C 283/63 for setting aside the order dated 22-6-1963 dismissing M.J.C 43/63 for default. This application was dismissed on 10-2-1964 and against this order the Civil Revision has been filed.

3. The ground, taken by the petitioner to show sufficient cause for his absence was that his authorised agent Biswanath Patnaik, who was looking after the case, was gained over by the opposite parties and did not inform him the date of hearing and he was thus kept in ignorance and remained absent. After examining the evidence, the learned Judge held that the petitioner failed to establish the factual basis in his case. The learned Judge did not exercise his inherent jurisdiction as the application u/s. 151 was filed on 4-11-1963 about 35 days after the withdrawal of M.A 71/63 in the High Court.

4. Mr. Mohapatra raised four contentions in opposing the application:

(i) The petitioner had remedy by way of appeal for setting aside the dismissal order on 22-6-1963. Section 151 of the CPC cannot be invoked when an alternate remedy was available.

(ii) The finding of the Subordinate Judge that there was absence of sufficient cause is a pure finding of fact which cannot be interfered with in revision.

(iii) The petitioner having availed of the alternate remedy by filing M.A 71/63 in the High Court, which was withdrawn, is not entitled to invoke the inherent jurisdiction under Section 161 of the CPC.

(iv) Inherent jurisdiction should not be exercised in favour of the petitioner due to delay in filing the application.

5. All these contentions require careful examination.

6. The first objection is based on Doma Choudhary v. Ram Naresh Lal, AIR 1959 Pat 121 (FB) In that case, their Lordships held that an appeal lies under Order 43 R. 1(c) or (d) from an order rejecting for default an application under R. 9 or R. 13 of Order 9 respectively, as on a plain reading of clauses (c) and (d) to Order 43, R. 1, there is no ground for discriminating between rejection of an application on merits and its rejection for default. They noticed the position that the right of appeal is a creature of the statute and can neither be conferred nor taken away on a consideration of the question whether the remedy will or will not be convenient or adequate. This aspect of the matter was examined as it was contended before their Lordships that the remedy in an appeal against the order of dismissal would not be as efficacious as in an application for restoration where evidence regarding the existence or otherwise of sufficient cause for the absence can be taken. It is not necessary to repeat the reasonings given in support of their conclusion, Madan Lal Agarwalla v. Tripura Modern Bank Ltd., AIR 1954 Assam 1 (FB), which had taken a contrary view, was dissented. The Patna decision was followed in Udayanath Panda v. Baikuntha Nath Routhra, ILR 1960 Cut 41 : (AIR 1960 Orissa 176) by my learned brother Barman, J. In Civji Revn. No. 229 of 1962, Krushnacliandra Mohanty v. Bhaskar Mahalla I followed ILR 1960 Cut 41 : (AIR 1960 Orissa 176) by slating “I am bound by the aforesaid decision” without independent examination.

7. Mr. Misra contends that the aforesaid Orissa decisions are contrary to the two Bench decisions reported in Ananda Chandra v. Judhistir Jena, ILR 1963 Cut 24 and Bhaktisaxa Ramanuja Das v. Bouri Bandhu, ILR (1963) Cut 321 : (AIR 1963 Orissa 160) and cannot be followed. Their Lordships observed in ILR 1963 Cut 321 (326) : (AIR 1963 Orissa 160 at p. 161) as follows:

“The aforesaid observations seem to lay down the rule that in very very exceptional circumstances the Court may exercise its inherent power even though there may be an alternative remedy provided in the Code, or where such exercise of power may conflict with the express provision of the Code though for all practical purposes such conflict should be avoided.”

8. This observation supports Mr. Misra's contention.

9. Mr. Mohapatra, however, contended that this observation was in conflict with Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 on which it was based and the two Bench decisions cannot be accepted as good law. He also placed reliance on Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993. The arguments require careful examination of the view of the Supreme Court.

10. In AIR 1962 SC 527, their Lordships clearly stated that the inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the Legislature. The inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure Mr. Mohapatra is therefore right in contending that the observation of this court in ILR 1963 Cut 321 : (AIR 1963 Orissa 160), quoted above, is not in conformity with the decision of the Supreme Court. That Mr. Mohapatra's criticism is unassailable would be further clear from AIR 1964 SC 993. On para 19 the following dictum occurs—

“It is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be predicated that a court has the inherent jurisdiction which is saved by Section 151 of the CPC. It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is common ground that inherent power of the court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates.”

11. Their Lordships further examined whether the provisions in order 9 of the CPC were exhaustive of all the contingencies. On thorough examination, their Lordships observed as follows:

12. That every contingency, which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit, has been provided for, and Order 9, Rule 7 and Order 9 Rule 13 between them exhaust the whole gamut or situations that might arise during the course of trial. If, thus provision has been made for every contingency, it stands to reason that there is no scone for invocation of the inherent powers of the Court to make an order necessary for the ends of justice.

13. In view of these pronouncements of the Supreme Court, the observation in the Bench decision, quoted above, is inaccurate and, to some extent, in conflict with the decision of the Supreme Court.

14. This does not, however, mean that AIR 1959 Pat 121 (FB) and the two Orissa decisions which followed It, are correctly decided. Even assuming that an appeal lies under Order 43, R. 1(c) or (d) from an order rejecting an application under R. 9 or R. 13 of Order 9 respectively for default, would the failure on the part of the petitioner to resort to the alternate remedy of filing an appeal be a bar to the exercise of the inherent powers under Section 151 of the CPC? The series of Supreme Court decisions were not on the field when Patna case was decided. In an application under Section 151 of the CPC the petitioner wanted restoration of the miscellaneous case which had been dismissed for default. The correct approach would be not whether the petitioner had the alternative remedy by way of an appeal, but whether there is any provision in the Code which either expressly or by necessary implication exhaust the scope of the powers of the Court to grant restoration. It is conceded by Mr. Mohapatra that the consensus of opinion of the various High Courts of India is that the provisions of order 9 of the CPC have no application to a proceeding under Order 9. If that be so, there is no provision in the Code, either express or by necessary implication, which would conflict with exercise of inherent jurisdiction by the Court in the matter of restoration. Existence of an alternate remedy by way of appeal has nothing to do with the exercise of the inherent powers by the Court in the matter of granting restoration before whom the proceeding was dismissed for default. Thus this is a contingency in respect of which there is no specific provision in the Code. It is well known that the Code is not exhaustive. The powers of the Court u/s. 151 of the CPC can therefore be invoked for restoration of a proceeding under Order 9 dismissed for default. This aspect of the matter was not considered in the Patna case and could not have been practically examined until the matter was authoritatively pronounced by a series of Supreme Court decisions. On the aforesaid reasoning I have no hesitation in holding that AIR 1959 Pat 121 (FB) was wrongly decided. The decisions of this court which followed the aforesaid Patna Full Bench cannot be accepted as correct. No exception can be taken to the ultimate conclusion in ILR (1963) Cut 321 : (AIR 1963 Orissa 160). The first contention of Mr. Mohapatra must be overruled.

15. The Second contention of Mr. Mohapatra has considerable force. In Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336, their Lordships held that the question—whether there was sufficient cause or not—was a pure question of fact which the High Court could not interfere in exercise of its powers under Section 115 of the CPC. The learned Subordinate Judge has recorded a clear finding that the petitioner failed to prove his case regarding the existence of sufficient cause on this ground, the judgment under revision cannot be interfered with. The inherent powers are, however, to be exercised by the Court in very exceptional circumstances. The very amplitude of the power demands a cautious exercise thereof. In facts and circumstances of each case, the propriety of the exercise of such powers must be carefully examined. The Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice or to prevent abuse of the processes of the Court.

16. The third and fourth contentions of Mr. Mohapatra may be examined together as the principle underlying the objections in respect of both is identical. In light of the aforesaid principle both the contentions may be examined the alternate remedy available to the petitioner by way of appeal was availed of by him and he chose to withdraw the same. In such a case, it is open to a court of fact not to exercise its inherent jurisdiction in favour of the parh the learned Subordinate Judge had to refuse exercise of his jurisdiction on this ground. In exercise of the powers under Section 115 of the CPC this Court cannot interfere with the exercise of such a discretion which does not involve any question of jurisdiction.

17. The learned Subordinate Judge also refused to exercise is inherent jurisdiction as the application u/s. 161 of the CPC was filed late even after the withdrawal of the miscellaneous appeal. The cause shown for the delay has not been accepted as sufficient. Exercise of discretion u/s. 151 of the CPC must be done in extraordinary circumstances and cannot certainly be invoked in favour of a party who does not pursue the remedy in time. Both the contentions of Mr. Mohapatra must be accepted. In the result, the Civil Revision fails and is dismissed with costs. Hearing fee of Rs. 50 (Rupees fifty).

II/A.K.J/R.G.D

18. Revision dismissed.