Ram Labhaya, J.:— This petition is directed against an order of the Additional Sub-Judge, U.A.D dated 29-8-1951, by which petitioner's application under Section 151 of the CPC for restoration of an application for setting aside an ex parte decree which had been dismissed in default, was rejected.
2. Mr. Lahiri the learned counsel for the Opposite Party has contended that the order by which the application for setting aside the decree was dismissed in default was appealable and therefore the application under Section 151 of the CPC for restoration of the previous application was not competent. The order of the Court below is also sought to be supported on this ground though this was not taken in the trial Court and it was for a consideration of the question that the case was referred to a Special Bench. An ‘ex parte’ decree was passed in Title Suit No. 10 of 1947 on 11-9-1950. The application for setting aside that ‘ex parte’ decree was registered as Misc. Case No. 27 of 1950. The application was fixed for hearing on 12-2-1951. On that date the case was called. The applicant was absent and no one appeared on his behalf. The application was thus dismissed for default of appearance. The petitioner then applied under Section 151 for obtaining restoration of his miscellaneous application No. 27 of 1950 by which he had prayed for the setting aside of the ‘ex parte’ decree. This petition was put in on 10-3-1951. In this petition it was alleged that the petitioner was lying ill on 12-2-1950 and was unable to attend the Court. The application was supported by a medical certificate showing that the petitioner was ill on that date. On the hearing of this application the petitioner himself appeared in the witness box. He examined 3 other witnesses, but the doctor who treated him could not be examined. He was not present. He had been summoned but failed to attend and the petitioner asked for adjournment of the case for his statement. The adjournment was refused and the case was disposed of on evidence which the petitioner had produced. On this evidence the Court declined to restore the previous petition dismissed in default. It is against this order that this petition of revision is directed.
3. The first important question that arises for consideration is whether an application under Section 151 of the CPC was competent. Mr. Lahiri, the learned counsel for the respondent has urged on the strength of certain authorities that an appeal against the order dated 12-2-1951 was expressly allowed by Order 43, Rule 1(d) of the CPC. In view of this specific remedy, that the Code made available to the petitioner he was not entitled to invoke the inherent jurisdiction of the Court. Authorities relied on by him are — ‘Kumud Kumar v. Hari Mohan’, A.I.R 1916 Cal. 391 (1) (A) — ‘Mufti Reazuddin v. Maheshanand’, AIR 1929 Patna 529 (2) (B). ‘Mt. ‘Bodhia v. Ram Chandra’, A.I.R 1927 Pat. 240 (C). — ‘Narasayya v. Thimmappa’, AIR 1943 Mad 584 (D), and — ‘Uma Datt v. Mt. Zakia Bibi’, AIR 1936 All 737 (E & F). They may now be considered.
4. The basic authority on the point is — ‘AIR 1916 Cal. 391 (1) (A)’. In this case Sir Asutosh Mookerjee the distinguished Judge of the Calcutta High Court laid down that Order 43. Rule 1(d) covered cases of rejection of a petition for setting aside an ex parte decree whether the application was rejected on the merits or in default and an order dismissing a petition even though for default would be appealable. The proposition has been laid down in broad terms. But it is necessary to see the facts of the case which gave rise to it. The petitioner who had applied for setting aside the ex parte decree was not absent when the petition was rejected. He was present through counsel. An application for adjournment was made. The Court thought that there were no reasonable grounds for adjournment and virtually decided to proceed to-dispose of the case on the merits. The petitioner's, counsel withdrew stating that he had no further instructions. The decision of the Court to decide the case on whatever material it had on the record, was taken in his presence. It was only after the refusal of the Court to adjourn the case that, the withdrawal of the petitioner's counsel took, place. It was held in these circumstances that the dismissal of the petition (for default in producing, evidence) was such a rejection as was covered by O. 43, R. 1(d). In — ‘AIR 1927 Pat 240 (C), it was, held by a Division Bench of the Patna High Court that an appeal lay under O. 43, R. 1(d) of the CPC, against an order dismissing for default an application to set aside an ex parte decree. The application under O. 9, R. 13 was fixed for hearing on 13-3-1928. On that date the Opposite Party appeared but the petitioner was not ready and the case was adjourned on petitioner's application to 27th. March, for hearing and the parties were ordered, to come ready on that date. On 22nd March the petitioner prayed for the examination of a witness, on commission. This application was disallowed. An application was then made for the summoning of witnesses. The summonses were ordered to be issued at her risk. On 27th March the case was taken up. The petitioner again applied for time and for issue of summonses on her witnesses who had not yet been served. The Court disallowed the prayer and dismissed the petition. It was held, relying on — ‘AIR 1916 Cal 391 (1) (A)’, that an appeal against the order was competent.
5. In — ‘AIR 1929 Patna 529 (2) (B)’, the applicant who had applied for setting aside the ex parte decree under O. 9, R. 13 applied for time on the date of the hearing of the petition. This petition was rejected. The pleaders for the petitioners then retired and the application was dismissed in the presence of the plaintiff opposite party. It was held that the order was appealable. Reliance was placed on — ‘AIR 1916 Cal 391 (1) (A), and on — ‘AIR 1927 Pat 240 (C)’. In — ‘AIR 1936 All 737 (E & F), the plaintiff's suit was dismissed for default of appearance on 1-8-1933. He applied for restoration of the suit. The application for restoration came up for hearing on 19-5-1934. The plaintiff had not deposited process fee for the Opposite Party till 12-5-1934, on which date the process fee was tendered. The Munsiff refused to accept the process fee and observed that there was no sufficient time left for the service of notice in the ordinary course on the unserved opposite-party. The result was that when the application came up for hearing on 19th May, he dismissed the application for non-prosecution. He observed that the notice could not be issued to the opposite party on account of the applicant's failure to pay process fee till 12-5-1934. It was held that an appeal lay against the order even though the application for restoration of the suit was dismissed for non-prosecution, and in support of this view reliance was placed on — ‘AIR 1929 Pat 529 (2) (B)’. In — ‘AIR 1943 Mad 584 (D)’, the facts are not fully stated. All that the judgment brings out is that the application for setting aside an ex parte decree was dismissed for default by an order dated 1-10-1941. The nature of the default is not disclosed. It does not appear whether it was absence of the petitioner or it was a case of default of the nature dealt with in the cases referred to above. Relying on — ‘AIR 1936 All 737 (E & F), the Page: 3learned Judge Somayya, J. held that the order was appealable Reference was also made to the two Patna decisions referred to above.
6. In — ‘Bahadur Singh v. Wasawa Singh’, AIR 1924 Lah 281 (1) (G), an application to set aside an ex parte decree was consigned to the record room owing to applicant's failure to pay the process fee for service of notice. It was held that the order amounted to a dismissal of the application under O. 9, R. 13 and that an appeal was competent, in this case a date was fixed for the hearing of the application and an adjournment was given to the petitioner as notice had not been served. The applicant failed to pay the process fee and the application was consigned to the record room. The learned Judge took it to be tantamount to be an order dismissing the application. The application was not dismissed in the absence of the petitioner. He had the opportunity to show cause for his failure to put in the process fee on the due date.
7. In — ‘Pakari Pramanik v. Sarat Sundari’, AIR 1917 Cal 558 (H), an appeal was allowed from an order rejecting an application to set aside an ex parte decree for default of the applicant to appear in support of the application. This is the only clear case in which it appears that an appeal was allowed under O. 43, R. 1(d) even in a case where the petitioner was absent when the application for setting aside an ex parte decree was dismissed. Some other cases have also been pressed into service by Mr. Lahiri. They are not helpful as is shown below. In — ‘Ansarali v. Bhim Shankar’, AIR 1929 Cal 407 (2) (I), it was held that even if no formal order is recorded confirming the sale when the application under O. 21, R. 90 has been dismissed for default of non-appearance of both the parties to the proceedings, the order of dismissal passed under those circumstances is open to appeal. The language of the relevant provisions is different from those contained in O. 9, R. 13 and the case is obviously distinguishable. In — ‘Narayan Putapa v. Vaikunt Subaya’, AIR 1927 Bom 1 (J), a Full Bench of the Bombay High Court held that an appeal lay from an order rejecting an application for an order to set aside a decree passed ex parte when the order is made because the conditions which were lawfully imposed on the defendants were not complied with. This case has nothing in common with the case before us. The point here is very different. The decision in this case to set aside an ex parte decree on certain conditions was clearly a decision on the merits & would covered by the provisions of O. 9, R. 13. The ultimate dismissal was no doubt because of the failure of the petitioner to fulfil the conditions of the order. But that cannot conceal the real nature of the order. It is not an order of the kind dealt with in cases like — ‘AIR 1916 Cal 391 (1) (A)’, nor is it a case where the petitioner was absent and the application was dismissed on account of default of appearance. ‘Ramaswami v. N.A Chettyar Firm’, AIR 1933 Rang 63 (K), follows — ‘AIR 1927 Bom 1 (FB) (J), and is distinguishable on the same ground.
8. In — ‘Alagasundarm Pillai v. Pichuvier’, AIR 1929 Mad 757 (L), which is a Full Bench decision of the Madras High Court, the case arose out of an execution proceeding. The questions referred to the Full Bench were (1) whether the provision of O. 9 of the CPC, apply to proceedings instituted under R. 100 of. O. 21 of the Code and (2) whether otherwise the Court has inherent power to set aside a dismissal for default of an application made under R. 100 of O. 21 when the ends of justice rendered’ it necessary to do so. In regard to the first proposition it was held that S. 141 did not apply to proceedings under O. 21 if they are not also proceedings under Section 47 of the CPC. On this basis O. 9 was not applied to proceedings under R. 97 or R. 100 of O. 21. In regard to the second question it was observed that there was a remedy by suit available to a petitioner whose petition was dismissed and in such a case there was no case for the exercise of the inherent, power. We are not concerned with the first proposition in this case. The second proposition is undisputed, though it has no application to the facts of the present case.
9. In — ‘Ananda Kumar v. Radhanath’, AIR 1952 Assam 75 (M), my learned brother Deka, J. followed the view taken in — ‘AIR 1916 Cal 391 (1) (A)’. In this case the Advocates of the parties were present. The petitioner had taken no steps except, that his lawyer attended on the date of the hearing. The plaintiff was ready. The Court declined, to adjourn the case and rejected the application for revival, not in the absence but in the presence of the petitioner's counsel. In these circumstances the rule enunciated in — ‘AIR 1916 Cal 391 (1) (A)’, was applied.
10. Briefly stated the view taken in the line of cases starting from — ‘AIR 1916 Cal 391 (1) (A)’, and ending in the decision of my learned brother Deka, J. reported in — ‘AIR 1952 Assam 75 (M)’, is that where the petitioner who has applied for setting aside an ex parte decree against him appears personally or through pleader on the date of the hearing and asks for an adjournment which is refused and the case is decided, the order is one under O. 9, R. 13 of the CPC, and is appealable under O. 43, R. 1(d). It may be noticed that barring — ‘AIR 1917 Cal 558 (H)’, there is no clear case in which an order dismissing an application under O. 9, R. 13 for default of appearance was held to be appealable under O. 43, R. 1(d). The decision came before — ‘AIR 1916 Cal 391 (1) (A)’, and has not been subsequently referred to in any case except — ‘AIR 1924 Lah 281 (1) (G)’.
11. Mr. Sen the learned counsel for the petitioner has contended that these cases should not apply to cases where the petitioner failed to attend and his failure was due to causes beyond his control. He urges that dismissal or rejection of the application in such circumstances ought not to be treated as dismissal on the merits under O. 9, R. 13 and if such a dismissal is not a dismissal under O. 9, R. 13, an appeal under O. 43, R. 1(d) would not be competent. The remedy of the aggrieved party in these circumstances would be an application for the restoration of the previous application dismissed in default, in support of his proposition he has relied on several authorities which I now proceed to examine.
12. In ‘Brij Mohan v. Raghoba’, AIR 1932 Nag 101 (N), the question was whether an appeal lies from an order by which an application for restoration of a suit dismissed in default was itself dismissed for default of appearance. It was held that Section 141 of the CPC, could not be interpreted as giving a substantive right to make an application to set aside the dismissal of an application for restoration of a suit dismissed in default. The order, in view of the learned Judges, could not be placed under O. 9. The order was treated as one under Section 151 of the CPC. In consequence it was held that no appeal lay from the order. The reason for not applying S. 141 to an application for the restoration of a suit dismissed in default was that such a course would conflict with the decision given in — ‘Thakur Prasad v. Fakirullah’, 17 All 106 PC (O), in which their Lordships of the Judicial Committee held that the proceedings spoken of in S. 141 include original matters in the nature of suits such as proceedings in probates Page: 4guardianships and so forth. The applicability of S. 141 to applications under O. 9 was regarded as, doubtful and Section 151 of the CPC, was applied in preference. The view taken in this case receives support from — ‘Sarat Krishna Bose v. Bisweswar Mitra’, AIR 1927 Cal 534 (P). It was held in this case that Section 141 of the CPC, does not make O. 9 applicable to proceedings under O. 9. When an application under O. 9, R. 9 for restoration of a suit is dismissed for default, under Rule 4 of that Order, no application lies under O. 9, R. 9 setting aside the order of dismissal and for restoration and rehearing of the former application under O. 9, R. 9. The second application may be treated as an application to restore the suit itself and not to restore the first application and if it is within time, there can be no bar to its being dealt with as an application under O. 9, R. 9 of the CPC. If it is not within time S. 151 may be invoked in proper cases to restore the suit. In this case the application for restoration of a suit dismissed in default had been dismissed for failure on the part of the petitioner to put in talabana and processes. The application for restoration could not be treated as a second application for the restoration of the suit. It was ordered that the application shall be treated as one in the exercise of the inherent power of the Court ‘ex debito justitiae’ to review the order of dismissal for default.
13. In ‘Sourendra Nath Mitter…Petitioner, v. Jatindra Nath Ghose…, Opposite Party.’, AIR 1929 Cal 17 (Q), an application under O. 9, R. 9 for restoration of a suit was itself dismissed for default. Plaintiff applied under O. 9, R. 9 read with S. 151 to have the dismissal of the application set aside. It was held that O. 9, R. 9 did not apply but the Court could in proper cases grant relief under S. 151. This case was decided in April 1928. ‘AIR 1916 Cal 391 (1) (A)’, a decision given about 12 years before was not even referred to in this case or in — ‘AIR 1927 Cal 534 (P)’. The unmistakable reason for this is that the decision had no application to the facts of these cases. It would appear that according to the view prevailing in the Calcutta High Court where an application under O. 9, R. 4, 9, or 13 is itself dismissed in default of appearance, the only appropriate relief is to restore the application in the exercise of the inherent jurisdiction under S. 151 if sufficient cause is shown for failure to appear on the date the application is dismissed in default. In the two Calcutta cases the applications dismissed in default were applications under O. 9, R. 9 but the rule which is applied to such applications if dismissed for default should apply to applications under O. 9, R. 13 when they are dismissed for default, for there is no reasonable ground for making a distinction between an application under O. 9, R. 9 and an application under O. 9, R. 13. On the other hand cases in which the petitioner appears, prays & presses for an adjournment giving reasons in support of the petition for adjournment but does not succeed in getting an adjournment and the Court disposes of an application under O. 9, R. 13 by ordering its rejection or dismissal, the order is treated as under O. 9, R. 13 and as such appealable.
14. In — ‘Bajit Lal Pathak v. Maharajadhiraj Sir Rameshwar Singh Bahadur*’, AIR 1928 Pat 335 (R), it was held by a Division Bench of the Patna High Court that an order dismissing for default an application to set aside the dismissal of a suit under O. 9, R. 9 was not covered by R. 1(c) of O. 43 and therefore was not appealable. In - ‘AIR 1929 Pat 529 (2) (B)’, this decision was distinguished on the ground that it was under O. 9, R. 9 and not under O. 9, R. 13. Its correctness was also doubted but it has not so far been overruled. It may be pointed out with great respect to the learned Judges that the distinction noticed in — ‘AIR 1929 Pat 529 (2) (B)’ is really without a difference. It is true the two cases are under different provisions of O. 9, but the point in both the cases was the same and that was whether when an application under O. 9, R. 9 or under O. 9, R. 13 is itself dismissed in default, the order is under O. 9, R. 9 or under O. 9, R. 13 as the case may be or is not covered by any express provision in the Code.
15. In — ‘Kallu Khan Fazledin v. Surji Vallabhadas’, AIR 1947 Bom 328 (S), the suit was dismissed for default. An application was filed to restore the suit. When the application came up for final hearing the applicants were absent The application was also dismissed for default. The plaintiffs put in another application for restoration of the application dismissed in default. The second application was dismissed. An appeal was filed against that order in the District Court. The District Judge held that no appeal lay. On revision it was held notwithstanding an earlier decision to the contrary, that an application for restoring an application under O. 9, R. 9 which has been dismissed for default, lay. But an appeal against the rejection of the application was held not to lie and interference in revision was declined on the ground that no question of jurisdiction was involved in the case.
16. In — ‘Sadaya Padayachi v. Chinnaswami Naidu’, AIR 1935 Mad 609 (T), an ex parte decree was passed against the appellants. They applied under O. 9, R. 13 to have it set aside. This application was dismissed for their default. They then applied to have that order set aside and their application restored. This application was dismissed on the merits. It was held that no appeal lay from such an order. No objection was taken to the competency of the application for restoration of the application by which the setting aside of the ex parte decree was prayed for. The competency of the second application for the restoration of the previous application was taken for granted.
17. In — ‘Ganesh Prasad v. Bhagelu Ram’, AIR 1925 All 773 (U), an application for setting aside the dismissal of a suit for default was itself dismissed for default and a subsequent application was made to restore it. Daniels, J. held that O. 9 read with S. 141 applied to the case and if there was no other remedy left, S. 151 applied. Sulaiman, J. was of the opinion that O. 9 read with S. 141 could not be applied but that S. 151 applied and the Court could entertain the application under its inherent jurisdiction. This case was not referred to in — ‘AIR 1936 All 737 (E & F)’, on which Mr. Lahiri has relied
18. It will be noticed that the High Courts of Calcutta, Patna, Madras, Allahabad and the Court of the Judicial Commissioner, Nagpur when dealing with applications to restore applications under O. 9 which had been dismissed for default of appearance have used or allowed the use of the inherent jurisdiction of the Court under S. 151. These, however, were cases where the petitioner except in one case was absent and the petition itself was dismissed for default of appearance, though under the circumstances which existed in — ‘AIR 1916 Cal 391 (1) (A)’, a right of appeal was allowed by all these Courts except the Court at Nagpur.
19. The third view is that where an application under R. 4 or R. 9 or R. 13 of O. 9 is itself dismissed for default a fresh application to restore that application would lie under O. 9 read with S. 141. This view has prevailed in the following cases. In — ‘Nand Lal v. Jetha Ram’, AIR 1929 Lah 878 (V), a second application for restoration of an Page: 5application under O. 9, R. 9 which had been dismissed for default was held to be maintainable. Reliance was placed on — ‘AIR 1925 All 773 (U)’. There are previous cases of the Lahore High Court also to the similar effect. In — ‘Karai Chinnappa Naidu v. B.K. Deenadayalu Naidu’, AIR 1948 Mad 480 (W), an application was made for setting aside an ex parte decree. When the application was pending, the applicant was arrested and could not appear on the adjourned date The Vakil reported no instructions. The application was dismissed. On his release he applied to have the order of dismissal of the application set aside. It was observed by Horwill, J. as follows:
“It has been held by this Court that when an application under O. 9, R. 13 has been dismissed for default, an application under O. 9, R. 9 to set aside the order of dismissal for default will lie.”
20. In — ‘S.A Menon v. J.F Lafon’, AIR 1926 Rang 74 (X), a suit was dismissed for default. An application for setting aside the dismissal was made. This application was also dismissed for default. It was held that an application to set aside the order dismissing the application for default was competent. The provisions of O. 9 were applied. In — ‘Jugal Kishore v. Pensioner Subedar’, AIR 1934 Pesh 13 (Y), an application to restore a suit dismissed for default under O. 9, R. 13 was also dismissed in default. A second application to restore it was held competent. ‘Achuta Bhatta v. Manjunathayya’, ILR 26 Mad 654 (FB) (Z) & — ‘AIR 1925 All 773 (U), were relied on. In — ‘Mt. Jamna v. Mt. Ramraji’, AIR 1923 Oudh 146 (Z1), an application to have a suit decided ex parte restored to the file was dismissed for default. An application to set aside the dismissal was held to be competent under O. 9, R. 9 read with Section 141 of the CPC.
21. Order 43, R. 1(d) provides for an appeal against an order under O. 9, R. 13 rejecting an application to set aside a decree passed ex parte. It is necessary before an order can be said to be covered by this provision that there should be an order rejecting an application under O. 9, R. 13. All orders on an application under O. 9, R. 13 may not be orders under O. 9, R. 13 What is required is that there should be, first an application under O. 9, R. 13 and then there should be an order as contemplated by O. 9, R. 13. If there is an order coming within the purview of O. 9, R. 13, O. 43, R. 1(d) will apply and not otherwise.
22. Order 43, R. 1(d) applies to the rejection of an application under O. 9, R. 13. It has been argued and this view has prevailed in the line of the cases starting from — ‘AIR 1916 Cal 391 (1) (A)’, that the term rejection would include rejection of an application both on the merits as well as for default. The word rejection may have that wide implication but it is not enough to dispose of the question whether an order dismissing an application under O. 9, R. 13 for default of appearance is an order under O. 9, R. 13. It may be a rejection of the petition within the meaning of the term as used in O. 43, R. 1(d) but whether such a rejection is contemplated by O. 9, R. 13 has to be seen. Order 9, R. 13 provides that in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which decree was passed for an order to set it aside and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as he thinks fit. The rule permits the Court to set aside the ex parte decree if it is shown that the summons was not duly served or that the defendant was prevented from appearing by any sufficient cause when the suit was called on for hearing. The necessary implication of the rule is that where the petitioner fails to prove either of the two grounds on which an ex parte decree may be set aside, the decree shall stand and the application shall be disallowed Beyond that it is difficult to read anything into this rule. It does not contemplate the possibility of the absence of the petitioner and does not provide for the contingency. Where the petitioner is not present personally or through his pleader the Court cannot apply its mind to the considerations on which an order under O. 9, R. 13 must rest. If he is not present, there is no one to show cause for absence when the case was called on for hearing. The Court cannot apply its mind to that question. The rejection of the petition is on the ground that there is no one there to prosecute the petition. The dismissal is for non-appearance without reference to the merits of the petition. Such an order (on the basis of absence of the petitioner) is not an order rejecting an application for setting aside an ex parte decree under Order 9, Rule 13. It is not an order under O. 9, R. 13 though it undoubtedly is an order rejecting the petition. In fact the Code contains no express provision for dismissing an application under O. 9, R. 13 for default of appearance & such a provision could not be read into O. 9, R. 13 without reading into it what it does not contain. There is in this view no provision in the Code justifying the dismissal of an application under O. 9, R. 13 for default of appearance.
23. It may be observed that it is not easy to treat such an order as covered by O. 9, R. 13 by any implication. There are express provisions in the Code for dismissal of suits for default. These are O. 9, R. 3, and O. 9, R. 8. There is also express provision in the Code for dismissal of appeals for default. This is contained in O. 41, R. 17. There is no express provision for dismissal of execution applications in default. If such petitions are dismissed in default the dismissal can only be under Section 151 of the CPC. Similarly there is no provision for dismissal of applications under O. 9 for default of appearance and therefore wherever these petitions are dismissed, their dismissal can be regarded as covered only by S. 151. It should therefore be possible for the Court to restore these petitions under S. 151. In fact there would be no other suitable remedy for a petitioner who has been prevented from appearing by causes beyond his control. If he appeals there is nothing on the record on the basis of which he can show that the order of dismissal for default in appearance was wrong or contrary to law. It is suggested that the appellate Court may decide the matter by affidavits or may make an order on enquiry. If this course is adopted, there will be a proceeding giving the petitioner chance to show that there was sufficient cause for his absence. The appeal will be converted into a petition for restoration and this is the very purpose which would be served if in such a case instead of appeal an application for restoration of the petition is allowed for sufficient cause being shown for absence. In fact if this remedy is not allowed, a petitioner who was prevented from appearing in Court on the date of his petition under O. 9, R. 9 or under O. 9, R. 13 comes up for hearing, will be left without a remedy. For remedy by appeal in such cases is merely illusory unless he is given opportunity to show cause for his absence. It is for this reason that in all such cases applications for restoration of the applications under O. 9 when dismissed for default of appearance Page: 6have been entertained either under O. 9 read with S. 141 or under S. 151. There is a large volume of authority on this point. Most of these cases have been dealt with above. In such cases the petitioners did not pursue the remedy by way of appeal; nor was the question whether an appeal in such cases, was competent considered. An opportunity was afforded to the petitioner to show that he had sufficient cause for absence. This obviously was the right course.
24. The question whether this remedy is available by virtue of the inherent powers of the Court or by reading Section 141 of the CPC with O. 9 remains. My preference is for the former view. The latter view has obvious difficulties. Section 141 applies to original matters in the nature of suits such as proceedings in probate, guardianship and so forth, as was held by their Lordships of the Privy Council in — ‘17 All 106 (O)’. The expression ‘so forth’ has been read as meaning proceedings ‘ejusdem generis’ with the instances that precede it and may include such proceedings as in divorce and insolvency, succession certificate and the like. They should be matters which originate in themselves and not those which spring from a suit or from a proceeding or arise in connection therewith. In other words, S., 141 should not apply to subsidiary proceedings. Another difficulty is that if the whole of the Order 9 is applied to applications to restore applications made under O. 9 when they are dismissed for default of appearance, the right of appeal will be conferred on these petitioners automatically. This is not in consonance with the scheme of the Code. Right of appeal may not be given inferentially in this way. There should be an express provision for the right of appeal. Not only the right of appeal will follow as a consequence of reading S. 141 with O. 9 but the law of limitation governing applications under O. 9 will also apply. There are apparent difficulties of a real character in the way of utilizing Section 141 of the CPC, for applying the entire O. 9 to applications made under O. 9 when they are themselves dismissed for default of appearance. These reasons influenced me to prefer the view taken in the line of cases relied on by Mr. Sen. To my mind the weight of reason was in favour of that view. If there is no express provision in the Code for dismissing applications covered by O. 9 for default of appearance the only possible source of jurisdiction for dismissal for default can be the inherent power of the Court That inherent power could also be utilised for restoration of those petitions in suitable cases. I still adhere to the preference I expressed in favour of this view in — Kabiram v. Anandram’, AIR 1952 Assam 93 (Z2).
25. This view does not necessarily conflict with the view taken in — ‘AIR 1916 Cal 391 (1) (A)’, and other cases based on that view. In — ‘AIR 1916 Cal 391 (1) (A)’, on the date the application for setting aside the ex parte decree came up for hearing, an application was made for an adjournment of the case on behalf of the petitioner. This application was found to be frivolous. The Court refused to grant time. The counsel for the petitioner intimated to the Court that he had no further instructions. The application was dismissed in these circumstances though the order stated that it was dismissed for default. The default was in producing evidence on due date. Cases falling underpins category are distinguishable from cases in which a petitioner has failed to attend and his failure was due to causes beyond his control. The difference is apparent. In this class of cases the petitioner does appear. He applies for adjournments, gives his grounds and the Court finds that the application for adjournment is not well grounded. The petitioner when applying for an adjournment does intimate to the Court that he is not ready to proceed with the case. The Court in these circumstances has no option but to dismiss the petition. The dismissal in such circumstances is for failure of the petitioner to produce evidence. Though technically even an order in such a case may be described as an order of dismissal for default, yet in point of fact the Court declines to grant an adjournment in the presence of the petitioner, after hearing him and after considering any evidence that is produced by him. The aggrieved party may take his case to the Court of appeal and may show that the adjournment was refused wrongly or without good ground. There may be some material on the record to show that the order was wrong. The remedy by an application for restoration of the application so dismissed may not be effective. The Court having applied its mind to the question whether the petitioner can justifiably ask for an adjournment may not be easily induced to give another decision on the same question if it is called upon to decide that point again by a fresh application; nor would it suit the petitioner in such a case to apply for restoration of his petition on the basis that he had sufficient cause for applying for an adjournment which had been wrongly refused. That would be asking the Court merely to review its order on the basis of materials available on the record and an appeal obviously would be a better remedy than review in these cases.
26. The orders also in such cases may conceivably be interpreted as orders covered by Order 9, Rule 13 as being orders on the merits. For, disposal of the petition on the merits, does not necessarily mean disposal on evidence produced. In such cases Court practically comes to the conclusion that a petitioner had reasonable opportunity of producing evidence. He has not produced any evidence. There is no ground for allowing an adjournment. The dismissal in such case is virtually a dismissal on merits. The order is in the nature of an order covered by Order 17, Rule 3. Thus there may be a valid basis for allowing an appeal in such cases. This view is best illustrated by the case disposed of by my learned brother Deka, J. in that case the order was that the advocates were heard, petitioner had not taken steps, the Opposite Party was ready, the case could not be dragged on any longer. The petition was therefore rejected. This would be an order in the nature of an order covered by Order 17, Rule 3 and ought to operate as disposal of the case on the merits. Such a disposal of the petition may attract the application of Order 43, Rule 1(d) and even if there was any technical difficulty in the adoption of that view, I would follow it on the principle of stare decisis. In the view that I take of the matter, therefore, there is no conflict in the two views pressed at the bar. “While the view put forward by Mr. Sen on behalf of the applicant would cover cases of default of appearance and attract the application of Section 151, in cases within the scope of the decision in — ‘A.I.R 1916 Cal. 391 (1) (A) the proper remedy would be an appeal and not an application for restoration of an application dismissed for default of appearance. I may indicate that the remedies are not cumulative. For where an appeal lies, an application under Section 151 would not be competent. Nor will the Court have any jurisdiction to set aside its order in the exercise of its inherent powers.
27. On this view of the matter the application under Section 151 in this case was competent and the only question left to be considered is whether on facts the petitioner has a right to have his petition Page: 7for setting aside an ex parte decree passed against him, restored.
28. On 10-3-1951 the petition under Section 151 for restoration of the previous petition was put in. On 31-5-1951 the Opposite Party showed cause having received the notice of the application and 16th June was fixed for hearing. Parties were directed to take steps on or before 5th June. On 2nd June the date of hearing was adjourned to 26th June. The direction was that the parties should be ready on that date. On 26th June, the parties were ready. The case was adjourned as the Presiding Officer was busy otherwise. The petitioner also wanted time for settlement. The case was adjourned to 28th August. Parties were directed to be ready if the settlement failed. On 28th August the parties were present. The applicant examined himself and three witnesses. The plaintiff adduced no evidence. The case was disposed of by order dated 29-8-1951. The learned Judge held that the petitioner had failed to prove that he was unable to attend the Court on 12-2-1951 by reason of illness as alleged by him. In his view this fact could not be proved without the examination of his doctor. That doctor could not be examined on the 28th August. The reason was that the doctor had failed to attend. On 28th August the petitioner had applied to the Court that the case be adjourned for the statement of the doctor. Along with the application he filed a letter from the doctor who stated in his letter that he had been summoned but was unable to appear owing to his wife's illness. It is obvious that he was served and the petitioner had done all he could to produce the witness. If the witness failed to appear for reasons good or bad, an opportunity to examine the witness should have been given to the petitioner. Failure to allow him an opportunity to examine the doctor is a material irregularity. This is obvious from the fact that the petitioner has been dismissed mainly on the ground that the petitioner had failed to examine the doctor. But, for the failure of the doctor to attend the Court on that date the petitioner could not justifiably be held responsible. His previous conduct may not entitle him to any sympathy from the Court but as the order dismissing his application is vitiated by a material irregularity it should not stand.
29. For reasons given above, the petition is allowed. The case shall go back to the Court below for disposal of the application on the merits after examining the medical witness. The Rule is made absolute.
Sarjoo Prosad, C.J:— I have read with interest the judgments prepared by my learned colleagues, but on account of the divergence and conflict of views on the point under investigation, I consider it necessary to add a few observations of my own with the object, if possible, of reconciling the conflict.
30. This case was referred to a Full Bench by an order, dated 11-6-52, because a decision of this Court required re-consideration. The reference in the order evidently was to the decision of my learned Brethren Ram Labhaya and H. Deka, JJ. reported in — ‘A.I.R 1952 Assam 93 (Z2)’. It was also urged at the Bar that there was some conflict between this decision and another decision of Deka, J., sitting singly reported in — ‘AIR 1952 Assam 75 (M). The question which really arises for consideration in these cases is — whether, when an application under Order 9, Rule 13 of the CPC has been dismissed for default, the remedy of the party aggrieved is by way of an appeal under Order 43. Rule 1, Clause (d) of the CPC or by an application under S. 151 of the Code.
31. I find myself completely in agreement with my learned brethren on the point that there is no real conflict between the two decisions of this Court referred to above, and that when an application under Order 9, Rule 13 of the CPC is dismissed for default, an appeal is competent under Order 43, Rule 1(d) of the CPC but in so far as the Court dismissing the application for default is concerned, there may be, in appropriate cases, a remedy available to the party by an application under Section 151 of the Code. There is a long line of authorities in support of both the view points. I do not see any reason why an application under Section 151 of the Code could not be presented for restoration of the application under Order 9, Rule 13 of the CPC, which has been dismissed for default when the remedy by way of an appeal would be absolutely futile. Legally, both the remedies may be available to a party, but the question which would arise in most cases is, which is the more expedient and appropriate of the two. The circumstances under which the Court would interfere in its inherent powers to restore an application dismissed for default must necessarily be of an exceptional nature, and with a view to satisfy the demands of justice.
32. The decisions which favour the respective point of view have been fully discussed in the judgments prepared by my learned colleagues. That an appeal lies from an order rejecting an application to set aside an ex parte decree for default is well illustrated by the decisions in — ‘A.I.R 1916 Cal. 391 (1) (A)’ and a host of other cases. I do not propose to examine them in detail because they have been discussed almost threadbare in the other two judgments. I, however, wish to point out that the dismissal for default may be due to various reasons. The mere fact that the applicant may happen to be present but unable to go on with the case, should not, in my opinion, make any difference in regard to the nature of the remedy available. Whether ultimately he may succeed or not, is a different matter. It has been rightly pointed out in those decisions, if I may say so with respect, that there is nothing in terms of Order 43, Rule 1, clause (d) of the CPC, to show that a right of appeal is available to a party only when the application has been rejected on merits. There is no justification for taking such a narrow view of the clause and for reading into it words which were non-existent. It is true that some of the decisions cited arose on the dismissal for default of an application under Order 9, Rule 9 of the CPC and were given with reference to clause (c) of Order 43, Rule 1 of the Code. But there is, on principle, no difference between the language of clauses (c) and (d) of Order 43, Rule 1. Those decisions are, therefore, relevant to the investigation of the present question.
33. The learned Advocate General is right in contending that Rule 13 of Order 9 of the CPC, does not in terms provide for dismissal of the application on merits just as much as it does not provide for dismissal of the application for default. All that it provides for is that where the applicant satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as it thinks fit. The right to dismiss, therefore, has to be gathered by necessary implication. In other words, if the Court is not so satisfied, it should be ‘a fortiori’ held that the Court can reject the application whether on merits or on account of default. The argument is based upon the principle that if the Court has however to allow Page: 8the application on the terms of the section, it has necessarily the power also to reject it. If, therefore, it can be argued that the dismissal of the application under Order 9, Rule 13 on merits is appealable under clause (d) of Order 43, Rule 1 of the CPC, it could as well be argued that the dismissal of the application for default is similarly appealable. There is undoubtedly much substance in this contention and in my opinion it should prevail. It may be that on a minute examination of the facts of the different cases, some differences may be noticeable, but those differences do not affect the interpretation of these relevant provisions &, in my opinion therefore, a right of appeal in all such cases where the application is dismissed for default or dismissed on merits, would be available under clause (d) of Order 43, R. 1 of the CPC.
34. I, however, agree that in most of these cases, the right may be merely illusory and an appeal may not be a suitable remedy at all because the petitioner was prevented from presenting his case before the Court. There may be nothing on the record on the basis of which the party who has been prevented from appearing by causes beyond his control, could show to the appellate Court that the order of dismissal for default was wrong or contrary to law. If the appellate Court were to decide the matter by affidavits or make an order on enquiry it would mean, in other words, adopting the same procedure as the original Court itself could have done by giving a chance to the petitioner to show that there was sufficient cause for the default. The appeal in all such cases will be converted to all intents and purposes into a petition for restoration of the application under O. 9, R. 13 of the CPC. Instead of leading to a duplication of procedure, the purpose, therefore would be better served by giving an opportunity to the petitioner by the original Court itself to show cause for his absence. I cannot bring myself to believe that the law would disfavour such a procedure, and since there is no specific provision for it, this can only be done by an application under Section 151 of the CPC. It is difficult to hold that Order 9, read with Section 141 of the CPC, would apply to even such an application for restoration in view of the well known dictum of the Privy Council in — ‘17 All 106 (O)’. The only provision, therefore, under which the Court can act to give appropriate relief to the party is Section 151 of the Code. This view, as I have said, is also supported by another long line of authoritative pronouncements, the most prominent of which are the decisions in — ‘A.I.R 1927 Cal. 534 (P) and in — ‘AIR 1925 All. 773 (U). The observations of Sulaiman, J., as he then was, in the latter case are particularly significant.
35. I, therefore, hold that an application under Section 151 of the CPC, was competent and on merits I am inclined to the view taken by my brother Ram Labhaya, J., that the application should be allowed. It is true that no one can have any sympathy for the petitioner having regard to his past conduct in the litigation; but on 28-8-51 it is quite obvious that he examined himself and the other witnesses but could not examine the doctor due to certain circumstances beyond his control. On that date he had also filed a petition for examination of the doctor as that evidence was essential. This petition was accompanied with a letter from the doctor himself pleading absence on account, of the illness of his wife, the doctor having been present on a previous date. The Court itself thought that in the circumstances of the case the examination of the doctor was essential. But the Court in its order does not say anything about the application made by the petitioner for examination of the doctor on a future date on account of the circumstances alleged in his petition or in the letter of the doctor annexed thereto. For these reasons, the Court, in my opinion, did not exercise a proper judicial discretion in not giving an opportunity to the petitioner to examine the doctor concerned. The order of the Court is vitiated with material illegality and irregularity and deserves to be set aside.
36. The application should, therefore, be allowed. The case should go back to the Court below for disposal on merits after examining the doctor concerned. There will be, however, no order as to the costs of this application.
H. Deka, J.:— This Rule is directed against an order of the Additional Subordinate Judge, Upper Assam Districts, dated 29-8-51 whereby the learned Additional Subordinate Judge refused to set aside the order of dismissal of an application under O. 9, Rule 13 of the CPC made by the petitioner.
37. The opposite party, the Tripura Modern Bank, Ltd., instituted Title Suit No. 10 of 1947 on 3-10-1947 against the petitioner, Modanlal Agarwalla for a sum of Rs. 70,784-13-0 as due on overdraft account on the basis of a mortgage deed executed by the defendant. The defendant after repeated adjournments filed a written statement on 30-8-48 pleading ‘inter alia’ that the suit was had for not complying with certain provisions of the Assam Money Lenders Act and that the account as rendered by the plaintiff was not correct. The suit came up for hearing on 11-9-50 nearly three years after its institution and the defendant's pleader asked for an adjournment on the ground of defendant's illness, but the learned Additional Subordinate Judge refused the prayer for adjournment and proceeded to hear the suit ‘ex parte’. As a result, a preliminary mortgage decree was passed on 11-9-50 and on 30-9-50, the defendant made an application under Order 9, Rule 13 of the CPC for setting as de the ex parte decree pleading that he was ill and could not be present in Court on 11-9-50. On the basis of this application, a miscellaneous case was registered, it being Miscellaneous Case No. 27 of 1950. This proceeding came up for hearing on 12-2-51 and on that date, the petitioner did not appear nor were any steps taken on his behalf. The learned Additional Subordinate Judge at 1-45 p.m passed an order dismissing the miscellaneous case as the applicant was not found on call nor was any step taken on his behalf. About a month later, that is, on 10-3-51, the defendant came with a fresh petition for setting aside the order passed on 12-2-51 pleading that he could not be present in Court on that date due to illness and he filed a medical certificate along with this petition which was purported to be one under Section 151 of the CPC. On the footing of this application, Misc. Case No. 11 of 1951 was registered. This case was fixed for hearing on 26-6-51 on which date the petitioner filed a petition bearing number 783, for a short adjournment as he wanted to settle up the matter and it was adjourned till 28-8-51 on which date the parties were asked to be ready if the settlement failed. On 28-8-51, the petitioner was ready with three of his witnesses and proceeded to examine himself and the witnesses present but made an application that the doctor who treated him in his illness and gave him a medical certificate should be examined on some future date as the doctor could not come to Court for unavoidable reasons and he produced a letter along with this petition from the doctor who stated that he could not come to Court on that date due to his wife's illness. The learned Additional Subordinate Judge however, did not accept the prayer for examining the doctor on a future date, but proceeded to examine the petitioner and his witnesses who were present Page: 9in Court and they were accordingly examined and cross examined. On 29-3-51 the learned Additional Subordinate Judge passed an order rejecting the prayer for restoring the Misc. Case No. 27 of 1950 and in effect refusing to exercise his discretion under Section 151 of the CPC in the matter of restoring the proceeding under Order 9, Rule 13 of the CPC which was dismissed for default. The defendant petitioner has come to this Court challenging this order of the learned Additional Subordinate Judge and the main contention has been that the petitioner ought to have been given a chance by the learned Additional Subordinate Judge to produce the doctor who had issued a medical certificate and that the learned Additional Subordinate Judge had acted illegally and with material irregularity in not giving the defendant the opportunity he prayed for by his application of 28-8-51. An open Rule was issued by this Court on 2-3-52 and it came up for hearing before Thadani, C.J & Ram Labhaya, J. who passed an order on 11-6-52 in the case which runs as follows
“This matter must be heard by a Full Bench, as our decision on the question of the applicability of Section 151 of the CPC in regard to applications made under Order 9, Rule 13 of the CPC and rejected for default of appearance, requires re-consideration.”
38. With a view to understand the background of this order, I have to refer to two decisions of this Court, one reported in — ‘A.I.R 1952 Assam 75 (M)’ and the other in — ‘AIR 1952 Assam 93 (Z 2)’. In my view, there is not much of conflict in these two decisions but possibly what was intended by the above order was that this Court should decide in a Full Bench as to whether when an application under Order 9, Rule 13 of the CPC is dismissed for default, the remedy lies in filing an appeal under Order 43, Rule 1(d) of the CPC, or by way of an application under Section 151 of the CPC.
39. It may be said that the opinions of different High Courts or of the different Benches of the same High Court are found to vary on the point tout the consensus of opinion is that an appeal lies against the order of dismissal for default of an application for setting aside an ex parte decree — but there may be circumstances where the Court may give the required relief is exercise of its inherent power under Section 151 of the CPC when the petition is dismissed for no laches on the part of the petitioner.
40. I may begin with my own judgment reported in — ‘A.I.R 1952 Assam 75 (M)’ where I, sitting singly, held that an appeal is competent against an order of rejection of a petition under Order 9, Rule 13 of the CPC no matter whether on merits or for default and my opinion was based on the authority of the case of — ‘A.I.R 1916 Cal 391 (1) (A)’, which was a decision of Sir Asutosh Mookherjee and Newbould, JJ. In that case, I did not decide whether an application under Section 151 of the CPC would lie in case of any extreme emergency. The general implication is, of course, that when a remedy is available under any of the provisions of the Code of Civil Procedure, the inherent power under Section 151 of the CPC, need not be invoked.
41. In — ‘A.I.R 1952 Assam 93 (Z 2)’, it was held by a Division Bench of this Court consisting of Ram Labhaya, J.”, and myself that a second application may be entertained by the Court in exercise of its inherent power under Section 151 of the CPC for restoration of a probate proceeding dismissed for default. In that case, an application under Order 9, Rule 13 of the CPC did not come up for consideration nor an application under O. 9, Rule 9 of the CPC as such and it was held in that case that the second application for restoration of the proceeding was not governed by Order 9, Rule 9 of the CPC. Ram Labhaya, J. delivering the judgment of the Court expressed an opinion that Order 9, Rule 9, read with Section 141 of the CPC might cover such application. For the purpose of the present case, we need not refer to that decision further as it was not agitated in that case that an appeal under Order 43, Rule 1(c) of the CPC, would be the proper remedy and not an application under Section 151 of the CPC.
42. First, let us examine whether an appeal would be competent against an order of dismissal of an application under Order 9, Rule 13 of the CPC for default of appearance of the petitioner. Order 43, Rule 1(d) of the CPC provides that an appeal shall lie from an order under Rule 13 of Order 9, rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. The Rule does not say that an appeal will be competent only in cases where the application under Order 9, Rule 13 is rejected on consideration of the merits. There being nothing in the statute to the effect that an appeal is competent only when the order is passed on consideration of merits, it must be presumed that an order rejecting an application to set aside an ex parte decree no-matter under what condition passed, will be open appeal. We cannot insert words in the statute which are not already there and discriminate between applications rejected on the merits or for default. In — ‘AIR 1916 Cal 391 (1) (A)’, it was held that it was clear that under clause (d) of R. 1 of Order 43 of the CPC, an appeal was competent against an order dismissing for default an application to set aside an ex parte decree and that it was immaterial that the application had been dismissed not on the merits but for default. In other words it was held that an appeal would he in all cases against an order refusing to set aside an ex parte decree on the basis, of an application under Order 9, Rule 13 of the CPC and the case of dismissal of the application for default could not be discriminated. This view was accepted by several other High Courts including the Calcutta High Court and some of those decisions are: — ‘A.I.R 1929 Cal 407 (2) (I) : ‘A.I.R 1927 Pat 240 (C) : ‘AIR 1929 Pat 529 (2) (B)’ : ‘AIR 1938 All 737 (E & F)’ : ‘AIR 1943 Mad 584 (D)’ : A.I.R 1924 Lah 281 (1) (G)’ : ‘AIR 1935 Mad 609 (T) : ‘AIR 1929 Mad 757 (F.B) (L) : ‘AIR 1927 Bom. 1 (FB) (J)’ : ‘AIR 1947 Bom 328 (S) and : ‘AIR 1933 Rang 63 (K)’.
43. On the other hand, there is a line of decisions which suggest more particularly in the matter of an application under Order 9, Rule 9 of the CPC that if it is dismissed for default, the effective remedy is by an application under Section 151 of the CPC rather than by an appeal as provided under Order 43, Rule 1(c) of the CPC. There is not much difference in the wordings of clause (c) of Order 43, Rule 1 and those of Order 43, Rule 1(d). On this hypothesis, the learned Advocate for the petitioner has contended that even in cases of dismissal for default of an application under Order 9, R. 13 of the CPC, the effective remedy is by an application under Section 151 of the CPC and not by way of an appeal, as there will be nothing or very little if at all, before the appellate Court to decide the legality of the order on merits. The decisions relied on by the learned Advocate for the petitioner are: — ‘AIR 1932 Nag 101 (N)’ : ‘AIR 1928 Pat 335 (R)’; — ‘Bhubuneswar Prasad v. Tilakdhari Lal’, A.I.R 1919 Pat 192 (Z 3) : 17 All 106 (PC) (O). : ‘AIR 1925 All 773 (U)’ : ‘A.I.R 1935 Mad 609 (T)’ : ‘AIR 1947 Bom 328 (S)’ : ‘AIR 1927 Cal 534 (P) : ‘AIR 1929 Cal 17 (Q)’ and : ‘AIR 1952 Assam 75 (M).’
44. Let us examine these decisions first before examining the other series which says that an appeal is competent under Order 43, Rule 1(d) of the CPC.
45. — ‘17 All 106 (P.C) (O)’. This decision of the Judicial Committee has no bearing on the facts of this case as it relates to the applicability of Section 647 of the CPC of 1882 corresponding to Section 141 of the CPC of 1908 and it has been held therein that the proceedings referred to in that section include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth and do not include executions and the same interpretation has been given to this decision by the Division Bench of the Calcutta High Court in — ‘AIR 1927 Cal 534 (P)’ on which Mr. Sen placed greater reliance. — ‘AIR 1925 All 773 (U)’ is a decision of the Division Bench wherein Daniels, J. held that Order 9, read with Section 141 of the CPC applied to the case where an application was made for restoration of a proceeding under Order 9, Rule 9 of the CPC dismissed for default and that if there was no other remedy left to the applicant, Section 151 of the CPC applied. Sulaiman, J. who was the other Judge constituting the Bench observed that though it could not be said that the case came under Order 9, read with Section 141 of the CPC, Section 151 applied and the Court could entertain the application under its inherent jurisdiction. Daniels, J. observed in that case:
“But even if O. 9, R. 9 does not apply, I am not prepared to hold that, if a party prosecuting a restoration application is genuinely prevented from appearing, he is left without a resource. To hold this might be to work great injustice. A man might, for instance, accidentally break his leg on the way to Court.
If the view contended for by the applicant is correct, this accident would lead to his suit remaining irrevocably dismissed.”
46. Sulaiman, J. did not accept the view that the only remedy open to the aggrieved party was to appeal against the original order made under O. 9, R. 9 of the CPC and observed
“I fail to see why a Court cannot, on good cause shown, restore an application for setting aside a dismissal for default or an ex parte decree, which application, itself has been dismissed for default. He goes on further down to express the opinion that “it is easy to conceive of great hardship if this view is not to be accepted.”
47. The learned Judges in that case did not hold, as a matter of fact, that an appeal does not lie against the order of dismissal of an application under O. 9, R. 9 of the CPC for default, but opined that there may be circumstances which might justify invoking the inherent powers of the Court under;Section 151 of the CPC. In — ‘AIR 1932 Nag 101 (N)’, the decision of the Allahabad High Court reported in — ‘AIR 1925 All 773 (U)’, was followed and it was held that in the absence of an express provision in the Code, the application under Section 151 of the CPC would lie in order to do real and substantial justice and the order passed thereon must be regarded as passed under that section and as such, no appeal was competent from that order. It was expressed therein that there were conflicting decisions of the said Court on the point. The learned Judges did not consider the provision of O. 43, R. 1(c) of the CPC as to the competence of an appeal. ‘AIR 1919 Pat 192 (Z3) deals with an order relating to execution and it was held therein that O. 9, R. 9 of the CPC has no application to a proceeding in execution instituted under O. 21, R. 90 of the CPC and this case has therefore no material bearing, though the competence of an application under Section 151 of the CPC was considered in relation to the matter at issue, — ‘AIR 1928 Pat 335 (R)’, was a decision of a Division Bench of the Patna High Court where it was held that an order dismissing for default an application under O. 9, R. 9 of the CPC did not come under O. 9, R. 9 of the CPC and no appeal was competent under O. 43, R. 1(c) and this decision rested on the authority of another decision of the Patna High Court reported in — ‘Jagdish Narain v. Harbans Narain Singh’, AIR 1918 Pat 612 (Z4). It was further considered to be the obtaining practice of that Court at the time but relief was given by treating the appeal as an application under Section 115 of the CPC.
48. ‘AIR 1935 Mad 609 (T)’, the case reported here does not help us in any material sense. In that case, an ex parte decree was passed against the appellants and they applied under O. 9, R. 13 of the CPC to have it set aside. This application was dismissed for their default. They then applied to have that order set aside and their application restored and this was dismissed upon the merits. It is from this order that the appeal was preferred to the High Court and it was urged that the appeal would lie under O. 43, R. 1(c) of the CPC by force of the application of Section 141 of the CPC. It was held that no such appeal was competent as no appeal was provided under O. 43, R. 1 of the CPC. The judgment is rather too short and contains no discussion on the point.
49. ‘AIR 1947 Bom 328 (S)’. In this case, the point considered was whether an appeal would be competent from an order dismissing an application for restoration to file an application which was dismissed for default and which was itself filed for restoring to file a suit which was also dismissed for default. This, however, is not the case in this matter.
50. ‘AIR 1927 Cal 534 (P)’. This case was mainly relied on by the learned Advocate for the petitioner in support of his contention that the only remedy in the circumstances of the case was by way of an application under Section 151 of the CPC and not by an appeal as contended by the other side. It was held in this case that where an application under O. 9, R. 9 of the CPC has been itself dismissed for default, a second application under O. 9, R. 9, does not lie for the restoration of the first application, but in such circumstances, where it is proved that the default was due to no laches on the part of the applicant, the case becomes a fit one for the exercise of the Court's inherent power of doing justice conferred by Section 151 of the CPC and the second application should be treated as one for a review of the order dismissing the first application for default. In this case, it was not considered whether an appeal would lie under O. 43, R. 1 of the CPC against the original order of dismissing for default the application under O. 9, R. 9 of the CPC, but it was held that where there was no provision in the Code expressly providing for a remedy and such remedy is called for in order to do real and substantial justice, the provision of S. 151 may and should be resorted Page: 11to. Similar view was expressed in — ‘AIR 1929 Cal 17 (Q)’, and in both the cases, the judgment of the Court was delivered by Mr. M.N Mukerji, J. This finishes the line of cases cited on behalf of the petitioner and except the observation made by Sulaiman, J. — ‘AIR 1925 All 773 (U)’, we nowhere find any reference to a case of an application under O. 9, R. 13 of the CPC dismissed for default.
51. Apart from relying on these judicial decisions, Mr. Sen for the petitioner has further argued that in effect, no relief would be obtained by any party coming to the appellate Court against the order of the lower Court dismissing an application under O. 9, R. 13 of the CPC for default inasmuch as there will be no evidence as to why the defendant petitioner defaulted in the matter of appearance on that date. The result would be that the appeal would be dismissed without consideration as to whether there were sufficient reasons which stood in the way of defendant appearing in Court on that particular date. This is undoubtedly an argument that has some force, but on the other hand, it can be said that the appellate Court might decide the case on affidavit or might even examine the witnesses or in a suitable case might send down the case to the lower Court for recording of the evidence in the matter. This of course would be a lengthy process and might be a costlier remedy, but when the statute provides that an appeal lies against the order refusing to set aside an ex parte decree, we cannot distinguish the cases where those applications were dismissed for default of the petitioners. We cannot, however, rule out the possibility that there may be cases where the trial Court might give relief in exercise of its inherent powers as in the case of the petitioner breaking leg as Daniels, J. puts it or where a party turns up five minutes late after the case was called as in the Patna Case reported in — ‘AIR 1928 Pat 335 (R)’
52. ‘AIR 1916 Cal 391 (1) (A)’, was followed in my decision reported in — ‘AIR 1952 Assam 75 (M)’. The same view has been held in — ‘AIR 1927 Pat 240 (C)’, and Adami, J. was a party to this decision who was a party to the case reported in — ‘AIR 1928 Pat 335 (R)’. In — ‘AIR 1929 Pat 529 (2) (B)’, the identical view is held as in — ‘AIR 1916 Cal 391 (1) (A)’, and it was observed by Chatterji, J that there is no reason to hold that the provision for an appeal is limited only to the cases where an application under O. 9, R. 13 is dismissed on the merits and that there is no reason to take such a narrow view of the clause and to read into it words which are non-existent. In — ‘AIR 1943 Mad 584 (D)’, Somayya, J. follows the decision reported in — ‘AIR 1929 Pat 529 (2) (B)’, and holds that an order dismissing for default an application under O. 9, R. 9 of the CPC is appealable under O. 43, R. 1(c)’. Similar view is held in — ‘AIR 1936 All 737 (E & F) : ‘AIR 1929 Cal 407 (2) (I)’, is a judgment of the Division Bench to which M.N Mukerji, J. was a party and therein it was held that even in a case where the order of dismissal was passed in an application under O. 21, R. 90 of the CPC on account of default of appearance on the part of both the parties to the proceeding, an appeal is maintainable under O. 43, R. 1(j) in view of the fact that such an order comes within the purview of O. 21, R. 92 of the Code. In — ‘AIR 1924 Lah 281 (1) (G)’. Harrison, J. followed the decision of the Calcutta High Court reported in — ‘AIR 1916 Cal 391 (1) (A)’, and two other decisions of the same Court reported in — ‘Sacheeni v. Kanta Hazi’, AIR 1917 Cal 548 (2) (Z5) and : AIR 1917 Cal 558 (H)’, & held that where an application to set aside an ex parte decree was consigned to the record room owing to the applicant's failure to pay the process-fee for service of notice amounted to a dismissal of the application to set aside the ex parte decree and was appealable as an order under O. 9, R. 13 of the CPC ‘AIR 1927 Bom 1 (FB) (J)’, is a decision of the Full Bench of the Bombay High Court wherein it was held that an appeal lies from the order rejecting the application for an order to set aside a decree passed ex parte when the order is made because the conditions which were lawfully imposed on the defendants in the shape of adequate security were not complied with. In that case, Mirza, J. observed that there is nothing in the language of O. 43, R. 1(d) to justify the conclusion that an order of rejection so arrived at is excluded from its operation Marten, C.J in course of the judgment considered that it may be even “hopeless” to get a remedy in appeal in a case like the one before the Full Bench but even then on the construction of the statute, he thought it unnecessary to take into consideration that aspect of the matter. ‘AIR 1929 Mad 757 (L)’, is a decision of the Full Bench of the Court wherein it was observed as follows:
“I think we should not be justified in laying down any general principle that an ordinary civil Court has inherent power to set aside its own order and to interfere in any case in which it thinks a failure of justice has occurred when the aggrieved party has another remedy by which it can be set aside even though the remedy is not as summary or as cheap.”
53. ‘AIR 1933 Rang 63 (K)’, is a decision of the Rangoon High Court where the principle of the Full Bench decision reported in ‘AIR 1927 Bom 1 (J)’, was followed.
54. The consensus of the judicial opinion, therefore, is to my mind that no matter whether an application under R. 13, O. 9, is dismissed for default or on the merits, an appeal will be competent under O. 43, R. 1(d) of the CPC. As to whether an application under Section 151 of the CPC would lie should be left to the circumstances of the case. We need not set any limit to or set out the conditions under which a party might claim relief under inherent powers of the Court. In the above view, as a matter of fact, there is no conflict between the two decisions of the Assam High Court reported in — ‘AIR 1952 Assam 93 (Z2)’ and : ‘AIR 1952 Assam 75 (M)’. Mr. Lahiri raised a preliminary objection that no revision is competent against an order passed under Section 151 of the CPC but it will be enough to say that there are ample authorities to hold that in a suitable case, the High Court can exercise its power of revision even against an order passed under Section 151 of the CPC.
55. If we strictly construe the terms of reference, this Bench is not called upon to express any opinion on the facts of this particular case, but since my lord the Chief Justice and my learned brother Ram Labhaya, J. are for allowing the application to the extent indicated in their judgments, I agree with the proposed course.
A/V.S.B
56. Ordered accordingly.