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Legal Opinion Summary — Mootham, J.

Factual and Procedural Background

In 1944 Lalla Singh (the plaintiff) instituted a suit in the court of the Civil Judge, Farrukhabad. On 10 July 1944 the Civil Judge granted the defendants (the applicants before the High Court) leave to deliver interrogatories and directed the plaintiff to file answers by 26 July 1944. On 26 July, the plaintiff did not appear and no answers had been filed; on the defendants' application the trial court dismissed the suit, purportedly under Order XI, Rule 21 of the Code of Civil Procedure.

On 25 August 1944 the plaintiff applied to the learned Civil Judge for restoration of the suit, stating that both he and his guardian (the plaintiff being a minor) were seriously ill on the date answers were to be filed. The learned Civil Judge concluded that he had erred in dismissing the suit because no order under Order XI, Rule 11 had been made and, consequently, he had no power under Rule 21 to dismiss for non‑answering. On 10 February 1945 he accordingly allowed the restoration application, invoking his inherent powers under Section 151 of the Code.

The defendants sought revision in the High Court under Section 115 of the Code of Civil Procedure, challenging the Civil Judge's 10 February 1945 order restoring the suit. They attacked that order on two grounds: (1) that the 26 July dismissal was valid and, if it was not, it was an order that should have been challenged by the statutory appeal under Order XLIII, Rule 1(f) rather than by inherent powers; and (2) that the restoration order was invalid because the application to restore had been filed by the minor plaintiff himself rather than by his guardian.

Legal Issues Presented

  1. Whether the trial court's order of 26 July 1944 dismissing the plaintiff's suit for failure to answer interrogatories was valid in law, having regard to the requirements of Order XI (particularly the distinction between Rule 1, Rule 11 and Rule 21).
  2. Whether the Civil Judge had power under Section 151 (inherent jurisdiction) to set aside or restore a suit after such a dismissal when a statutory remedy (appeal under Order XLIII, Rule 1) was available.
  3. Whether the 10 February 1945 restoration order was a nullity because the restoration application had been filed by the minor himself in contravention of Order XXXII, Rule 5(1), and if contravention occurred, whether the court nonetheless had discretion under sub‑rule (2) to refuse to discharge the order.

Arguments of the Parties

Applicants' (Defendants') Arguments

  • The dismissal of the suit on 26 July 1944 was a valid order; accordingly the subsequent restoration ought not to have been made or should have been challenged by an appeal under Order XLIII, Rule 1(f) rather than by invoking inherent powers.
  • The restoration order of 10 February 1945 was a nullity because the application leading to it had been filed by the plaintiff himself, who was a minor, rather than by his guardian or next friend as required by Order XXXII, Rule 5(1).

Plaintiff's (Minor) Contentions and Trial Judge's View

  • The plaintiff stated that both he and his guardian were seriously ill on the date answers to interrogatories were to be filed, which prevented compliance with the 26 July direction.
  • The learned Civil Judge accepted the illness explanation and concluded that the 26 July dismissal was erroneous because no prior order under Order XI, Rule 11 (requiring answers) had been made; the 10 July order was treated as an order under Rule 1 (leave to deliver interrogatories) rather than an order under Rule 11.
  • The learned Civil Judge considered it proper to use his inherent powers under Section 151 to restore the suit in the interests of justice and for the benefit of the minor plaintiff.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Rampat Saran v. Habib Ullah Khan Explains that an order under Order XI, Rule 21 can be passed only when there is a prior order under Rule 11 requiring answers to interrogatories; distinguishes Rule 1 (delivery of interrogatories) from Rule 11 (court order to answer). Used to conclude that the 10 July order in the present case was under Rule 1 (leave to deliver interrogatories) and not an order under Rule 11, therefore the trial court lacked power under Rule 21 to dismiss on 26 July.
Prem Sukh Chunder v. Indro Nath Banerjee Affirms that granting leave under Rule 1 does not amount to an order under Rule 11 to answer interrogatories. Relied upon to support the view that the 10 July order did not constitute an Order XI, Rule 11 order, reinforcing the finding that the dismissal under Rule 21 was wrong in law.
Nageshar Prasad v. Gudrimal Narain Das Holds that inherent jurisdiction under Section 151 cannot be used to disturb a decree or order where a statutory remedy provided by the Code exists and has not been availed of. Applied to observe that the trial court could not lawfully set aside the dismissal by invoking Section 151 where Order XLIII, Rule 1 provided an appeal remedy against an Order XI, Rule 21 dismissal.
Lalumal Dholumal v. Harumal Lalsing Indicates that under Order XXXII, sub‑rule (2), a court may discharge an order made on an application filed in contravention of sub‑rule (1) but that the court has discretion and need not set aside an order if it is satisfied the order benefited the minor. Relied upon to conclude the trial court had discretion to refuse to discharge an order made on an improper application for a minor when satisfied that the order was for the minor's benefit.
Asutosh Ghosh v. Indu Bhusan Ghose Considered extent of inherent powers under Section 151; in that case the lower court's exercise of Section 151 was held improper and the order was set aside. Cited as an authority where the exercise of inherent jurisdiction was disapproved and an order made under Section 151 was set aside; used in the discussion of whether the High Court should interfere.
Ramasamy Chettiar v. R.G. Orr Dealt with a suit wrongly filed in a court without jurisdiction; the Chief Justice held that the court of first instance exercised jurisdiction not vested in it and interference was necessary. Referred to as an example where interference was considered necessary despite reluctance, supporting the proposition that courts sometimes must set aside orders made without jurisdiction.
Kuti Ram Bibi v. Jitendra Nath Roy Demonstrates an instance where a judge (Costeleo, J.) declined to set aside an order of an appellate court made without jurisdiction when setting it aside would have restored an order improperly made by the trial court. Relied on to show contrasting authority where the court refused to interfere, supporting discretionary restraint in some circumstances.
Rameshwar Mahton v. Dwarka Prasad Bench refused to set aside an order made without jurisdiction where the plaintiff had an available statutory remedy (revision) and would have succeeded had he pursued it. Used as an authority supporting the proposition that interference is not always appropriate when the party had a statutory remedy which he failed to pursue.

Court's Reasoning and Analysis

The High Court undertook a twofold analysis: (A) the legality of the trial court's dismissal of 26 July 1944; and (B) the validity and effect of the trial court's subsequent restoration of the suit on 10 February 1945.

  1. On the 26 July dismissal:
    • The High Court held that the dismissal was wrong in law because an Order XI, Rule 21 dismissal presupposes a prior order under Rule 11 directing answers to interrogatories.
    • Drawing on Rampat Saran v. Habib Ullah Khan, the Court explained the procedural distinction between: (i) Rule 1 (delivery of interrogatories, which may be allowed on leave), and (ii) Rule 11 (a court order requiring answers). The Court found that the 10 July direction was under Rule 1 and was not an Order XI, Rule 11 order.
    • Prem Sukh Chunder v. Indro Nath Banerjee was relied upon to reinforce that leave under Rule 1 does not equate to a Rule 11 order. Consequently, the trial court lacked jurisdiction under Rule 21 to dismiss on 26 July.
  2. On the use of inherent jurisdiction (Section 151) to restore the suit:
    • The Court recognized the general proposition that Section 151 enables the court to act for the ends of justice or to prevent abuse of process, but the power is not available to circumvent a specific statutory remedy provided by the Code.
    • Nageshar Prasad v. Gudrimal Narain Das was applied to state that where a statutory remedy exists (here, appeal under Order XLIII, Rule 1 from an Order XI, Rule 21 dismissal), a party cannot ignore that remedy and seek to rely on inherent jurisdiction to disturb an order.
    • Thus the trial judge was wrong in treating Section 151 as authorising the restoration in place of the statutory appeal process; the 26 July order was illegally made and the subsequent use of Section 151 to restore the suit was, in principle, unavailable when the statutory remedy had not been invoked.
  3. On the validity of the restoration application filed by the minor:
    • The Court noted that Order XXXII, Rule 5(1) requires applications on behalf of a minor to be made by a next friend or guardian for the suit, but sub‑rule (2) empowers the court to discharge an order made on an application filed in contravention of sub‑rule (1).
    • Relying on Lalumal Dholumal v. Harumal Lalsing, the Court held that the court has discretion and need not discharge an order if it is satisfied that it was for the benefit of the minor. This supported the learned Civil Judge's approach of treating the restoration application as acceptable in the circumstances.
  4. On exercising appellate or revisional discretion:
    • The Court reviewed conflicting authorities: some (Asutosh Ghosh; Ramasamy Chettiar) in which superior courts set aside orders made improperly under inherent jurisdiction or without jurisdiction; others (Kuti Ram Bibi; Rameshwar Mahton) where courts declined to set aside such orders when doing so would have restored prior improper orders or where a statutory remedy existed and could have been pursued.
    • The High Court emphasised that the power under Section 115 is discretionary and that it was not obliged to exercise it in this case. The Court was persuaded that had the defendants appealed under Order XLIII, Rule 1 against the Order XI, Rule 21 dismissal they would likely have obtained a restoration order.

Holding and Implications

Holding: The High Court concluded that the Civil Judge had acted illegally both in dismissing the plaintiff's suit on 26 July 1944 and in directing its restoration on 10 February 1945. Nevertheless, exercising the discretionary powers vested in the High Court by Section 115 of the Code of Civil Procedure, the High Court declined to interfere with the restoration order in these proceedings and rejected the revision application (the application under Section 115) with costs.

Implications:

  • Direct effect on the parties: The revision application before the High Court was dismissed and costs were awarded accordingly; the outcome means that, as between these parties in this proceeding, the High Court did not set aside the Civil Judge's restoration order of 10 February 1945.
  • Broader legal implications: The Court emphasised and applied established principles regarding the limits of inherent jurisdiction (Section 151) where statutory remedies exist and the discretionary character of revisional powers under Section 115. The opinion did not purport to lay down a new legal precedent but applied and reconciled existing authorities in exercising discretion on the facts of the case.

Note: This summary is confined strictly to the material and reasoning contained in the provided opinion and does not add facts or infer matters not explicitly stated in the text.

    Chander Bhan Singh v. Lallu Singh

    Mootham, J.:— This is an application under section 115 of the Code of Civil Procedure for the revision of an order of the Civil Judge of Farrukhabad dated the 10th February, 1945. The circumstances giving rise to this application are as follows. In the year 1944 Lalla Singh filed a suit in the court of the Civil Judge of Farrukhabad, and on the 10th July of that year the court gave leave to the defendants, the applicants before me, to deliver certain interrogatories to the plaintiff and directed the latter to file his answers thereto by the 26th July. On that date, no answer having been filed and the plaintiff not appearing, the court on the application of the defendants dismissed the suit, purporting to act., under order XI, rule 21 of the Civil Procedure Code.

    On the 25th August, 1944, the plaintiff applied to the learned Judge for the restoration of the suit on the ground that on the date on which answers to the interrogatories should have been filed both he and his guardian (the plaintiff being a minor) were seriously ill. The learned Judge was satisfied that, for the reasons given by the plaintiff, answers to the interrogatories could not be filed by the date fixed; and he was further of opinion that his order dismissing the suit was one which in any case he should not have made as he had overlooked the fact that as no order had been made under order XI, rule 11, directing the plaintiff to answer the interrogatories, he had no power under rule 21 of that order to dismiss the suit if the interrogatories were not answered. In these circumstances he was of opinion that the proper course was for him to exercise his inherent powers under section 151 of the Code, and accordingly he, on the 10th February, 1945, allowed the application and directed the restoration of the suit.

    This order is now attacked on two grounds. It is said, first, that the order of the learned Judge of the 26th July dismissing the suit was a valid order and, if it were not, the court had no inherent power under section 151 to set it aside as the order was one which was appealable under order XLIII, rule 1(f); secondly, it is said that the order of the court dated the 10th February, 1945, is a nullity inasmuch as it was made on an invalid application—the application being invalid because it was filed not by the plaintiff's guardian but by the plaintiff himself, who was admittedly a minor.

    It is in my opinion clear that the order of the learned Civil Judge of the 19th July, 1944, dismissing the plaintiff's suit, was wrong in law. In Rampat Saran v. Habib Ullah Khan(1) it was pointed out that

    “An order under that rule (that is to say order XI, rule 21) can be passed only when there is a previous order under rule 11, requiring a party to answer interrogatories. There are two stages in which the application proceeds. The first is indicated in rule 1. Under that rule a party simply delivers certain interrogatories to be answered by the other party. The other party may or may not comply with the request. When the party to be questioned fails to answer the interrogatories, the party interrogating has a right to come before the court and to obtain an order under rule 11 for an answer. It is then that the court decides whether the party interrogated must answer or not….. It is when the court has ordered certain interrogatories to be answered and there is a failure that the question arises whether the failure should be punished and the order enforced by the provision of rule 21.”

    It is clear that in this case no order was made by the court under order XI, rule 11, but it is said that the court's original order of the 10th July, allowing interrogatories to be delivered and directing the plaintiff to answer them by the 26th July, amounted to an order within the meaning of rule 11. In my opinion this was not so, for on that date the court did no more than make an order under rule 1, and there can be no doubt the granting of leave under that rule does not amount to an order to answer interrogatories under rule 11: Prem Sukh Chunder v. Indro Nath Banerjee. It is, therefore, to my mind clear that the learned Civil Judge had no power on the 26th July to dismiss the suit; but it is in my judgment equally clear that, having dismissed the suit, he had no authority under section 151 of the Code subsequently to direct its restoration, for it is well established that where a party has neglected to avail himself of a remedy provided by the Code of Civil Procedure it is not open to him to invite the court by virtue of its inherent jurisdiction to disturb a decree or order which he has failed to challenge in a statutory manner: Nageshar Prasad v. Gudrimal Narain Das(2). A court has jurisdiction to pass an order under section 151 whenever it is necessary for the ends of justice or to prevent the abuse of a process of court, but it cannot be said that the exercise of this power is necessary to meet the ends of justice or to prevent the abuse of a process of the court where there is a specific remedy provided by the Code applicable to the circumstances of the case. Order XLIII, rule 1, gives a party a right to appeal from an order passed under order XI, rule 21, and in my opinion, therefore, the learned Civil Judge in passing his order of the 26th July, 1944, acted illegally in the exercise of his jurisdiction.

    With regard to the question whether, on the 10th February, 1945, the court had before it a valid application, it is clear that although order XXXII, rule 5(1), says that every application to the court on behalf of a minor shall be made by his next friend or by his guardian for the suit, sub-rule (2) of that order provides that a court may discharge an order which has been made on an application filed in contravention of the provisions of sub-rule (1). In my opinion the court in such cases has a discretion in the matter and it is not bound to set aside such an order if it is satisfied that the order was for the benefit of the minor. This was the view taken in Lalumal Dholumal v. Harumal Lalsing, with which I respectfully agree.

    The position is, therefore, that the learned Civil Judge acted illegally in dismissing the plaintiff's suit on the 26th July and that he acted illegally in directing the restoration of the suit on the 10th February 1945. I have no doubt that in passing his order of the 10th February, 1945, the learned Civil Judge firmly believed that he was taking the best step available to remedy the position created by his earlier erroneous order of the 26th July, and that in so doing he was acting for the benefit of the minor plaintiff. In so far as the effect of the one illegal order has been to set aside another illegal order and thus to restore the parties to their original position, I should not be disposed in the exercise of my discretionary powers under section 115 of the Code to set aside the second only of such illegal orders if this course can be avoided. It has however been urged upon me that, in view of the fact that the learned Civil Judge in passing his order of the 25th July acted without jurisdiction or, as I consider, acted illegally in the exercise of his jurisdiction, I have no choice in the matter but must direct that the second of his orders must be set aside. I have been referred to the cases of Asutosh Ghosh v. Indu Bhusan Ghose and Ramasamy Chettiar v. R.G Orr(3). The first of these cases was a civil revision in which Cuming and Page, JJ., considered the extent of the inherent powers of a Judge under section 151 of the Civil Procedure Code, and being of opinion that in the circumstances of the case the Judge of the lower court had improperly exercised his powers under that section they set his order aside. The learned Judges in this case do not, however, appear to have considered whether the order they made was one the making of which was subject to their discretion, nor does it seem that they were invited to do so. In Ramasamy Chettiar's case the application for revision arose out of a suit for damages for breach of a covenant in an agreement which had been wrongly filed in a court which had no jurisdiction to entertain it. Sir Arnold White, C.J, held that the court of first instance exercised a jurisdiction not vested in it by law, and, although he did so with obvious reluctance, he considered that he was bound to interfere.

    On the other hand Costeleo, J., in Kuti Ram Bibi v. Jitendra Nath Roy declined to set aside an order of an appellate court, made without jurisdiction, when the effect of so doing would have been to restore an order improperly made by the trial court; and in Rameshwar Mahton v. Dwarka Prasad a Bench of the Patna High Court refused to set aside an order made by a court, although such order was made without jurisdiction. In that case an order had been made dismissing a suit on a preliminary point. It was open to the plaintiff to apply for revision of that order under order XLVII, rule 1, but instead of doing so he asked the trial court for an order restoring the suit to be made in exercise of its inherent powers. The Bench held that in the circumstances the lower court had no power to act under section 151 of the Code, but as the plaintiff would undoubtedly have succeeded had he pursued the remedy allowed by law, namely revision, it was not a fit case for interference.

    The exercise by the High Court of the powers vested in it by section 115 of the Code of Civil Procedure is, by the terms of the section itself, discretionary, and accordingly I do not think that the law imposes any obligation on me to exercise those powers in this case. There is no reason to doubt that had the opposite party appealed under order XLIII, rule 1, against the order, dismissing his suit he would have obtained an order for its restoration; and in my opinion this is a fife case in which my discretion should be exercised in favour of the opposite party. The application is accordingly rejected with costs.

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    Chander Bhan Singh v. Lallu Singh
    (Sep 18, 1946)