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  • Bose, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

A concise statement of the events and procedural steps, drawn exclusively from the opinion:

  • On 4-1-1945 the trial Court directed the plaintiff to make discovery of his account books on 29-1-1945.
  • On 29-1-1945 the defendant complained that no discovery had been made; the Court then fixed the case for 9-4-1945.
  • No discovery was made on 9-4-1945. The defendant asked that the suit be dismissed for want of prosecution under Order 11, Rule 21 of the Code of Civil Procedure (CPC).
  • The order-sheet recorded the trial Court's reason: “The plaintiff was very negligent. He should have, if he had no account books, filed an affidavit to that effect. Now the defendant (sic) cannot give evidence that the plaintiff has no account books.” (The opinion notes the word “defendant” is a slip for “plaintiff”.)
  • The plaintiff had entered the witness-box and sought to depose on oath that he had no account books, but the trial Court would not allow this in lieu of the formal affidavit required by the Code.
  • The order dismissing the suit was signed (time recorded as 12:12 P.M.). Later the same day the plaintiff's counsel filed two applications to set aside that order, asserting (i) that he had informed the defendant's counsel in January 1945 that the plaintiff had no account books; (ii) the plaintiff's pleader expected the plaintiff to state on oath in the witness-box; and (iii) the plaintiff was prepared to make an affidavit within half an hour but was not permitted to do so.
  • The trial Court entertained the application and set aside its earlier order (the setting-aside is recorded as occurring on 26-6-1945). The matter then came in revision for determination whether the trial Court had jurisdiction to set aside its order and whether it was otherwise proper.

Legal Issues Presented

  1. Whether a trial Court may invoke its inherent jurisdiction under Section 151 CPC to set aside an order dismissing a suit for want of prosecution when the Code itself provides remedies (appeal under Order 43, Rule 1 and review under Order 47, Rule 1) in respect of such an order.
  2. Whether, on the facts of this case, it was proper for the trial Court to set aside its order dismissing the suit for want of prosecution under Order 11, Rule 21 CPC.

Arguments of the Parties

Plaintiff's Arguments

  • The plaintiff's counsel had informed the defendant's counsel in January 1945 that the plaintiff never maintained account books and therefore had none to discover.
  • The plaintiff's pleader believed that the plaintiff, when put into the witness-box, would state on oath that he had no account books; accordingly the pleader did not file a formal affidavit of non-possession prior to that hearing.
  • When objection was taken to the want of an affidavit, the plaintiff stated he would make the affidavit within half an hour, but the Court refused to allow time and dismissed the suit.

Defendant's Position

  • The defendant complained of the non-compliance with discovery directions and moved for dismissal of the suit for want of prosecution under Order 11, Rule 21 CPC when discovery was not made on 9-4-1945.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
I.L.R (1940) Nag. 5381 (Division Bench, p.548) Courts must not resort to Section 151 when the Code expressly deals with the matter; such resort is acting without jurisdiction. Relied on as a binding Division Bench authority supporting the proposition that inherent jurisdiction cannot be used where the Code provides specific remedies.
57 All. 242 (Privy Council) at p.250 No general judicial discretion exists outside the limits of a statute to dispense with its provisions; statutory regime excludes an implied general discretion. Invoked to reinforce the principle that where an Act governs a matter, courts cannot imply a general power to override its provisions.
44 Cal. 929 High Court precedents taking a similar view on limits to inherent jurisdiction. Cited as part of a body of authorities supporting the main proposition; no extended analysis provided in the opinion beyond citation.
3 Rang. 63 High Court authority with a similar approach to the limits of inherent jurisdiction where statute provides remedies. Cited as supporting authority.
A.I.R. 1927 Cal. 158 As above: similar view of other High Courts. Cited in support of the proposition that inherent jurisdiction cannot be used when statutory remedies exist.
A.I.R. 1939 All. 497 Another High Court decision aligning with the same principle. Cited as further authority supporting the rule.
A.I.R. 1931 Mad. 791 Madras High Court authority on the same point. Referred to as additional supporting authority.
31 N.L.R. 53 Illustrates that inherent powers may be invoked to correct errors leading to injustice when the party is not at fault. Distinguished: the Court held the principle applies only when injustice arises through no fault of the party; here the plaintiff was at fault.
Civil Revision No. 34 of 1945 (same Court) Permitted invoking inherent jurisdiction where the Court itself made an error and the party was not to blame. Distinguished on the ground that that case involved a Court's mistake and no fault of the applicant; the present case involved plaintiff non-compliance.
9 Cal. 923 A case said to contain no decision on the point; judge had not finally decided how an application to set aside would be treated. Not treated as an authority on the present point; the opinion notes no decision was given in that case.
A.I.R. 1932 Bom. 271 Referenced but the opinion states the author had not seen this report. Not relied on because the judge had not seen the report.
58 Mad. 84 Example of the exception where orders were passed under a mistaken belief and neither party was at fault. Noted as an instance where inherent jurisdiction or relief was permissible because the Court itself erred and neither party was to blame.
29 N.L.R. 176 (Macnair, J.) Holds that inherent powers may operate while the Court remains seized of the case; once a case is dismissed the Judge ceases to have seisin and cannot retake it except by modes provided in the Code. Quoted and the important qualification emphasised: the lower Court omitted the qualification; supports the proposition that jurisdiction ceases after dismissal.

Court's Reasoning and Analysis

A step-by-step exposition of the Court's legal analysis as stated in the opinion:

  1. The Court began by addressing jurisdiction. It observed that the Code provides two distinct statutory remedies against an order dismissing a suit for want of prosecution: an appeal (Order 43, Rule 1) and a review (Order 47, Rule 1). Because those remedies are expressly provided by the Code, the Court held that the trial Court could not invoke the inherent jurisdiction under Section 151 CPC to set aside such an order. The opinion relied on a prior Division Bench decision (I.L.R. (1940) Nag. 5381) and authority of the Privy Council to support this principle.
  2. The opinion recognised a narrow exception: inherent jurisdiction may be invoked to correct errors that have led to injustice where the party seeking relief is not at fault. The Court explained and applied decisions (including 31 N.L.R. 53 and Civil Revision No. 34 of 1945) illustrating that principle, but stressed the limiting condition expressed repeatedly in the cited authorities—relief by inherent jurisdiction is permissible only "through no fault of a party."
  3. The Court carefully distinguished the exception from the present facts. Here, the trial Court's order of dismissal was founded on a finding of the plaintiff's negligence in failing to file the affidavit required by the Code. The plaintiff had not complied with the procedural requirement to file an affidavit denying possession of account books; instead the plaintiff attempted to give oral evidence in the witness-box. The opinion emphasised that that non-compliance was the plaintiff's fault, not a mistake of the Court.
  4. The Court considered whether the application to set aside the order could be treated as an application for review under Order 47, Rule 1. It noted that mere labelling of an application will not usually prejudice a party and that it might have treated the application as one for review had the matter fallen within the terms of Order 47, Rule 1. But the Court observed that review jurisdiction is extremely limited and only available on the grounds specified in that provision; absent falling squarely within Order 47, Rule 1, the Court cannot review its decision.
  5. The opinion addressed a substantive contention raised on the plaintiff's behalf that the Code did not require an affidavit where the party in fact had no books. The Court examined Order 11, Rule 13 and Appendix C Form No.5 and concluded that the form expressly contemplates disclosure that the party "has not now and never had" any account book relating to the matters in question. The schedules require listing documents in possession or power. Therefore, the Court held that the Code did require the filing of an affidavit indicating non-possession when appropriate, and the plaintiff's failure to file such an affidavit was a failure to comply with the Code.
  6. The Court noted that even if the contention that an affidavit was not required had been correct, that would have amounted at most to an error of law, and an error of law is not a ground for review. Here however the Court found the plaintiff's argument incorrect on its face because the applicable form and rules required the affidavit.
  7. Because the trial Court had reached deliberate conclusions—that the plaintiff was negligent and that it would not grant further time—the revising Court held that the trial Court could not, in exercise of review or inherent jurisdiction, alter that decision. The revising Court concluded that the trial Court had no jurisdiction to set aside its dismissal order in the circumstances and that its setting-aside was improper.

Holding and Implications

The Court's final disposition and its immediate consequences:

Core ruling: The revising Court allowed the application in revision, set aside the trial Court's order that had set aside the dismissal, and restored the order of 9-4-1945 dismissing the suit for want of prosecution under Order 11, Rule 21 CPC.

Direct implications for the parties (as stated in the opinion):

  • The dismissal of the suit for want of prosecution under Order 11, Rule 21 (the order dated 9-4-1945) stands restored.
  • Costs of the revision application were to be paid by the plaintiff non-applicant; counsel's fee was fixed at Rs. 40.

Broader implications as reflected in the opinion:

  • The opinion reaffirms the principle that where the Code of Civil Procedure provides specific remedies (appeal and review) for a particular order, the inherent jurisdiction under Section 151 CPC cannot be invoked to circumvent those statutory remedies, except in narrowly defined circumstances where the Court itself has committed an error causing injustice and the aggrieved party is blameless.
  • The opinion does not purport to lay down a new precedent beyond applying and explaining existing authorities; rather it applies established principles to the facts and restores the statutory remedy regime.

Disposition: Application allowed; order of lower Court set aside (the setting-aside); the original dismissal under O.11, R.21 restored; costs and fee as above.

Show full summary ...

    Krishnakumar v. Jawand Singh

    1. On 4-1-1945 the trial Court directed the plaintiff to make discovery of his account books on 29-1-1945. On the next hearing, 29-1-1945, the defendant complained that no discovery had been made. The Court then fixed the case for 9-4-1945. Since no discovery was made even on that date the defendant asked that the suit be dismissed for want of prosecution under O. 11, R. 21 of the CPC. This was done for the following reasons set out in the order-sheet:

    “The plaintiff was very negligent. He should have, if he had no account books, filed an affidavit to that effect. Now the defendant (sic) cannot give evidence that the plaintiff has no account books.”

    2. (The word ‘defendant’ in the order-sheet is clearly a slip for ‘plaintiff.’) It seems that the plaintiff entered the witness-box and wanted to depose on oath that he had no account books. The Court would not allow him to do this because, in its view, he had not complied with the provisions of the Code of Civil Procedure and had not filed an affidavit as the Code requires. The order was then signed. Later in the day, after the order had been signed (the time of the signing of the order is given as 12-12 P.M) the plaintiff's counsel made two applications asking that the order be set aside. The main grounds given were, first that the plaintiff's counsel had informed the defendant's counsel that the plaintiff had no account books as he never maintained any. This according to the plaintiff's counsel occurred in January 1945. Another ground given was that the plaintiff's pleader was under the impression that as the plaintiff was entering the witness-box he would state on oath that he had no account books and consequently was unable to give discovery. The application also states that when objection was taken to the want of an affidavit the plaintiff stated that he would be prepared to make an affidavit within half an hour. But the Court did not grant this and dismissed the suit under O. 11, R. 21 of the CPC.

    3. The Court entertained this application on the same day and set aside its order on 26-6-1945. The question I have to decide in revision is whether it had jurisdiction to do so and whether it was otherwise proper for it to make such an order.

    4. On the question of jurisdiction I am clear that the Court had no jurisdiction. Order 43, R. 1 of the CPC, provides an appeal from an order dismissing a suit for want of prosecution under O. 11, R. 21 of the Code. Order 47, R. 1, provides for a review. Therefore two distinct remedies are provided in the Code, against an order made in the circumstances like the present. That being the case, it is not possible to attract the provisions of S. 151 and invoke the inherent jurisdiction of the Court. This was stated in emphatic terms by me in a Division Bench case, (which in any event binds me), reported in I.L.R (1940) Nag. 5381, at p. 548. I stated there, (the Honourable the Chief Justice concurred):

    “…what we desire most emphatically to emphasise is that not only must the power so conferred be sparingly used but that Courts have no power whatever to resort to S. 151, when the matter is expressly dealt with in the Code, and that if they do so they act without jurisdiction and their orders are revisable.”

    5. Much the same principle is laid down by their Lordships of the Privy Council in 57 ALL. 2422 at p. 250, a case under the Limitation Act. The proposition contended for before their Lordships was that in a case of hardship the Courts had some judicial discretion to relieve a party from the operation of the Limitation Act, but the argument would of course apply to any Act. Their Lordships stated:

    “It is enough to say that there is no authority to support the proposition contended for. In their Lordships' opinion it is impossible to hold that, in a matter which is governed by the Act, an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act, a general discretion to dispense with its provisions.”

    6. Other High Courts have taken a similar view and I need only refer to 44 Cal. 929,3 3 Rang. 63,4 A.I.R 1927 Cal. 158,5 A.I.R 1939 ALL. 497 and A.I.R 1931 Mad. 7917.

    7. I was, however, referred to two decisions of this Court, 31 N.L.R 538 and civil Revn. No. 34 of 19459 where a reference under the inherent jurisdiction of the Court was permitted even though an appeal was provided under the Code. Those cases are, however, distinguishable on other grounds. If there is one principle more fundamental than any other underlying the whole system of the jurisprudence which we administer, it is this. No party is to suffer for a mistake of the Court when that party is not in any way to blame. That principle overrides even the principles to which I have referred to above. In civil Revn. No. 34 of 1945 it seems that the Court had informed the pleader that it would deal with the application for review presented by him after it had decided another matter. It completely forgot its promise it had made to the pleader and dismissed the application in default. That of course, would at once attract the provisions of Section 151 of the CPC. The party was in no way at fault. He made an application and had a right to have it decided, Instead of hearing it, as the Court was bound to do, the Court through a mistake of its own, forgot that it had postponed the hearing and proceeded to dismiss the application in default. That is not a case like the present; here there is no fault of the Court and the plaintiff was at fault in that he had not complied with the provisions of the Code of Civil Procedure. 31 N.L.R 53 was a similar case. Pollock, J. remarked there that inherent powers can be invoked:

    “… to correct errors that have led to injustice through no fault of a party.”

    8. The underlining (here italicised) is mine. I stress “through no fault of a party.” Of course if the plaintiff had not been at fault the order we find here would be proper.

    9. As regards the other cases cited, I have not seen A.I.R 1932 Bom. 27110 but 9 Cal. 92311 is a case in which no decision was given. The learned Judge struck out the defence under Section 136 of the old CPC and at the same time mentioned that the appellant might come in and make an application to set aside the order on showing good grounds. He did not however, decide what would happen when the application was made. He could not have granted the application without hearing the other side and consequently he could not in advance have decided the matter without affording an opportunity for argument to the other side, as the law requires. Consequently that is not a decision on this point.

    10. 58 Mad. 8412 is another case of the type which falls under the general exception to which I have just referred. That was a case in which the Court passed orders under a mistaken belief that both parties had been fully heard whereas in fact it turned out that was not the case. Neither side was at fault there and the orders were passed owing to misapprehension.

    11. The lower Court relies on 29 N.L.R 176,13 but the learned Judge has omitted to notice the important qualification contained in the sentence:

    “…… though it has no such jurisdiction in respect of a suit dismissed for default.”

    12. What Macnair, J. held in that case was that a Court has inherent powers to review or modify its orders in respect of a matter while it is still seized of the case and retains jurisdiction. Once, however, the case has been dismissed then the jurisdiction of the Judge ceases and it cannot retake seisin except in the modes provided by the Code.

    13. It was then argued that if that be the case then at least the plaintiff had a right of review under O. 47, R. 1, and since an application was made which in substance amounted to an application for review, lower Court's order should be treated as having been made under O. 47, R. 1. I quite agree that the mere labelling of an application would not in most cases operate to a party's disadvantage provided the other side is not prejudiced and I would have been prepared to treat this as an application for review and treat the order as one of review had the matter fallen within the terms of O. 47, R. 1. But it has to be remembered that a Court's powers of review are extremely limited, and unless the matter can fall directly within the provisions of O. 47, R. 1 it has no power to review its decision, still less can it resort to its inherent jurisdiction.

    14. The ground of the decision under O. 11, R. 21 was that the plaintiff had been negligent and that though the law requires the filing of an affidavit he had made none. There was no mistake or error in respect of that and consequently whether right or wrong the matter was final and the learned Judge had no power to review it. The ground of review given was that the plaintiff's counsel had informed the defendant's counsel that the plaintiff had no account books. That, however, is not what the Code requires. That argument was considered in the previous order and rejected. A deliberate decision was thus reached and having been reached, it could not be reviewed.

    15. It was argued that in point of fact there was an error because the Code does not require an affidavit in cases where there are no books. The affidavit is only required where, the party is in possession and control of the documents of which discovery is sought. Even if that had been so it would have not afforded a ground foil, review, because it would at most have amounted to an error of law, and an error of law is not a ground on which a Court can review its decision. But in point of fact the argument itself is incorrect. Order 11, R. 13 requires an affidavit and Appendix C No. 5 shows that the affidavit must disclose that the party has no document if in fact he has none. Clause (5) of the Form runs:

    “According to the best of my knowledge, information and belief I have not now and never had, in my possession, custody or power, etc. …, any account, book of account, etc. … whatsoever, relating to the matters in question in this suit or any of them …… other than and except the documents set forth in the said Schs. 1 and 2 hereto.”

    16. ‘Schedules 1 and 2 referred to above require the party to set out such documents as he has in his possession or power relating to the matters in question in the suit. It is clear, therefore, that there was failure to comply with the provisions of the Code and that, therefore, the order of 9-4-1945 was legally correct, though, of course, the Court could in the exercise of its discretion have granted further time if it had thought fit. That question, however, was also considered and it refused to grant time because it held that the plaintiff had been very negligent. Having reached those deliberate decisions it could not in review alter its mind and change its order. Eight or wrong its decision is final. The application is allowed. The order of the lower Court is set aside, and its previous order dismissing the suit for want of prosecution under O. 11, R. 21 is restored.

    17. Coats of this application will be paid by the plaintiff non-applicant. Counsel's fee Rs. 40.

    18. Application allowed.

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    Comments

    Krishnakumar v. Jawand Singh
    (Aug 5, 1946)