Part-V
As the discussion in the previous part demonstrated, the inherent powers of civil courts have a wide and significant practical role in ensuring that the administration of justice is not frustrated by procedural limitations. However, in attempting to cover the various situations in which these powers may be invoked, some important and practically recurring instances escaped attention in the previous part.
This fifth part of the series seeks to address those remaining areas, with particular emphasis on situations that arise frequently in the day-to-day functioning of civil courts
Application to Set aside ex-parte Decree under O.9 R 13 and Application to restore suit dismissed for default under O.9 R.9- Dismissed for Default
It is a normal thing in civil courts that civil suits get dismissed for default under Order 9 Rule 8 of Civil Procedure Code (CPC) when the plaintiff doesn’t appear when the suit is called on for hearing. Once the suit gets dismissed for default the remedy plaintiff has is to file a restoration application of the suit for setting aside dismissal under Order 9 Rule 9, showing sufficient cause for his previous non-appearance when the suit was called on for hearing. Apart from this he can also file an appeal under Section 104 read with Order 43 Rule 1(c) of CPC. On certain occasions an interesting situation arises if this restoration application also gets dismissed for default meaning that applicant/plaintiff remained absent when the application under O. 9 R. 9 was called on for hearing, then what is the remedy available with the applicant petitioner/plaintiff.
In Salar Beg v. Kotayya, AIR 1926 Mad 654, the question directly arose before the Madras High Court as to where an application under Order 9 Rule 9 CPC was itself dismissed for default, whether another application to restore the first application dismissed for default was competent. The Judges held that such a second application was competent but not under Order 9 Rule 9.
Whether Appeal is maintainable from restoration application dismissed for default
Section 104 of CPC enumerates the orders from which the appeal lies. Order 43 provides for “appeals from order”. Order 43 Rule 1 (c) & (d) which are relevant for the present case are quoted as below:-
“1. Appeal from orders.- An appeal shall lie from following orders under the provisions of Section 104, namely:-
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
In Mohd. Farkhuida Ali v. Khamrunnissa, (1963) I Andh WR 114, it was held that no appeal was provided for from an order in a second application that is, an order dismissing an application which was for restoration of an application for setting aside the dismissal of a suit or an ex parte decree. To a similar effect is the decision in Gaja v. Mohd. Faruk, AIR 1961 All 561, wherein it was held that Order 13 did not provide for an appeal from an order dismissing for default an application for restoration of an application under Order 9 Rule 9 and Order 9, Rule 13, CPC.
In Brijmohan vs. Raghoba, 28 N. L. R. 83, it has been held by a Division Bench of the Nagpur Judicial Commissioner’s Court that no appeal lies from an order rejecting an application to set aside the dismissal for default of an application for restoration of a suit dismissed in default, and that the dismissal of such an application can be set aside under section 151. The learned Judges based this conclusion on the reasoning that Section 104(1) and O. 43 R. 1 CPC did not provide for an appeal against an order of dismissal for default of an application for restoration of a suit under O. 9 R. 9; that the right of appeal being a substantive right could not be inferred by the application of Section 141 which only made the procedure in the Code applicable, in so far as it could be, in all proceedings in any court of civil jurisdiction and did not give any substantive right; and that, therefore, an order of dismissal for default of an application for restoration of a suit under O. 9 R. 9 was not applicable under O. 43 R. 1(c). On the same reasoning the learned Judges treating the remedy under O. 9 R. 9 as a substantive one held that it was not available by resorting to Section 141 CPC., for setting aside the dismissal in default of an application for restoration of a suit under O. 9 R. 9. This decision was followed by a Single Judge of the Nagpur High Court in Prem Shankar vs. Rampyarelal, ILR 1944 Nag. 558.
In Komalchand Beniprasad vs Pooranchand Moolchand, AIR 1970 MP 199, it was held that the remedy under O. 9 R. 9 CPC is not a matter of procedure. The rule gives a substantive right of applying for restoration of a suit dismissed for default and this right cannot be conferred by Section 141 when it is made applicable to proceedings initiated on an application for setting aside the dismissal in default of an application for restoration of a suit under O. 9 R. 9 CPC. Section 141 deals only with procedure and not with any substantive right. It does no more than provide the procedure to be adopted by Courts of Civil jurisdiction is dealing with matters a before them. It does not provide that the Code is to be applied in its entirety to such proceedings so as to confer the right of appeal or any other substantive right in those proceedings. O. 9 R. 9 cannot, therefore, be invoked for setting aside the dismissal in default of an application for restoration of a suit under that rule. On the same principle an order dismissing in default an application for restoration of a suit under: O. 9 R. 9 is not open to appeal under O. 43 R. 1 (c).
Use of Inherent Powers
In Chandrika Singh v. Parsidh Narayan Singh, also it was held that an application to restore an application which had been dismissed for default under Order 9 Rule 4, CPC was maintainable under Section 151 CPC. In Madan Lall v. T. M. Bank Ltd. AIR 1954 Assam 1
, a Full Bench of the Assam High Court held that, where an application under Order 9, Rule 13, CPC, had itself been dismissed for default, then in so far as the Court dismissing the application for default is concerned, there may be remedy available by application under 151 CPC. In Poorna Chand v. Komalchand, , the Madhya Pradesh High Court held that the dismissal for default of an application for restoration of a suit under Order 9 Rule 9 CPC can be set aside in exercise of the Inherent powers of the Court under Section 151 CPC. They also held that the power of the Court to set aside was not fettered by any rule of limitation. Bobde J. in Goverdhan vs. Hemrajsingh and others ILR 1944 Nag. 408, where the question was as to under what provision of the CPC an application for restoration of the suit dismissed in default lie. The said suit had been stayed by an order passed u/s 10 of the Civil Procedure Code. Bobde J. opined that Order 9 was inapplicable and that the Court could restore the suit in exercise of its inherent powers.
Other View
In Nathu Prasad vs Singhai Kapurchand, AIR 1976 MP 136 the full bench of MP High Court held that an application under Order 9 Rule 9 CPC is a proceeding in a Court of Civil jurisdiction. So the procedure provided in regard to suits can be made applicable to a proceeding under Order 9 Rule 9. There is no justification to read any such restrictive words in Section 141. The section is in general terms and the expression “as far as it can be made applicable” provides for the extent to which the section can be applied to a civil proceeding other than a suit. The expression “all proceedings” is of a very wide connotation and to restrict it to a proceeding, which is original in nature and wholly independent of a suit will be doing violence to the language of the section. The object and purpose of Section 141 is that for economy of words, it was unnecessary to repeat the whole of the procedure in providing for procedure for an application or any other proceeding original or ancillary.
When a suit, which is dismissed for non-appearance of the plaintiff can be restored on satisfying the Court that the plaintiff was prevented by some sufficient cause from appearing before the Court, there is no reason why, when an application under Order 9 Rule 9, is likewise dismissed for non-appearance of the applicant, the latter should be denied an opportunity to satisfy the Court that he was prevented by reason of sufficient cause from appearing before the Court when this application was called on for hearing.
In Ravukumara Raj Appa Row vs Veera Raghava Raya Choudary, AIR 1966 AP 268 it was held that, if there were no provision like Order 9 Rule 9, CPC, the plaintiff would suffer irreparable loss by dismissal of his suit even if he had sufficient cause for his non-appearance, such as contemplated in Order 9 Rule 9 CPC. If there were no provision in law for a second application being made by a plaintiff regarding dismissal of an order under Order 9 Rule 9, CPC even if he had sufficient cause for non-appearance when his petition under Order 9 Rule 9 CPC was called, he would suffer irreparable loss in spite of the fact that provision under Order 9 Rule 9 CPC existed and the loss to him would be the same as if Order 9 Rule 9 CPC had not existed and as if he had not made any (first) application under Order 9 Rule 9 CPC at all, so, it would appear reasonable to infer that the Legislature, which passed the Act V of 1908, intended that such loss should not result to a litigant who, for sufficient cause, could not appear when his application under Order 9 Rule 9 CPC was called and against whom the Court had decided.
Dismissal for Default amounts to Rejecting the application
Full Bench of Madhya Pradesh High Court in Nathu Prasad case had occasion to consider the words “rejecting an application” as contained in Order 43 Rule 1(c) CPC. After considering the earlier judgments of the different High Courts the Full Bench opined as follows:-
“…….In our opinion, there is nothing in the wording of Order 43 Rule 1 (c), CPC to restrict it to rejection on merits. The words “rejecting an application” are comprehensive enough to include dismissal for default on rejection, in any other situation whatever.”
Supreme Court in Civil Appeal No.9409 of 2017 , while affirming the view of full bench of MP High Court in Nathu Prasad vs Singhai Kapurchand, AIR 1976 MP 136, held that when application under Order 9 Rule 9 CPC for restoration of suit is rejected, the second application for restoration of the original application falls under the purview of the Order 9 Rule 9 CPC read with Section 141, and rejection of the application does fall under Order 43 Rule 1(c) CPC. When the second application falls under Order 9 Rule 9 C.P.C., hence the right of appeal shall also accrue when such application is rejected.
Limitation period to file the second application for restoration
An application for restoration could be filed under Order 9 and the limitation for restoration is 30 days from the date of dismissal as per Article 122 of Limitation Act. But what is the period of limitation for an application for restoration of an application filed under Order 9 Rule 9 which had been dismissed for default?
In Brijmohan v. Raghoba, (AIR 1932 Nag 101), the Court of the Judicial Commissioner had held that to such an application the provisions of Rule 9 of Order 9 of the Code of Civil Procedure were not applicable and that such an application could be entertained under the inherent powers of the Court under Section 151 of the Code of Civil Procedure. This view was followed by Robde, J. in Premshankar v. Rampyarelal, (AIR 1944 Nag 317) The application, being under the inherent powers under Section 151 of the Code of Civil Procedure, was not governed by Articles of the Limitation Act, though the party invoking the jurisdiction of the Court under Section 151 of the Code must be diligent and not guilty of laches.
In Komalchand Beniprasad vs Pooranchand Moolchand it was stated that since the dismissal of such an application for default was in the exercise of the inherent powers of the Court. That being so, the dismissal can be set aside by the exercise of the same inherent powers. When the dismissal in default of an application for the restoration of a suit under O. 9, R.9 CPC can be set aside by resort to Section 151 CPC, then there is no question of any limitation for an application made to invoke the inherent powers of the Court. Section 151 does not deal with any applications nor does it lay down procedure for any application. It is a provision recognising the inherent power of the Court to act ex debito justitiae. An application invoking this power is not one which a party is required to make under any provisions of the Code for setting in motion any machinery of the Court. Therefore it is not governed by Articles of the Limitation Act.
As has been held by the Supreme Court in Sha Mulchand and Co. Ltd. (In Liquidation) vs Jawahar Mills Ltd., Article 137 governs only the applications under the CPC and has to be read as if the words ”under the Code” were added in the first column of the Article. It follows therefore that the application contemplated by Article 137 is one which party has to make for the machinery of the Court to be set in motion under the provisions of the Code and the application has to be made within three years from the date when the right to apply accrues.
As an application made to invoke the inherent powers of the Court under Section 151 is not an application under the Code which a party is required to make, Article 137 has no applicability. That apart, reading Articles 122 and 123 together it is clear that Article 122 prescribes limitation for an application to set aside the dismissal for default of a suit and not for an application to set aside the dismissal for default of an application for restoration of a suit under O. 9, R. 9 CPC. Though there is no limitation for invoking the inherent powers of the court u/s 151, the party invoking that jurisdiction must be diligent and not guilty of latches.
One important instance where the power of Section 151 CPC must not be used that missed my attention during the writing of earlier parts is produced here:
Limitations on Challenging Compromise Decrees under Section 151 CPC: Insights from Laraiti Devi v. Sia Ram
Introduction
The case of Laraiti Devi v. Sia Ram, adjudicated by the Allahabad High Court on March 22, 1957, addresses critical issues surrounding the enforceability and annulment of compromise decrees under the Code of Civil Procedure (CPC). At its core, the case examines whether a decree based on a compromise can be set aside by invoking inherent powers under Section 151 CPC, especially in scenarios alleging fraud or misrepresentation.
Summary of the Judgment
The plaintiff, Laraiti Devi, filed a suit against defendant Sia Ram for the recovery of Rs. 8,497. Before the final hearing, both parties entered into a compromise, which was duly verified and decreed by the court. Subsequently, the defendant sought to set aside the decree under Section 151 CPC, alleging fraud and misrepresentation in procuring the compromise. The Civil Judge quashed the decree, asserting non-compliance with Order 23, Rule 3 of the CPC. On appeal, the Allahabad High Court overturned this decision, reinstating the decree and holding that Section 151 CPC could not be invoked in this context when alternative remedies existed.
Legal Reasoning
The court’s legal reasoning pivots on the interpretation of Section 151 CPC and Order 23, Rule 3 thereof. It establishes that:
- Section 151 CPC, which empowers courts to pass any order necessary to do complete justice, is not intended to be a remedy for parties to challenge compromise decrees when alternative legal avenues exist.
- The defendant’s attempt to annul the compromise decree via Section 151 CPC was improper since he had not exhausted the regular judicial remedies available for challenging the compromise on grounds of fraud or misrepresentation.
- The court differentiated between fraud upon a party and fraud upon the court, holding that innate jurisdiction cannot be misused to revisit consensual compromises when the latter are evidently invalidated through proper legal channels.
Furthermore, the court emphasized that the compromise was adequately recorded within the decree itself, satisfying the requirements of Order 23, Rule 3 CPC. The absence of a specific recital to record the compromise did not render the decree void or ineffectual.
Impact
This judgment reinforces the principle that inherent judicial powers under Section 151 CPC are not a catch-all remedy for parties dissatisfied with compromise decrees. It delineates clear boundaries, ensuring that such inherent powers are not exploited to circumvent established legal procedures. Consequently, litigants are compelled to pursue regular judicial remedies, such as filing a suit to annul a decree on grounds of fraud, rather than relying on the court’s inherent authority to intervene.
Conclusion
The Allahabad High Court’s decision in Laraiti Devi v. Sia Ram underscores the judiciary’s commitment to maintaining procedural integrity and upholding the sanctity of compromise decrees. By restricting the use of inherent powers under Section 151 CPC for challenging such decrees, the court ensures that litigants adhere to prescribed legal avenues, thereby promoting judicial efficiency and fairness. This judgment serves as a pivotal reference for future cases involving compromise annulments, delineating the appropriate contexts and methods for seeking judicial intervention.
Rest to follow in the final part