Serajul Haque and Others Vs Kashim Ali Khairati and Another

S.K. Ghose, J.@mdashThe Petitioners in this Rule are the Plaintiffs in an ejectment suit and the Rule is directed against an order setting aside an ex parte decree and directing that the suit should be re-heard. It appears that on 3rd May, 1934, the Plaintiffs were ready but the Defendants applied for time on the ground that some of their witnesses were ill and others were absent. This application was refused whereupon the Defendants did not appear though called to do so repeatedly. As the result the suit was decreed ex parte. Subsequently the Defendants Opposite Parties filed an application for restoration of the suit under Or. 9, r. 13 of the Code of Civil Procedure. Their plea was that they could not come ready on the date fixed because certain documents were lost and some witnesses were ill. The learned Munsif in his judgment, dated 8th September, 1934, found that the evidence adduced by the Petitioners was insufficient and unconvincing. That would have been a good reason for dismissing the application under Or. 9, r. 13. But the learned Munsif proceeded as follows: "But as the Petitioners want a fresh trial of the suit and as the subject-matter therein comprises their homestead, I think it expedient for ends of justice to allow them a further opportunity to substantiate their defence." Thereupon he ordered that the suit should be restored. It is quite clear from this that the application was heard as an application under Or. 9, r. 13, but the Court was not satisfied that the applicants were prevented by sufficient cause from appearing. That should have been the end of the matter. But apparently the learned Munsif proceeded to restore the suit by exercising his powers under sec. 151 of the Code of Civil Procedure. It is quite true that those inherent powers are not limited by the Code, but on the other hand where there is an express provision in the Code for dealing with a certain matter, it is not always the case that on failure of such provision the inherent powers of the Court should be invoked. It is for this reason that invoking of such powers has been discouraged from time to time, as for instance in the cases of Haridas Mukherjee v. Bejoy Krishna Das 34 C. W. N. 222 (1929) and K. B. Dutt v. Shamsuddin Shah Shaheb 34 C. W. N. 419 (1930). Those are cases of a somewhat similar type, the applicants having filed applications under Or. 9, r. 13 of the CPC and the Court restoring the suits on other grounds. It was held that the Court should not do that. I think that on the facts of the present case the Court was wrong in allowing the application for restoration of the suit. The Rule must, therefore, be made absolute. There will be no order as to costs.