Kulak Chandra Nama and others Vs Nripendra Mohan Sarkar and others

@JUDGMENTTAG-ORDER

R.S. Bindra, J.C.

1. To appreciate the point involved in this revision petition, filed by the defendants Kulak Chandra and 2 others, it is necessary to set out the relevant facts in detail. Nripendra Mohan, the respondent no. 1, filed Title Suit No. 25 of 1963 in the Court of Munsiff at Agartala on 17-4-1963 against the present petitioners and some others. The written statement was filed by the petitioners on 21-8-1964. The suit was dismissed in default of appearance by the plaintiff on 5-6-1965 under O. 9. R. 8, of the Civil Procedure Code. On 5-7-1965 the plaintiff moved an application under Order 9, Rule 9, read with Section 151, of the Code for restoration of the suit and it was registered as Misc. case No. 58 of 1965. This application for restoration was dismissed on 21-8-1965 on the basis that the plaintiff had failed to deposit the process fee for summoning the opposite party. To get that dismissal set aside, the plaintiff filed an application on 6-9-1965, which was registered as Misc. case No. 68 of 1965. The Munsiff set aside that dismissal by an order dated 14-3-1966 on the footing that the dismissal had been wrongly made inasmuch as the plaintiff had put In the necessary process fee on 26-7-1965 but the Court official had misplaced the same and had instead wrongly reported that it had not been paid. The present petition for revision is directed against this order of restoration.

2. It was contended by Shri A. Chakraborty, appearing for the petitioners, that the proper remedy for the plaintiff to adopt for reversal of the dismissal order dated 21-8-1965 was an appeal under clause (c) of R. 1 of O. 43 of the Code, and that the trial court had no jurisdiction to vacate the dismissal on the basis of an application made to it by the plaintiff. In support of the proposition that appeal lay against the order dated 21-8-1965, Shri Chakraborty cited the case of Doma Choudhary and Others Vs. Ram Naresh Lal and Others, , Shri Majumdar, representing the plaintiff-respondent urged, on the other hand, that the trial court had ample justification for vacating the order dated 21-8-1965 in exercise of its inherent powers u/s 151 of the Code to prevent abuse of the process of the court and for securing ends of justice. He also relied upon the principle that an act of the court or its officials shall not prejudice any party. He pointed out that the plaintiff had actually deposited the necessary court-fee on 26th of July, 1965, a fact not disputed on behalf of the petitioner, that by some inadvertence the court official concerned had misplaced the process bearing the court-fee that process was subsequently found out, and that it was for these reasons that the court had set aside Its order dated 21-8-1965 with a view to undo the wrong done to the plaintiff. Shri Majumdar did not challenge the proposition, canvassed by Shri Chakraborty, that clause (c) of R. 1 of O. 43 embraces rejection of an application made under O. 9, R. 9, irrespective of the fact whether that rejection is on merits or in default that proposition of law appears to be well settled. No authority to the contrary was cited before me.

3. It appears equally well settled that by virtue of inherent powers vesting in the courts they have the sanction of law to undo a wrong done to a party as a consequence of some fault on their own part or on the part of their officials. The principle actus curiae neminem gravabit (an act of the court shall prejudice no person) has been adopted in India. In the case of Ramdas Sah and Another Vs. Jagarnath Prasad and Others, , the Patna High Court restored an execution case dismissed through Inadvertence in contravention of the court''s order with the observation that it in the duty of the court to correct its own mistake and restore the case under its inherent powers. The facts of the case Debi Baksh v. Habib Shah, (1913) ILR 35 All 331 (PC) indicate the extent to which a court can go (while acting u/s 151 of the Code) with a view to do justice to a party who had suffered at its hands. The court of the Deputy Commissioner of Oudh dismissed a suit for default of appearance of the plaintiff who had actually died by the date of that order. An application for restoration of the suit was made under O. 9, R. 9 by the heir of the deceased plaintiff and the court restored the suit The defendant went In revision to the court of the Judicial Commissioner who reversed the order of restoration on the ground that the original dismissal had been rightly made. On appeal to the Privy Council, the order of the Judicial Commissioner was set aside with the remark that such abuse had occurred by the course adopted in the court of the Judicial Commissioner and the inference was that the provisions of section 151 "could never be invoked in a case clearer than the present". In our case, the order dismissing the application for restoration was made for no fault of the plaintiff. The court while making that order laboured under the wrong impression that the plaintiff had not filed the necessary process fee. It was, therefore, a clear case of miscarriage of justice and consequently the court was legally justified in vacating the dismissal order to secure the ends of justice and to prevent abuse of the process of the court.

4. The defendants have come to this court in revision under para 34 of Tripura (Courts) Order, 1950, which is almost identical with Section 115 of the Code except in one respect which is not material for the present case. It is settled beyond doubt that no party can claim power of revision as of right and that no interference in revision should normally be made where the impugned order appears to be just It is for the petitioner to prove that there has been an irregularity or an illegality on the part of the Court below which has occasioned failure of justice before interference in revision can be made. Shri Chakraborty was unable to satisfy me that in directing the restoration of the application dismissed in default on 21-8-1965 under the circumstances narrated above, the trial court had been unjust to the defendants. The dismissal had been made under the misconception that the plaintiff had not deposited the process fee. That misconception had been occasioned by the fact that the court official had misplaced the process bearing the court-fee. The plaintiff was obviously not at fault in any manner. Hence, it was only just and proper that injury occasioned to him by the order dated 21-8-1965 should be remedied. As such, I see no justification for interference in revision with the order dated 14-3-1966 restoring to the file the application made under O. 9 , R. 9.

5. In the case of Chander Bhan v. Lallu Singh, AIR 1947 All 343, it was held that where the trial court by an illegal order dismisses the plaintiffs suit and by another illegal order sets aside the first illegal order and thus restores the parties to their original position, the High Court will not set aside only the second order, in the exercise of its discretionary powers, as it would have the effect of restoring the first illegal order. The case of Devendra Nath v. Abdul Hamid AIR 1951 Ass 36, is an authority for the proposition that where the lower court by restoring the case merely rectified an error in order to do substantive justice in the case, interference on the part of the High Court in revision would neither be desirable nor proper. The facts of these two authorities bear a close parallel to the facts of the case in hand, and with respect I agree with the principles enunciated therein.

6. As a result, I hold that since, firstly, the trial court had ample authority and adequate justification for vacating the order dated 21-8-1965 in the exercise of its inherent powers, and since, secondly, by the impugned order justice has been done between the contending parties, no case for interference in revision is made out. Therefore, I reject the revision though I make no order as to costs. Advocate''s fee Rs. 32.