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B K Metal Industries v/s Punjab National Bank

    Appeal No. ---------

    Decided On, 28 March 2008

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE MANIK MOHAN SARKAR

    For the Appearing Parties: Amitava Pain, Advocate.



Judgment Text

(1). THE present application under Section 115 of the Code of Civil Procedure has been directed against Order No. 21 dated 01. 02. 1994 passed by the learned subordinate Judge (Now, Civil Judge, Senior Division), 2nd Court at Howrah in T. S. No. 151 of 1991.


(2). BRIEFLY, the petitioners' case is that the opposite party filed Title suit being No. 151 of 1991 for a decree of recovery of an amount of Rs. 70,905. 44 paisa against both the defendant Nos. 1 and 2 in the suit, jointly and severally, and also for interest from 1st October, 1991 till realisation and for a declaration that the goods and machinery described in the schedule of the plaint of the suit is under hypothecation to the plaintiff Bank, it having first and paramount charge over the same for its claim and for other reliefs. Defendant no. 1 in the suit was the sole proprietorship firm while defendant No. 2 therein was its sole proprietor. The defendant obtained a cash credit limit facility of rs. 40,000/ -. As the defendants stopped submitting stock statement regularly, sale proceeds were not deposited causing irregularity in the said action and the dealing with the said account by the defendants which was detrimental to the interest of the plaintiff and a sum of Rs. 70,905. 44 paisa became due from the defendant.


(3). ON entering appearance in the suit, the defendants therein and petitioner here, could not file written statement due to non-supply of certain documents relevant for the purpose of adjudication there and so, the present petitioner filed an application under Order 11 Rule 12 of the Code of Civil procedure, in the suit praying for a direction upon the plaintiff to discover on oath, the documents to be relied upon at the time of peremptory hearing of the suit and subsequently, this application was allowed on contest by directing the plaintiff to discover those documents in its possession, on oath. Since the plaintiff did not comply with the said Court's order even after that direction, the petitioner/defendants filed another application under Order 11 Rule 21 of the code for dismissal of the suit and subsequently, upon hearing, the learned trial Court dismissed the suit on 12. 01. 1993 thereupon. Plaintiffs (opposite parties here) filed an application under Section 151 of the Code of Civil procedure on 23. 02. 1993 for recalling the said order being No. 11 dated 12. 01. 1993. The petitioner filed objection against the said application and on 1. 1. 1994 and after hearing the parties, the learned trial Court allowed the said application under Section 151 without assigning any reason though the application was filed beyond the period of limitation and no application for condonation of delay was filed and the suit was restored. Petitioners claimed that the inherent power cannot be exercised when the plaintiffs/opposite parties had remedy under Order 43 Rule 1 of the Code, it cannot be said to be illusory.


(4). PETITIONERS became aggrieved over the said order under Section 151 and restoring the suit by setting aside the order of dismissal and claimed that the learned trial Court acted with material irregularity in allowing such application and exceeded the jurisdiction vested in him by law by way of over-stepping the powers conferred upon him and it was a non-application of mind on the part of the learned Trial Judge and the petitioner has prayed for setting aside the said order.


(5). EVEN after service, none appeared for the respondent Bank.


(6). MR. Amitava Pain, learned Counsel for the petitioner submitted that by referring to the provision of Order 43 Rule l (f)of the Code of Civil Procedure, that there is a specific provision for appeal against the order passed under order 11 Rule 21 of the Code. It is further submitted that though the learned trial Court at first passed an order for dismissal of the suit for want of prosecution on the basis of an application filed under Order 11 Rule 21 by the present petitioner as defendant in the suit. By referring to Order No. 21 dated 1. 2. 1994 in the suit concerned, Mr. Pain submitted that the present opposite party/ plaintiff's application under Section 151 of the. Code of Civil Procedure dated 10. 2. 19. 93 for setting aside the order of dismissal, the learned trial Court, after hearing both the parties, ultimately allowed the said application and set aside the order of dismissal passed under Order 11 Rule 21 of the Code. It is, further submitted by Mr. Pain that in doing so, the learned trial Court has exceeded its jurisdiction by ignoring the specific provision under Order 43 Rule l (f) of the code and stated that when there is a specific provision of appeal against the said order passed under Order 11 Rule 21, provision under Section 151 of the code cannot be treated as an alternative remedy as the intention of legislature to make a specific provision of appeal has been frustrated by the order passed under Section 151 of the Code by the learned trial Court.


(7). BEFORE entering into the discussion as per claim of the petitioner, the provision of Section 151 of the Code of Civil Procedure is needed to be assailed. It says " Nothing in this Code shall be deemed to limit or otherwise effect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court".


(8). IT is beyond any doubt that the provision of Section 151 of the code gives a wide range of jurisdiction to the Civil Court to pass order in its inherent jurisdiction and such power is not exhaustive but it is spread over a wide range to cover in manifold directions. Orders under Section 151 are mostly passed for the ends of justice and also in course of administration of justice. Normally, an inherent power of a Court is treated in the style of in addition to or complementary to the power expressly conferred under the Code. Normally, an inherent power under Section 151 is exercised mainly in the circumstances when there is no specific provision in the Code for grant of any relief to an appellant who is legally entitled to the same and in most of the cases it has already been stated, the Court passes such order under its inherent power when the Court feels that such an order is needed to be passed for the ends of justice or for proper administration of justice. The real test of exercising such an inherent power lies with the age-old and well-established principle that civil Court has such power to act ex debito justitiae to do so that oral and substantial justice is done by passing an order under its inherent power as provided under Section 151 of the Code. But the caution notice is also there in course of exercise of such an inherent power that the Court should exercise such a power sparingly, carefully and with caution and it should not be exercised capriciously and arbitrarily.


(9). IN the present case, the learned Counsel for the petitioner has specifically submitted that when there is a specific provision of preferring appeal against an order passed under Order 11 Rule 21 of the Code, as provided under Order 43 Rule l (f), the real test in the present matter laid to assess as to whether the learned trial Court has acted capriciously or arbitrarily and beyond any jurisdiction vested upon him under inherent power, to set aside the dismissal order of the suit passed by the Court itself and restore the suit in its original file.


(10). EVEN though, in the present context, there is little scope to go into the merit of the said Order No. 21 dated 1. 2. 1994 of the learned trial Court passed under Section 151 of the Code of Civil Procedure, the intention of the learned trial Court was to extend some justice to the opposite party/plaintiff as he felt that the suit concerned had involvement of huge amount of public money which was going to be squandered away by the defendant/petitioner who had taken an advance from the opposite party/plaintiffs man. But however is the intention of the learned trial Court may be to give a relief to the opposite party/ plaintiff by exercising inherent power, the said act of the learned trial Court cannot be persuaded since the learned trial Court was well aware of the provision of appeal against the said order as it is reflected in the order passed by the learned trial Court. The learned lawyer representing the present petitioner as defendant before him had made a specific objection against the said application under Section 151 of the Code of Civil Procedure by stating that the said Court had no jurisdiction to entertain the said application even and to allow the prayer for recalling of the order of dismissal by stating that the said order was an appealable order. The learned trial Court totally ignored the provision of the Code when it is observed that the said court was in no hesitation to hold that it had also the jurisdiction to exercise the inherent power, in such circumstances, even when the order under consideration for setting aside, has a specific provision of appeal in the Code itself.


(11). SECTION 104 (1) (i) is specific when it states that an appeal shall lie from any order made under Rules from which an appeal expressly allowed by the Rules. Drawing reference to the same, the provision of Order 43 Rule 1 (f)provides that an appeal shall lie from an order under Rule 21 of Order 11.


(12). WHEN there is such specific provision of appeal against order passed under the provision of Rule 21 of Order 11, in my view, the wide-ranged inherent power under Section 151 of the Code is restricted to be used since Section 151 does not confer any inherent power upon a Court to be invoked when there is a specific remedy by way of appeal being not illusory is available.


(13). THOUGH the power of the Court under inherent jurisdiction as provided under Section 151 of the Code of Civil Procedure is for a noble purpose for giving relief to an aggrieved party by passing order as may be necessary for the ends of justice or to prevent abuse of the process of the Court and though the Section itself has started with the wordings "nothing in this Code shall be deemed to limit or otherwise effect. . . . . . . . . . . . . . . " on the face of provision of appeal from an order passed under Order 11 Rule 21 of the Code as provided in Order 43 Rule 1 (f), such a remedy under section 151 of the Code cannot be treated as an alternative remedy for setting aside such order. Intention of the legislature was clear that when the suit has been dismissed for want of prosecution from the side of the non-complying plaintiff under Order i 1 Rule 21, the provision of passing order necessary for the ends of justice under inherent power as provided under Section 151 of the Code of Civil Procedure, cannot be treated as an alternative remedy and the order of the learned trial court passed under Section 151 of the Code of Civil Procedure under a sentimental approach to save money in the public exchequer, cannot be appreciated even though the learned trial Court was well aware that there was a provision of appeal against the order passed by the same Court earlier for dismissal of the suit for want of prosecution, on the application under Order 11 rule 21 of the Code of Civil Procedure by the defendant in the suit. The proper action on the part of the learned trial Court was to reject the said application under Section 151 of the Code of Civil Procedure and to advise the applicant therein to seek for proper relief as per provision of Order 43 Rule l (f ). When such a specific provision of appeal was there, the hands of the learned trial court was tied from interfering its own order of dismissal passed earlier under order 11 Rule 21 of the Code of Civil Procedure and thereby the plaintiff/ opposite parties would have sufficient opportunity to save the period of limitation in preferring such appeal.


(14). SINCE the learned trial Court ignored the specific provision of appeal against an order passed by it under Order 11 Rule 21 of the Code of Civil procedure and exercised his inherent jurisdiction, learned trial Court, practically, has ignored the extent of jurisdiction to which it was limited in the said specific provision of appeal. The inherent jurisdiction of the trial Court was almost curtailed in view of such provision of appeal and the remedy extended by him to the plaintiff/opposite parties in restoring the suit by setting aside its earlier order of dismissal of the suit for want of prosecution as per provision of Order 11 Rule 21 of the Code of Civil Procedure. It cannot be stated that the learned trial Court acted irregularly but it has acted beyond the provision of law and exercised such jurisdiction which was never given to it under the present context. It cannot be treated exceeding jurisdiction provided with the trial Court but it may be stated as illegal application of jurisdiction as provided under section 151 of the Code of Civil Procedure.


(15). IN this connection, reliance to the decision reported in AIR 1962 s. C. 527 (Monhar Lal Chopra v. Seth Hiralal) may be made where the Hon'ble apex Court held that. "the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intention of the legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the code but because it should be presumed that the procedure specifically provided by the legislature for years in certain circumstances is dictated by the interest of justice". It has further been held in the said decision that "inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Court deals expressly with a particular matter, the pro

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visions are normally be regarded as exhaustive". (16). FURTHER, reliance may be made in the decision reported in (1970)1 scc 732 in the case of (Nain Singh v. Koonwarjee) where the Hon'ble Court held that" Under the inherent power all Courts recognised by Section 151, code of Civil Procedure, a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the Rule that if the Code does contain specific provision which made the necessities of the case, such provisions should be followed and inherent * jurisdiction should not be involved. In other words, the Court cannot make use of the special provisions of Section 151 of the Code where the party and his remedy provided elsewhere in the Code and he included to avail himself of the same. Further, the power under Section 151 of the Code cannot be exercised as an appellate power". (17). HOWEVER, in summing up all the discussions made above and also following the decisions referred above, I am of the view that the learned trial court, has acted illegally in ordering restoration of the suit by setting aside the order of dismissal under Order 11 Rule 21, by exercising inherent jurisdiction of the learned trial Court which it was lacking. (18). SO, the present revisional application is allowed. (19). THE order No. 21 dated 1. 2. 1994 passed in Title Suit No. 151 of 1991 by the learned trial Court is hereby set aside. Under the prevailing circumstances, I do not pass any order as to costs.
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