1. This is an unfortunate case. It is unfortunate for the appellant as the plight in which he is placed is not due to his own fault, but due, to the carelessness of the lawyer whom he engaged to defend the suit filed against him, to the indifference of the lawyer who had agreed to look after the case -- in case he had been asked to do so and to the incapacity of the lawyer who took a defective vakalat from him and filed a defective miscellaneous petition to set aside the ex parte decree.
2. A Suit in O.S. 22 of 48-49 was filed against the appellant. He engaged Sri Seetharamiah as his counsel. A statement was filed and the case was posted for reply statement to 24th March 1949. A memo for particulars was filed and the case was posted for particulars being furnished on 17th May 1949. Sri T. Seetharamiah had gone away on a tour in Northern India and according to his evidence he had asked Sri Sundara Rao to attend to his cases. Sri Sundara Rao did not appear for appellant on 17th May 1949, but some other advocate appeared and took an adjournment till 25th May 1949. Nobody appeared for the defendant in that case on that day and the suit was decreed ex parte. It may be noticed here that the office had put up a note that some of the items of suit claim were barred and it had been noted in the order sheet that this matter was reserved for consideration at a later stage. This was not considered, however, at the time the case was finally disposed of.
3. As pointed out by the learned Subordinate Judge:
"The Court fixed 17th May 1949 as the date on which the defendant should furnish these particulars. It is clear from the note on the order sheet dated 24th March 1949 that Sri Seetharamiah appeared in the Court and also filed the counter-affidavit. No doubt Sri Seetharamiah in his evidence before the Court, has stated that he is not sure of his having appeared before the Court. But the note made on the counter-affidavit shows that it is Sri Seetharamiah who presented it in person and the note made in the order sheet of 24th March 1949 is also to the effect that he filed it. So it is rather difficult to believe that Sri T. Seetharamiah was not aware of the order passed by the Court on 24th March 1949 directing the petitioner-defendant to file the particulars by 17th March 1949. It was the duty of Sri Seetharamiah to have informed the petitioner-defendant that the Court had ordered the petitioner-defendant to file the particulars and that he should file the same by 17th May 1949. No doubt according to Sri Seetharamiah he was very busy preparing for his tour in Northern India, and that he did not write to the petitioner. I do not know whether it was correct on his part in having omitted to inform the petitioner about his.... According to Sri Seetharamiah he had informed Sri S.G. Sundara Rao to look after his cases. But Sri S.G. Sundera Rao is positive that no particular instructions had been given to him to do any particular thing in any particular case of Sri Seetharamiah. Sri Seetharamiah had given only a general and vague instruction to look after his work."
4. A lawyer is certainly entitled to have a tour in North India, like any one else and a busy lawyer is possibly in need of one at least sometime. This does not mean he can do so at the cost of those who pay him for looking after their work. It does not appear from the evidence of Sri Seetharamiah that he told Sri Sundera Rao what he had to do in each case or that he entrusted the files of all the cases to him. Apart from his failure to make proper arrangements, there is a certain amount of inexcusable carelessness and indifference in what he did before he left for his tour. If he had only been attending to his cases as a lawyer is expected to attend, he would have noticed that the case was posted for particulars. His client was living in Trichinopoly and could not be expected to be in close touch with what was going on, except by a communication from his lawyer. Sri Seetharamiah was careless in not noticing that the case was posted for particulars in case he did not notice it. His diary and his office cover of this case showing what note he had made on 24th March 1949 are not produced and it is likely that he knew that the case was posted for particulars and he failed in his duty in not writing to his client to come and furnish the particulars called for by Court. It is likely that, as his mind was full of the intended tour, he failed to his client that the case was posted for particulars. His intention of going to Northern India should have made him very careful. Such negligence and indifference as he has shown in this case makes a lawyer unfit to be entrusted with the fate of litigants and if we do not intend to take any more notice of this conduct, it is because we hope that this is not the usual way, the gentleman is looking after the work of his clients and that the unfortunate negligence was due to his being busy preparing to go on a North India Tour.
5. If the advocate whom he had asked to look after his work had been entrusted with the records of this case, his failure to attend to appear on 25th April 1949 is responsible for the ex parte decree being passed. The suit was for recovery of certain items of money which the plaintiff as Manager of an estate of an absentee landlord spend for the estate. In the very nature of things the defendant could not be expected to know what was spent by the plaintiff. He had denied that plaintiff was Manager and had put the plaintiff to the proof of each of the hand loans alleged to have been advanced for the upkeep of the estate. The defendant's presence was not necessary and if only his advocate had appeared and brought the matter to the notice of the Court there could have been no ex parte decree. It must however be stated that it is in evidence that Sri T. Seetharamiah had entrusted Sri Sundar Rao with some statements to be filed in some cases and there is nothing to show that Sri Sundar Rao had been entrusted with the records of all the case of Sri Seetharamiah, including the one under consideration.
6. The next phase of the case is the application to set aside the ex parte decree. Sri Ananta Subba Rao, younger brother of Sri T. Seetharamiah, wrote to the defendant to sign the vakalath sent by him in order that he might apply to get the ex parte decree set aside. He, however, sent a wrong vakalath form bearing the name of his brother Sri Krishnappa and his father Sri Ramachar. Defendant, a resident of Trichinopoly is evidently illiterate in Kanarese language in which the vakalath was printed. He signed it before a First Class Magistrate at Trichinopoly who affixed his signature to it. Evidently the Magistrate knew that the vakalath contains the necessary certificate and he had merely to sign in the place marked. After it was received Sri Anatasubba Rao had merely to strike out only the words indicating acceptance of the vakalath as these words were also above the Magistrate's signature. He committed the mistake of striking out also the certificate printed in the form to indicate that the person before whom the vakalath was signed knew the person. This is clear from the fact that the ink in which it has been struck off is the one in which the advocate has affixed his signature. In fact his initials have been put in, to indicate that it is he who struck off the certificate. Then again he should have known that a petition had to be signed and verified by the petitioner. He drafted a petition for setting aside the ex parte decree, signed it and filed it along with an affidavit which, it appears, it is usual to file along with petition to set aside an ex parte decree.
7. The defects in the petition and the Vakalath were made much of at the time of arguments in the lower Court and the result is that the lower Court has devoted the major portion of its order to show how Sri Ananthsubba Rao is not the person authorised under the vakalath to file the petition to set aside the ex parte decree and how the petition itself not duly signed and verified by the petitioner is not maintainable.
8. The pleader Sri Ananthasubba Rao is evidently an inexperienced junior and the defects do not deserve therefore any further notice. We do not think that such defects should result in justice being refused to the parties for the fault of their lawyer. As regards the vakalath it must be remembered that Sri T. Ananthasubba Rao sent it to the defendant-appellant as sworn to by him and a letter had been written by him. The defendant-appellant signed it in order to authorise by it Sri Ananthasubba Rao, who had sent the vakalath form to him for that purpose. The First Class Magistrate before whom he affixed his signature must have known that the vakalath contained the necessary certificate. Sri T. Ananthasubba Rao's striking off the certificate, and his failure to write his own name to indicate that he is the person engaged by the party are defects which are not fatal. There is the hard fact that, as is clear by his evidence, it is he who was engaged by the defendant and it is with that intention that the defendant affixed his signature to the vakalath. Sri T. Ananthasubba Rao accepted it when he affixed his signature. As against the decision in Muhammad Ali Khan v. Jasram, A.I.R. (1) 1914 ALL. 536 : (36 ALL. 46), we prefer to follow the later decision of the same Court in Ram Sarup v. Bhagwati Prasad, A.I.R. (23) 1936 ALL. 636 : (58 ALL. 912) in which it is observed as follows:
"It was apparently by an error that the name of another vakil remained in the document. Under Order 3, Rule 4 (1) is provided that no pleader shall act in any case unless he has been appointed for the purpose by such person by a document in writing and signed by such person..... The question is whether actually this vakil was appointed by the appellant. The document in question was signed by the appellant and we are satisfied that he intended to appoint the vakil who made the application. The mere mistake that the name of some other vakil remained in the body of the document does not make any difference. In actual fact the vakil in question has been acting throughout for the appellant and it is a mere quibble to hold, as the learned Subordinate Judge has held, that he was not entitled to make the application. There have been recent pronouncements of this Court to the effect that where the vakil is actually intended by a party to act on his behalf and does so act, formal defects of this nature are of no importance. This was the main ground on which the lower Court has held against the appellant. We hold that the decision of the lower Court was wrong."
Again as observed in Maharashtraya Jnankosh Mandal Ltd. v. Bijjulal, A.I.R. (10) 1923 Nag. 183 : (19 N.L.R. 36):
"where a party delivers a duly signed vakalatnama to a pleader without putting his name in the body of the vakalatnama he impliedly authorises him to fill in the details, and if, the pleader simultaneously accepts the vakalatnama and signs his name in token of acceptance, the provisions of the law have been sufficiently complied with, and the vakalatnama is valid, though the name of the pleader does not appear after the word Mr. in the printed form.
Where a vakalatnama did not contain the name of the pleader after the word Mr. in the printed form but bore the signature of the party as well as that of the pleader. Held that the ambiguity in the document was not a patent ambiguity such that Section 93, Evidence Act would exclude evidence to explain it, but was a latent ambiguity which may be cleared up by extrinsic evidence under Section 96 of the same act."
As observed in Mulchand v. Radhabai, A.I.R. (10) 1923 Nag. 281 : (73 I.C. 251):
"where a vakalatnama was signed by plaintiff and accepted by the pleader, the mere fact that, in the body of vakalatnama, the name of other pleader appeared in print and the name of the pleader actually employed was absent altogether does not invalidate it."
9. As regards the defects in the petition which has neither been verified nor signed by the petitioner it has to be observed that such technical defects cannot again defeat the ends of justice. As observed in 7 Mys. L.J. 149:
"Omission on the part of the petitioners to sign and verify their application for setting aside an order of dismissal of a suit was a mere irregularity which did not affect the merits of the case, and when the defect was pointed out the lower Court should have given them time to rectify it."
Again as observed in 7 Mys. L.J. 151:
"The mere fact that the application was not signed and verified by a party at the time it was presented to the Court will not necessarily make the application absolutely void. It is a mere irregularity which can subsequently be cured. It will not affect the merits of the case or the jurisdiction of the Court."
I might add in this case that no objections were taken specifically on those points in the objection statement filed by the respondents and the lower Court should not have allowed the witnesses to be cross-examined on the point in the absence of such objections. If the respondent became aware of those defects at late stage, he should have obtained permission to amend his statement by adding these objections. If this had been done, the petitioner would have had an opportunity to apply for permission to rectify the mistake. Moreover, an affidavit of the petitioner bearing his signature is filed with the petition and could be read as part of the petition; the defects referred to above might be taken as cured.
10. A more important point not considered in the lower Court arises for consideration. This cannot strictly be a case that falls under Order 9, Rule 13. That rule enables the Court to set aside an ex parte decree, if the defendant satisfies the Court that the summons was not duly served or that he was prevented from sufficient cause from appearing when the suit was called on for hearing. This is not a case in which the defendant was not duly served. This cannot also be a case in which the defendant was prevented by any cause from appearing before Court. That is possible only when the defendant would have come to Court but for he prevention. In this case the defendant did not even think of going to the Court on the date on which there was an ex parte decree. He had filed his statement and the case had been posted for reply statement. He did not know that any particulars were called for, the particulars called for were such that his lawyer alone could have pointed out that they had been furnished in the statement already filed in the case. He did not know that his lawyer had gone on a long tour in North India or that he had made perfunctory arrangements for the progress of his case. He could have had no idea of coming all the way from Trichinopoly to Chikmaglur. How can it be said that he was prevented from coming to Court? Order 9, Rule 13 is, therefore, not applicable. It is a clear case in which by his advocate's mistake the idea of going to Court did not even strike him. The only other section to be thought of is Section 151, Civil P.C. As observed in 31 Mys. C.C.R. 161:
"A Court has no power to act under Section 151, Civil P.C., when a remedy is specifically provided for in the Code itself. A party who has failed to avail himself of a remedy provided by law cannot invoke the help of Section 151. But where there is a doubt or difficulty in applying other provisions of the Code to any particular case, or where the Code is silent, the Court may apply the provisions of Section 151, to meet the ends of Justice."
This decision was followed with approval in 37 Mys. H.C.R. 399, in which it was observed:
"Section 151, Civil P.C., does not confer a new power in the Court but makes a statutory recognition of the inherent powers of the Court to do certain things ex debito justitice. It was open to the Munsif in the present case to have treated the second ex parte decree passed on 5th October 1939 as inoperative and granted the defendant's application."
11. Though there does not appear to be any doubt, so far as Mysore is concerned, that when an application to set aside an ex parte decree comes within the scope of Order 9, Rule 13, Civil P.C. the only provision under which relief can be given is that rule and not Section 151, Civil P.C. It is equally clear that the Court has power under Section 151, Civil P.C., to set aside in proper cases ex parte decree when the application do not fall within the scope of Order 9, Rule 13. As regards the decisions outside Mysore State, the applicability of Section 151, Civil P.C., to such cases is consistently recognized in the decision of the High Court of Bombay, while there appears to be some inconsistency int he opinion of some of the other High Courts, When the decisions are examined carefully, it will be noticed, however, that the view taken is fairly uniform, and while relief is given under Section 151, when the application is one outside the scope of Order 9, Rule 13, Civil P.C., no relief is given under that Section when the application to set aside the ex parte decree is one within the scope of Order 9, Rule 13, Civil P.C.
12. In considering this aspect of the matter one has to study carefully the wording of Rules 9 and 13 of Order 9. If might generally be taken, that, as observed in U Aung Gyi v. Govt. of Burma, 189 I.C. 338 at p. 340:(A.I.R. (27) 1940 Rag. 162 F.B.), the principles that govern a case under Order 9, Rule 9, Civil P.C. are the same as those that apply to the setting aside of an ex parte decree under Order 9, Rule 13. An ex parte decree under Order 9, Rule 13 with which we are concerned this case could only be set aside, if the petitioner proves that he was not served or that he was prevented by sufficient cause from appearing before Court on the date of hearing. Before an act such as that of an appearance of a party could be prevented, he must intend to appear and his appearance must have been prevented by some cause. If a Court clearly had given a wrong date to a party inadvertently or dishonestly, can it be said that the party thought of appearing on the date of hearing and that something prevented him from appearing before Court? Unless the party proves that he intended to come to Court and that he was prevented from sufficient cause from doing so the ex parte decision cannot be set aside. It has to be remembered that as held in 31 Mys. C.C.R. 161, it is a well recognised principle of law that
"A Court has no power to act under Section 151, Civil P.C., when a remedy is specifically provided for in the Code itself. A party who has failed to avail himself of a remedy provided by law cannot invoke the help of Section 151."
If, therefore, a party files the application under Order 9, Rule 13, stating that he was prevented by sufficient cause from appearing before Court on the hearing date, and fails to prove his allegations, relief cannot be given to him under Section 151, Civil P.C. The most important decision on the point is the Full Bench decision reported in Neelaveni v. M. Narayana Reddi, 43 Mad. 94: (A.I.R. (7) 1920 Mad. 640 F.B.). The facts of the case as set out in the order of reference are as follows:
"An ex parte decree was passed in the suit. The defendant applied to have it set aside under Order 9, Rule 13, Civil P.C., the Munsiff found that the allegations in the affidavit were not true. In fact his finding would not have enabled him to set aside the decree under Rule 13. He however held that as the amount involved was heavy and as the person who stood surety for the defendant on a previous occasion refused to continue to be a surety, the decree could be set aside."
This is a clear case which fell within the scope of Order 9, Rule 13, and merely because the defendant would suffer a heavy loss, it cannot be said that in spite of his failure to prove that he was prevented by sufficient cause to appear before Court, the Court has power to restore the suit under Section 151, Civil P.C. Similarly, in Manikam Pillai v. Mahudam Pathumal, A.I.R. (12) 1925 Mad. 209:(85 I.C.499).
"where there was an application for setting aside the dismissal of the suit for default and where the lower Court held that the grounds alleged are insufficient to set aside the order, but as a matter of grace, taking into consideration that the suit was nearly for Rs. 10,000 and the plaintiff was a gosha lady and had recently lost her husband set aside the order of dismissal",
it was held that
"Order 9, Rule 9, gives no power to Court to set aside an ex parte order of dismissal as a matter of grace; nor has the Court any inherent power to do so."
In the Full Bench decision of the Rangoon High Court reported in U Aung Gyi v. Govt. of Burma, 189 I.C. 388 : (A.I.R. (27) 1940 Rang. 162 F.B.), it is clear from the judgment of Roberts C.J. that the facts of the case are as follows:
"The rule says that where a suit is dismissed for want of appearance on the part of the plaintiff, the Court shall upon his application to set the dismissal aside, consider whether there was sufficient cause for non-appearance when the suit was called on for hearing. The learned Subordinate Judge addresses himself to this issue, but has refrained from expressing a definite conclusion upon it. He thought that even if no sufficient cause is shown that the Court had inherent powers to restore it,, apart, from the provisions of the rule, provided there was just and reasonable cause for doing so."
It is, therefore, a clear case which fell within the scope of Order 9, Rule 9, and it cannot be said that Section 151 could have been applied. In that case, it was not disputed that
"action under inherent powers of the Court is applicable to those instances in which no provision is made by the Code of Civil Procedure for relief in special set of circumstances."
In Ram Mandar v. Mahdoo Lal, A. I. R. (14) 1927 Pat. 369: (103) I. C. 620) it was rightly observed that
"if a suit dismissed under O. 9, R. 3, cannot be restored under R. 4, for want of sufficient cause for nonappearance, recourse cannot be had to Section 151 to restore the same."
It was also held in Serajul Haque v. Kashim Ali, 39 C.W. N. 894 that "after finding, on an application" under Order 9, Rule 13, Civil P.C. that sufficient cause for non-appearance had not been proved, the Court cannot properly restore the suit under other grounds purporting to act under Section 15, Civil P.C. As observed in that case where there is an express provision for dealing with a certain matter it is not always the case that on failure of such provision, inherent powers of the Court could be invoked. In A.H. Ghaznavi v. Gurcharan Singh, A.I.R. (24) 1937 All. 691: (172 I.C. 72), the facts as follows:
"On the materials in the shape of affidavits placed before the trial Court the conclusion at which that Court arrived was that if the applicants were pre-occupied with other business and could not attend Court an intimation ought to have been given in time to counsel to apply for adjournment and that there was nothing from which one could say that information regarding the date fixed for hearing was not received by counsel or by the parties in proper time."
An examination of the above decisions has made it clear that they are all cases which come within the scope of Order 9, Rule 13, and the application of Section 151, Civil P.C. could not have been even thought of.
13. At the same time, it is also to be noticed that these cases have disapproved of the decisions which have held that ex parte decrees could be set aside under Section 151, Civil P.C. This is possibly due to the fact that though the decisions which have applied Section 151, Civil P.C to set aside ex parte decisions are cases in which the applications to set aside the orders of ex parte disposals did not fall within the scope of Order 9, the opinion has been expressed in such general terms that it looks as if they are authorities for setting aside ex parte decrees under Section 151, even when allegations made in the petitions come under Order 9, Rule 9 or 13, and these allegations are not proved. In fact there are some cases which have gone to the length of holding that relief could be given under Section 151, Civil P.C. even when the application falls under Order 9, Rule 13, and the allegations are not proved. For instance, in the case reported in Ram Narain v. Ramdhan Singh, A.I.R, (11) 1924 Pat. 274 : (72I.C. 668) the following observations are found:
"Now the Munsiff, although he did not find that there was sufficient causes for the plaintiff's non-appearance which would have required him to restore the suit, does not appear to have considered whether this was not a case in which to exercise his inherent powers. That there is such a power in the Court has been repeatedly held. See Bilasirai v. Cursondas, 44 Bom. 82: (A.I.R. (7) 1920 Bom. 337) and Somayya v. Subbamma, 26 Mad. 559."
As observed in the decision of this Court already referred to and as observed in Serajul Haque v. Kashim Ali, 39 C.W.N. 894, after finding on an application under Order 9, Rule 13, Civil P.C., that sufficient cause for non-appearance had not been proved, the Court cannot properly restore the suit on other grounds,, purporting to act under Section 151, Civil P.C. It may be stated with respect that the decisions that go to the length of stating that relief can be given even when the application falls under Order 9, Rule 13, and the Court finds it not possible to give relief, on the allegations being not proved, are not consistent with the well recognized rule that where there is an express provision int he Code for dealing with a certain matter it is not always the case that on failure of such provision inherent powers of the Court should be invoked.
14. There are decisions of the Bombay High Court, which have uniformly held that relief can be given in setting aside ex parte decrees in proper cases under Section 151, Civil P.C. As there is no divergence of opinion in that Court, it is not necessary to refer to the cases of that Court. As regards cases which justify the application of Section 151, Civil P.C., for setting aside ex parte decree in certain in cases the best decision that could be thought of is the decision in Somayya v. Subbamma, 26 Mad. 599, that being a decision which been relied on frequently to support an application of Section 151, Civil P.C., on cases of this kind. It has however been dissented from in the later Full Bench case of the Madras High Court, previously referred to. The facts of the case which led to the decision in Somayya v. Subbamma, 26 Mad. 599 are stated to be as follows:
"On Civ. Reven. Petn. No. 123 of 1902 coming on for hearing before the High Court on 13th August 1902 and the vakil for the petitioner representating that he was not furnished with funds to purchase printed papers and the petitioner himself not appearing in person, the petition was dismissed. Subsequently, the petitioner alleged by affidavit that, being informed by his pleader at Ellore that he (petitioner) should furnish necessary funds to his vakil at Madras with regard to the above petition, he immediately sent money direct to the vakil at Madras which reached him on 15th August 1902 (two days after dismissal of the petition). The petitioner further alleged that he lived at an out-of-the way place, where the delivery of letters was not regular and consequently the vakil at Madras got the money-order and instructionslate. The respondent's vakil contended that the facts disclosed in the petitioner's affidavit, or otherwise ascertained on reference to the record did not establish that the petitioner or his vakil was prevented from any sufficient cause from attending when the petition was called on for hearing and, that being so, the Court had no discretion to restore the petition to file for any other cause".
This is clearly a case, as stated by the respondent's vakil, that cannot come within the scope of Rule 9 or 13 Order 9. The question was whether the ex parte disposal can be set aside under Section 151, Civil P.C. Bhashyam Ayyangar J. observed as follows:
"No doubt statutory enactments, although expressed in affirmative language, may sometimes be construed as having a negative implied ; but such implication must be a necessary and reasonable one. There is nothing in any of the above Sections of the Code to imply that the application for restoration cannot be granted unless there was sufficient cause which prevented the appearance though if there was such a cause it is made obligatory on the Courts in the case of Original suits to set aside the order o dismissal or decree passed ex parte as the case may be. Such a narrow construction of the Sections would lead to most startling results and serious consequences which certainly could not have been intended by the legislature. A suit may be dismissed for default for appearance because, in the opinion of the Judge the vakalat authorising the vakil to appear for the absent party is invalid or has been exhausted or the absent party is invalid or has been exhausted or the vakil is not entitled to practise in his Court, or the person who appears as plaintiff or defendant in the case is not the real party but personates such party. There can be no appeal against such an order Gilkinson v. Subramania Ayyar, 22 Mad. 221, and a revision petition under Section 622 Civil P.C., can rarely, if ever, be of any avail, nor can a review be applied for to the successor of the Judge who passed the order except on the ground of the discovery of new and important matter or evidence (Section 624, Civil P.C.); and, if an application for review be made to the Judge who passed the order but is rejected by him or his successor, there can be no appeal against the order so rejecting it..... Besides the instances already referred to and similar ones, there may be cases in which, without any default or blame on the part of a suitor, the suit or appeal may have been dismissed for default of appearance of his vakil, next friend or guardian ad ,litem, as the case may be, and the non-appearance of such vakil, nest friend or guardian may be due to their negligence or they may fail to prove that they were prevented by sufficient cause from appearing when the case was called on. It would be impossible to lay down a hard and fast rule that party who under the law, can engage as his pleader only a person who has been enrolled as a pleader by the Court or that an infant who can appear only by a next friend or a guardian ad litem appointed by the Court must necessarily suffer for the non-appearance of his pleader next friend or guardian and seek his redress, if any, only against him. It may be that the party who has thus suffered is only able to obtain a decree for nominal damages or a fruitless decree for substantial and adequate damages against such pleader, next friend or guardian, and in the majority of cases it will be impracticable to establish before the Court in which he sues for damages, which may happen to be a Court of Small Causes that he could ultimately have succeeded in the suit or appeal which was pending in the High Court of some other tribunal and which has been dismissed for default. And in a large class of suits in which the claim is not a mere pecuniary one, compensation by way of damages will be no remedy at all. The Courts have sufficient disciplinary jurisdiction over pleaders as such, as well as over next friends and guardians-ad-litem of infants, and ample power to subject parties to terms as to costs when relieving them on reasonable and proper grounds from the serious and in some cases irreparable consequences of refusing to restore to file cases which have been dismissed for default or in which decrees were passed ex-parte. The distinction is that when appearance was prevented by a sufficient cause the Court has no discretion in the matter under the Code and must restore the case to file whatever may prima facie be the merits of the suit or the defence thereto; whereas in other cases when there may be other just an reasonable cause for restoring a case to file the merits of the applicant's case will form a very important element in the exercise by the Court of its judicial discretion".
It will be noticed that in this case all the reasons are marshalled or the relief being given under Section 151, Civil P.C. by setting aside orders of ex parte disposals in cases in which a party has, for being absent, good reasons other than those contemplated under Order 9, Rules 9 and 13. It is no doubt true that the opinion of Bhashyam J. has been expressed in such general terms that it looks as though he is of opinion that relief can be given even in cases that come within Order 9 Rule 13, and it is this aspect of the matter that was possibly responsible for this decision being overruled by the later Full Bench case of the Madras High Court, which dealt with a case in which allegations which fell within the scope of Order 9 Rule 13 were not proved. All the same the soundness of the view taken by Bhashyam J. in giving relief under Section 151 for cases that do not come within the scope of Order 9 Rule 9 or 13 cannot be doubted, and this is also in accordance with the decision of this Court already referred to.
15. As observed in Abdullabhai, v. Isabhai 141 I.C. 402: (A.I.R. (19) 1932 Bom. 634):
"Where the defendants are present in Court when the case is called, the mere fact that their counsel are not present by reason of their being then engaged in other Courts in the same building is not a sufficient cause within the meaning of Order 19, Rule 3, Civil P.C. to set aside a decree passed ex parte in the case. But the Court may,under its inherent jurisdiction, restore the suit the terms upon which the Judge may do so being discretionary."
As observed in Sorabji Rustomji v. Ramji Lal, 80 I.C. 237: (A.I.R. (11) 1924 Bom. 392):
"The mere fact that a party or his pleader has arrived in Court after the proper hour when the suit has been disposed of ex parte is no reason whatever why the suit should not be restored to the board and the case heard on its merits, the Court imposing such conditions on the defaulting party as might meet the justice of the case."
It is observed in S.N. Banerjee v. H.S. Suhrawardy, A.I.R. (15) 1928 Cal. 772: (106 I.C. 91), that where there is even an element of negligence, the Court on the original side may restore the suit upon proper terms. In Maung Saw v. Ma Bwin Byu, 95 I.C. 521: (A.I.R. (13) 1926 Rang. 109) an appeal which was 17th on the list for the day was, owing to some extraordinary circumstances, called at 12-30 P.M. much earlier than the appellant's advocate had anticipated, and was dismissed in default. On an application for restoration, it was held
"that the case was one in which, whether there was sufficient cause or not, the Court should exercise its inherent jurisdiction to restore the case for the ends of justice, provided the respondent was protected in the matter of costs."
In Adit Prasad v. Ramharakh Ahir, 4 Pat. 180: ( A.I.R. (12) 1925 Pat. 435), it was observed:
"Where a litigant handed over to his pleader the balance of the court-fee due on a plaint and the pleader's clerk, to whom the money was entrusted to be paid into Court, misappropriated the same and filed bogus applications for time to pay the deficit court-fee with the result that the Court ultimately rejected the plaint held, that after having paid the money, to the pleader who was a duly constituted agent and officer of the Court under the Legal Practitioners Act and the rules of the High Court, and whose duty it was to deposit it in Court, the responsibility of..... the Plaintiff ceased until he was informed of the default..... where some other provisions of the Civil Procedure Code prohibits a thing from being done Section 151 does not empower the Court to direct such thing to be done. But where there is doubt and difficulty in applying the other provisions of the Code to the facts of a particular case there is no bar to Section 151, being invoke."
The principles laid down in these decisions have been clearly followed in 31 Mys. C.C.R. previously referred to and it is held:
"A Court has no power to act under Section 151, Civil P.C., when a remedy is specifically provided for in the Code itself. A party who has failed to avail himself of a remedy provided by law cannot invoke the help of Section 151. But where there is doubt or difficulty in applying other provisions of the Code to any particular case, or where the Code is silent, the Court may apply the provisions of Section 151, to meet the ends of justice."
16. As to the argument that no ex parte decree can be set aside except in circumstances mentioned under Order 9, Rule 13, Civil P.C., as this provision which provides for ex parte decrees being set aside does not provide for such a case, it has to be stated that the correct way of looking at such cases would be that they are case not provided for under the Code and in proper case relief can be given under Section 151, Civil P.C.
17. That when relief can be given under certain provisions of Civil Procedure Code, the same relief can be given under Section 151, Civil P.C. in case that fall outside the scope of those provisions is clear by the following instances of cases mentioned in the commentary of that section in Mulla's Civil Procedure Code:
"(g) to allow a defence in forma'pauperis;
(i) to remand a case to which neither Order 41, Rule 23, nor Order 41, Rule 25, applies;
(1) to apply the principles of res judicata to case not falling within Section 11 of the Code;
(p) to stay proceedings pursuant to its own order in view of an intended appeal;
(u) to restore a suit dismissed for default in case not provided for by Order 9, Rule 9;
(z) to set aside an order of dismissal made under Order 9, Rule 8, for non-appearance of the plaintiff, when the non-appearance was owing to the plaintiff's death and the fact of the plaintiff's death was not brought to the notice of the Court dismissing the suit;
(jj) to review an order of dismissal of an application under Order 9, Rule 9;
(mm) to stay a suit even if it does not come within Section 10 of the Code."
That an appellate Court can remand a suit for fresh disposal under Section 151, Civil P.C., as distinct from its power to do so under Order 41, Rule 23 or 25 is recognized in 39 Mys. C.C.R. 573. That apart from its power to set aside sale under Order 21, Rule 92, a Court has inherent power to set aside a sale is recognized in 31 Mys. C.C.R. 47. 42 Mys. H.C.C.R. 545 and 42 Mys. H.C.R. 707, while it is made equally clear in 40 Mys. H.C.R. 187 that
"when the judgment-debtor's application is one falling within Rule 90, of Order 21, Civil P.C., Section 151, to set aside the sale is by its scope and intention clearly inapplicable."
Similarly, in 34 Mys. C.C.R. 122.
"When an appeal was dismissed under Order 51, Rule 18, for non-payment of process-fee, an application for re-admission of the appeal under Order 41, Rule 19, was presented more than 30 days after the dismissal, held that the application is barred under Article 168, and the Court had no jurisdiction to readmit the appeal after the period of limitation. Section 151, cannot be construed as empowering the Court to act in defiance of the express provisions of Limitation Act."
Section 151, Civil P.C., could not be applied as the application was one within the scope of Order 41, Rule 19, corresponding to Order 9, Rule 13. Miller C.J. did not in the case reported in 26 MYS C.C.R. 248, hesitate to confirm the order restoring a suit dismissed for default of appearance under Section 151, Civil P.C., relying on the Privy Council Case, Debi Bukhsh Singh v. Habib Shah, 35 ALL. 331 : (40 I.A. 151) already referred to, as it was found that both parties had taken a wrong date presumably owing to something done or said by the Judge or a Clerk by mistake and the case was, therefore, one which fell outside the scope of Order 9, Civil P.C.
18. The result is that when an application is filed to set aside an ex parte decree on the ground that the petitioner was not duly served with summons or that he was prevented from sufficient cause from appearing before Court the ex parte decree can be set aside only under Order 9, Rule 13, on these allegations being proved; relief cannot be given in such cases under Section 151, on the ground of hardship when the allegations are not proved. If an application is filed making allegations that do not come within the purview of Order 9, Rule 13, nothing comes in the way of relief being given under Section 151, Civil P.C. by setting aside ex parte decree in proper cases.
19. It has already been shown in this case that this is a case which does not come within the provisions of Order 9, Rule 13, Civil P.C., and that the ex parte decree has to be set aside under Section 151, Civil P.C., as it was passed for no fault of the defendant. At the same time to avoid any prejudice that might be cause to plaintiff by setting aside the ex parte decree on account of the negligence of the defendant's counsel, it is ordered that this misc. appeal be allowed, the order of the lower Court and the ex parte decree be set aside on condition that the entire amount claimed in the plaint is deposited by the defendant in the Subordinate Judge's Court within two months from this date and that this misc. appeal against the order dismissing the application of the petitioner to set aside the ex parte decree be dismissed in case he fails to do so. Both parties to bear their own costs throughout.
20. Order accordingly.