Decided on October 25,1944

Pitchika Somanna And Ors. Appellant
Putchala Chinnayya Respondents


Byers, J. - (1.) THESE petitions arise out of the dismissal of two applications brought Under Order 9, Rule 9, Civil P.C., for the restoration to the file of the lower Court of two petitions Under Section 73, Madras Village Courts Act. The facts in so far as they are necessary are that on an adjourned hearing date the petitioners' vakil was absent and an adjournment of some 15 minutes or so to enable him to be present was refused. The petitions were dismissed and on the same day two petitions for restoration, supported by the necessary affidavit were presented, but the learned District Munsif dismissed them on the ground that Order 9, Rule 9, Civil P.C., did not apply to proceedings Under Section 73, Madras Village Courts Act. He relied on the decision of Burn J. in Khizar Mohamed v. Addul Razack Sahib, 2 M.L.J. 88 which was followed by me in Subbama v. Venkatareddi, A.I.R. 1943 Mad. 260. The argument now presented is that although Order 9, Rule 9 of the Code applies in terms only to suits, this remedy is made applicable by Section 141 of the Code to all proceedings in any Court of civil jurisdiction. In support of the argument reliance has been placed on the decision of Wadsworth J. in Lakshmudu v. Saramma , 1940 M.L.J. 71 and Venkatasubbarayadu v. Anusuya Devi . In both these cases the learned Judge hold that an application made Under Section 28, Madras Agriculturists' Relief Act which has been dismissed for default can be restored Under Order 9, Rule 9 read with Section 141, Civil P.C.; but I am bound by the decision of the Bench in Anantharaju Shetti v. Appu Hegde, A.I.R. 1919 Mad. 244 in which Section 141 of the Code was relied on to support the action of a District Judge in reviewing his own order passed Under Section 10, Religious Endowments Act, 1863. Oldfield J. pointed out that the Act contained no explicit provision for review and in dealing with Section 141, Civil P.C., he made the following observation: That section however does no more than provide I for the procedure to be adopted by Courts of civil jurisdiction in dealing with matters before them. It does not authorize an appeal, since that would not ho a matter of procedure, but the recognition of substantive right, which must be conferred in explicit terms. And similarly it confers no right to a review.
(2.) SESHAGIRI Ayyar J.'s opinion was expressed in similar terms: It was next argued that Section 141, Civil P.C., is indicative of a general enunciation of principle by the Legislature that to all the judicial proceedings, the Code of Civil Procedure is applicable. The section only empowers the Judge to regulate judicial trials by rules as to summoning of witnesses etc., which are to be found in the Code and not that the Code is to be applied in its entirety to such proceedings including power of appeal and of review. The same principle applies to the power of restoration which is conferred by Order 9, Rule 9 of the Code to suits dismissed for default. There is no provision in the Code or in the Madras Village Courts Act for the restoration of petitions dismissed for default. Regarding the merits, however, something must be said. According to the petitioners' affidavit in the lower Court, they applied for 15 minutes grace in order that their pleader might be present. In conducting their daily business advocates frequently find it necessary to make small adjustments in order to meet each other's professional convenience and the convenience of the Courts; if the learned District Munsif had in fact refused to grant an adjournment of this brief duration for the reason stated, I consider that he erred in the exercise of his jurisdiction and I would have been prepared on the facts stated to interfere in revision Under Section 115, Civil P.C. The result of these petitions must be that they are ordered to be dismissed with costs with one advocate's fee.;

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