DURGA DEVI Vs. BHAGWANDAS JAYSWAL
LAWS(CAL)-1963-7-27
HIGH COURT OF CALCUTTA
Decided on July 02,1963

DURGA DEVI Appellant
VERSUS
BHAGWANDAS JAYSWAL Respondents


Referred Judgements :-

RAJA DEBI BAKHSH SINGH V. HABIB SHAH [REFERRED TO]
KESHARDEO CHAMRIA VS. RADHA KISSEN CHAMRIA [REFERRED TO]
PADAM SEN VS. STATE OF UTTAR PRADESH [REFERRED TO]
MANOHAR LAL CHOPRA VS. RAI BAHADUR RAO RAJA SETH HIRALAL [REFERRED TO]


JUDGEMENT

- (1.)THE petitioner is a thika tenant. He has applied under Article 227 of the constitution against an order of the appellate authority under the Calcutta thika Tenancy Act refusing to set aside an ex parte order passed by the controller. It appears that the landlord filed an application under section 5 of the Calcutta Thika Tenancy Act and an ex parte order was passed on the 4th August 1962. The petitioner thereafter applied under Order 9, Rule 13 and section 151 of the Code of Civil Procedure for setting aside the ex parte order. The Controller referred to a decision of Sen, J. , in C. R. , case No. 3371 of 1957 and he found that in view of the aforesaid decision of Sen, J. , Or. 9, rule 13, had no application. The trial authority further found that section 151 of the Code of Civil Procedure could not be invoked for granting a substantive right where the Legislature had not provided for the same. The trial authority was also of opinion that as the petitioner had a remedy by way of an appeal, the petition under section 151 was not maintainable. There was an appeal to the appellate authority below. The appellate authority found as well, that as the petitioner had a remedy by way of an appeal, the application would not be maintainable. It was further urged that an application for review could have been filed and that would have been the proper remedy. In these circumstances, the appellate authority did not choose to allow the appeal and dismissed the same. Against that order the petitioners have moved this Court. Mr. Mitter on behalf of the petitioners does not dispute the decision of Sen, J. , in the aforesaid civil revision case that Or. 9, Rule 13, would not apply. Mr. Mitter urges that, it does not mean that the Controller had no inherent powers to set aside the ex parte order. The other remedies which the petitioners had, are not adequate. Therefore, it is urged, the controller failed to discharge his duties by not allowing the parties to adduce evidence in the matter and dismissing the petition as not maintainable.
(2.)IT cannot be disputed that every court or every Tribunal has some inherent powerssome powers which have not been provided for in the statute or under the rules. Unless the tribunal or Court has some inherent powers it cannot function from day to day. The statute and the rules are not exhaustive and cannot be exhaustive. There is no provision in the Calcutta thika Tenancy Act or in the rules thereunder corresponding to Or. 9, rule 13, of the Code of Civil Procedure. That may mean, at most, that a party has no independent right to file an application for setting aside the ex parte order. But that does not mean that the tribunal has no inherent power to correct its mistakes made inadvertently. It is urged that the bailiffs of the tribunal did not do their duties properly and the tribunal therefore was under the mistaken belief in considering that the bailiffs had done their duties and acted on that mistaken belief in deciding the case ex parte. If a Court or a Tribunal finds that it has committed an act of mistake, it is the duty of that tribunal or Court to correct itself. That duty is not specifically provided for, but that duty is always there. Mr. Mitter is right when he says that a Court or a tribunal always owes a debt to justice and it is ever the duty of the Court or the tribunal to discharge that debt. There can be no question of any special provision of law, if the Court has done something by which the Court has refused to discharge its debt to justice. Whether on the facts of the particular case, the court has discharged such a debt to justice or not, is another matter. But there is no gain-saying that the Court ever owes a debt to justice and that debt the Court has ever to discharge. On this is based the powers of the court referred to as powers ex debitio justice.
(3.)THE Tribunals below were of opinion that the petitioner had a right of appeal. Indeed the petitioner had; but that remedy by way of an appeal would not be satisfactory or adequate and that remedy is distinct from the remedy applied for, under inherent powers of the Court. A party has a right to appeal, but still the Court has a duty to do justice. However, coming to the question as to the remedy by way of an appeal, the said remedy is of any use only when there are materials on the record in support of the case of the appellant. A party who was unable to appear before trial court and who was thus prevented from placing all materials on his behalf before the Trial court, can hardly expect any relief in a Court of appeal. The relief by way of appeal is thus not adequate nor satisfactory; that relief by way of an appeal would be limited to materials on record at the ex parte hearing. But in an application for setting aside an ex parte order, the question would be whether the Court acted inadvertently or by mistake. In order to prove that, the parties have to make a different case and to produce evidence as to what prevented the party from appearing. The scope of an appeal is thus different from the scope of an application for setting aside the ex parte order.


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