ANDHRA BANK BHANJANAGAR Vs. SUSANTA KUMAR MISHRA
LAWS(ORI)-1988-11-8
HIGH COURT OF ORISSA
Decided on November 17,1988

ANDHRA BANK, BHANJANAGAR Appellant
VERSUS
SUSANTA KUMAR MISHRA Respondents

JUDGEMENT

- (1.) The plaintiff in Money Suit No.6/87 of the court of Subordinate Judge, Bhanjanagar whose application in M.J.C. No. 7/88 for restoration of the suit dismissed for non-payment of the court-fee was rejected is the petitioner in this revision. Admittedly the plaint was rejected for non-payment of Court fee on 6-1-1988. In the application for restoration of the suit it was stated that due to non-availability of higher denomination of the required court-fee amounting to Rs. 2072/- the plaintiff could not file the court-fee within the time permitted by the Court. The court though expressed doubts, did not disbelieve the factual grounds taken to explain the default in payment of court fee, but rejected the application for restoration on the ground that it had no jurisdiction under Section 151, C.P.C. to grant the relief of restoration prayed for. Another ground of rejecting the application of the plaintiff is that it was not verified. During the course of argument of this revision, learned counsel appearing for the defendant-opposite party while supporting the impugned order fairly conceded that the rejection of the application on the ground that it was not verified is not sustainable, but contended that the rejection was justified as the court had no jurisdiction under S.151, C.P.C. to allow restoration of the suit inasmuch alternative remedy by way of appeal was available to the plaintiff. He has relied on the decision of this Court reported in (1975) 41 Cut LT 231, Satyabadi Hota v. Jagannath Misra in support of his contention.
(2.) The only point for consideration in this revision is whether the trial court was possessed of the jurisdiction under S.151, C.P.C. to restore a suit which has been dismissed for non-payment of the court-fee. This matter was dealt with in a single Judge decision of this Court as early as in the year 1964 reported in AIR 1964 Orissa 134, Bahadur Pradhani v. Gopal Patel, where his Lordship held that the provisions of the Civil P.C. do not control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognises the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code. The provisions of the Code are not exhaustive as the Legislature is incapable of contemplating all possible circumstances which may arise in future litigation and consequently may provide procedure for them. His Lordship further held that although the order rejecting the plaint was a decree and was appealable, there was hardly any scope for getting any relief in the appeal. His Lordship concluded that the trial court has got the jurisdiction to restore a suit under S.151, C.P.C. even though the suit is dismissed for non-payment of court-fee and appeal lies against the order of dismissal. It may further be mentioned that admittedly the Code does not provide any procedure for relief in such a situation in that very court. The aforesaid decision, therefore, in my opinion, had correctly decided the law. In a later decision reported in (1975) 41 Cut LT 231 (supra) on which reliance has been placed in the impugned order and also by the learned counsel for the opposite party in this revision, it was held by another learned single Judge of this Court that the order rejecting the plaint for non-payment of court-fee is a decree and is not available to be restored under S.151, C.P.C. as appeal lies against it. His Lordship referred to some decisions of other High Courts, but no reference has been made to the decision of this Court of the year 1964 which held the field by then. The law is well settled that if there are divergent decisions of the same Court by co-ordinate Benches, the earlier decision is to prevail specially when the same has not been distinguished or dealt with in the latter case. Mr. Panda, learned counsel appearing for the opposite party relied on two other decisions - one by a learned single Judge of this Court reported in AIR 1968 Ori 163, Dr. S.K. Walid Ali v. Mst. Jiga Bibi and the other of a Full Bench decision of this Court reported in AIR 1980 Ori 162, E.I.D. Parry Ltd. v. M/s. Agro Sales and Service - in support of his further submission that recourse cannot be taken to S.151 of the Civil P.C. for restoration of a suit which was dismissed for non-payment of court-fee.
(3.) I do not find any assistance from these two decisions in support of the point. In the decision reported in AIR 1968 Ori 163 (supra) the learned Judge was examining as to whether an appeal or revision would lie against the order of rejection of the plaint for nonpayment of the deficit court-fee. The question as to whether S.151, C.P.C. is available for restoration of such a suit was not in issue nor was dealt with by the learned Judge in that decision. In the Full Bench decision referred to abvoe, the question was completely different. In that case the suit was decreed ex parte whereafter the two sets of defendants filed two separate applications both under O.9, R.13, C.P.C. for setting aside the ex parte decree. The learned trial court had rejected the applications on a finding that there existed no sufficient cause. Two separate appeals were carried to this Court and were heard analogously by a learned single Judge of this Court. His Lordship categorically held that the ground of illness which was taken to explain the default is not acceptable and, therefore, did not interfere in the finding of fact recorded by the learned trial court. In other words, his Lordship held that there was no sufficient cause as alleged for setting aside the ex parte decree under O.9, R.13, C.P.C. but at the same time his Lordship was of the view that in order to do justice, in a suitable case an ex parte decree can be set aside or a suit dismissed for default can be restored by invoking powers under S.151, C.P.C. even though the requirement of "sufficient cause" as provided under Rr.9 and 13 of O.9, C.P.C. is not complied with. The aforesaid decision of the learned single Judge became the subject-matter of a Letters Patent Appeal referred the matter to a larger Bench and that is how those appeals came to be heard by a Full Bench. The Full Bench reviewed the question of law involved in that case, and held that once statutory provision has been made to cover a given field, application of inherent powers would stand regulated and in case statutory law covers the entire field, application of inherent powers would stand excluded. In that view of the matter, their Lordships came to a conclusion, in the facts of that case, that since provision has been made in the Code for setting aside ex parte decree under O.9, R.13, C.P.C. and the court having held that there was no sufficient cause within the meaning of that Rule, it had no jurisdiction to set aside the ex parte decree by taking recourse to the inherent powers under S.15l, C.P.C. This decision has, therefore, no application to the facts of this case.;


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