Decided on November 15,1960

GORDHAN Appellant
SCOT GANGA BAI Respondents

Referred Judgements :-



JAGAT NARAYAN, J. - (1.)THIS is a plaintiff's revision application against an order of the Munsif East Jaipur dismissing his suit for default. 2. The suit was instituted in the Court of the Munsif on 4. 3. 55 by Gordhan plaintiff against Smt. Ganga Bai defendant No. 1 and Mangal Chand defendant No. 2 for cancellation of a decree obtained by smt. Ganga Bai against Gordhan and Mangal Chand on the ground that it was obtained by fraud. On 23. 2. 56 the court fixed the dates for framing of issues and for recording the evidence of the plaintiff simultaneously. 3. 20th March 1956 was fixed for framing of issues. Issues were not framed on that date and the case was adjourned to 9. 4. 56 for framing issues. On that date Shri Milap Chand who was appearing for the plaintiff wanted to go early. He accordingly requested the court to frame issues in the suit in the early hours. The court told him that only one issue arose in the suit and that he could go away. As soon as Shri Milap Chand left the court room it occurred to the learned Munsif that he might not have recorded admission or denial on the documents which is generally recorded on the date of issue. He recalled Shri Milap Chand who informed him that he had already admitted and denied the documents filed by the defendants and that he did not wish to produce any document. After that he left the court. 4. The case was |further called sometime later in the day. The parties were absent. The court accordingly passed the following order: *** Shri Milap Chand remained under the impression that the court would frame an issue as promised and that the evidence of the plaintiff would be recorded on 23. 5. 56 which had already been fixed for the purpose. As he had to appear for the Judicial Service Examination that day he asked the plaintiff to engage some other lawyer for that day and to take his witnesses for their examination. When the plaintiff appeared in court on 23. 5. 56 with his witnesses he found that the suit had already been dismissed for default on 9. 4. 56. He filed an application for setting aside the dismissal for default on the same day. THIS application was drafted by Shri Sobhag Mal whom he had engaged for that day. It was mentioned in the application that the plaintiff did not know the date 9. 4. 56 and so he did not appear on that date. It was stated that he only knew of the date 23. 5. 56 and had come with his witnesses, but found that the suit had been dismissed for default on 9. 4. 56. On this application notice was issued to the defendants to show cause why the dismissal for default should not be set aside. Shri Milap Chand filed an application supported by an affidavit on 30. 5. 56 in which the facts which have been given above were mentioned. The defendants did not file any objection or counteraffidavit to rebut the allegations made by Shri Milap Chand. The court dismissed the application on the ground that it had been filed more than a month after the date of dismissal of the suit and was barred by limitation under Article 163 and that as sec. 5 of the Limitation Act had not been made applicable to Article 163 in Rajasthan he was unable to set aside the dismissal. As for the specific allegation made in the application that Shri Milap Chand had gone away on 9. 4. 56 after taking the express permission of the court the learned Munsif wrote in his order that he had no personal recollection what had taken place on that date, but that the order sheet did not bear out the allegation made by Shri Milap Chand. He however did not say that if Shri Milap Chand had left the court room with his permission on that date he would not have dismissed the suit for default. 5. On behalf of the plaintiff it is urged in this revision application that the order of learned Munsif dated 9. 4. 56 should be set aside under s. 151 C. P. C. on the principle that the act of the Court shall not prejudice any party (actus curiae naminem gravabit ). Reliance is placed on a decision of the privy Council in Jai Berham Vs. Kedar Nath (1) and a decision of the Calcutta High Court in Nalini Kanta Vs. Kamaraddi (2 ). 6. On behalf of Smt. Ganga Bai it is contended that if the allegation made by Shri Milap Chand had been true the court would not have dismissed the suit for default on 9. 4. 56. I am unable to accept this contention. The court was itself not sure whether Shri Milap Chand actually made a request to it to permit him to go away early and it had actually granted that permission. What happened on that date was narrated in detail by Shri Milap Chand in his application dated 30. 5. 56 in order to help the court in recollecting the events of that day but the court was unable to recall to its mind what had actually happened. I see no reason to doubt that what Shri Milap Chand stated in his affidavit is true. 7. I accordingly hold that the order dated 9. 4. 56 was passed by the court by mistake as it had forgotten that it had permitted Shri Milap Chand to go away and that it had told him that it would frame the only issue which arose in that case. The court could have-rectified its error on discovering it by the exercise of its inherent power under sec. 151 C. P. C. In Keshardeo Vs. Radha Kishen (3) on the adjourned date of hearing of an execution, the decree-holder applied for time for giving instructions to his pleader for taking necessary steps in execution but the application for time was refused by the court and the execution case was dismissed oh part satisfaction by the very same order without formally calling for the execution case and without intimating the decision of the adjournment application to the decree-holder's pleader in order to enable him to take the necessary steps. The decree-holder then applied under sec. 151 C. P. C. for restoration of the case and the court thereupon restored the execution case under its inherent powers in order to rectify the mistake which it had committed in dismissing the execution case by the same order without giving opportunity to the decree-holder to take the necessary steps. The High Court set aside the order of restoration. Their Lordships of the Supreme Court held that in the circumstances of the case the order dismissing the execution on part satisfaction was bad and the executing court was justified in correcting the same under its inherent powers. 8. The revision application is accordingly allowed and the order of dismissal dated 9. 4. 56 is set aside. 9. In the circumstances of the case, I may direct that parties shall bear their own costs. .

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