- (1.) JUDGMENT : This is First Appeal from the Order of the learned Civil Judge, Allahabad dated the 4th December 1959 dismissing the application filed under O. XLI R. 19 read with S. 151 of the C.P.C. thereby refusing to restore the appeal of the defendant-petitioner dismissed for default.
(2.) THE counsel for the appellant was admittedly busy in arguing a case in another court when notice of the appeal was served on him. The counsel totally forgot to note down the date in his diary and thereafter the information which had been conveyed to him completely slipped out of his memory. Consequently, neither he nor the appellant appeared on the date of the hearing, and the respondent having appeared the appeal was dismissed for default of the appellant under Order XLI Rule 17 of the C.P.C. After the expiry of 30 days, which is the period of limitation prescribed under Art. 168 of the Indian Limitation Act for readmission of an appeal dismissed for default, the present application was moved invoking not only Order XLI Rule 19 but also the provisions of S. 151 of the C.P.C. The learned Civil Judge believed the affidavit of the counsel wherein it had been stated that he was busy arguing another case at the time when the notice was served. He was also satisfied that there was sufficient cause but as the application was made beyond the period of limitation provided under Art. 168 of the Limitation Act and relying on the decision of the Oudh Chief Court in Firm Anant Ram Mangat Ram v. Firm Ram Swamp Sukhdeo Prasad, AIR 1937 Oudh 426 held that even if it he assumed that such an application can be under S. 151 of the C.P.C. then too such an application would stand to be dismissed as being time barred. Mr. Gopi Nath, learned counsel for the appellant has strenuously contended that the said decision of the Avadh Chief Court must be taken to have been overruled by the decision of the Supreme Court in the case of Manohar Lal Chopra v. R.B. Rao, AIR 1962 SC 527. It was further contended that special provisions such as Order XLI Rule 19 in the present case would not bar the court from exercising its inherent jurisdiction under S. 151 of the C.P.C. provided of course there was no conflict between the provisions of the C.P.C. and the exercise of such inherent jurisdiction and that the bar of limitation, in an extraordinary case, would justify the court in overcoming it by invoking its inherent jurisdiction.
(3.) THE first question which arises is whether the special provisions of Order XLI Rule 19 would bar the exercise of inherent jurisdiction under Section 151 of the C.P.C. The aforesaid Supreme Court decision, AIR 1962 SC 527 on which reliance was strongly placed by Mr. Gopi Nath for the appellant merely laid down, after having noticed the conflict between the various High Courts, that inherent powers can be exercised notwithstanding the existence of specific provisions in the C.P.C. for the issue of interim injunctions. Their Lordships observed : "We are of opinion that the latter view is correct and that the courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order XXXIX C.P.C....... …. It is well settled that the provisions of the Code are not exhaustive for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression "if it is so prescribed" is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued ordinarily the court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule....... .No party has a right to insist on the Courts exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of S 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power." ;