SHARMA J. - (1.) THIS is a civil revision by Gopal Dass, plaintiff, under section 115 of the Code of Civil Procedure, against an order of the Additional Munsiff, Court No. 2, Jodhpur, restoring an application for setting aside the ex-parte decree, which was dismissed for default of the defendant non-petitioner's appearance on 10th October, 1975.
(2.) THE relevant facts giving rise to this revision-petition may be briefly stated as follows: - Gopal Dass, petitioner, obtained a money decree on 2nd August, 1971, against Ram Chandra, defendant, in Civil Suit No 135 of 1971. Ram Chandra applied under Order IX Rule 13, C. P. C for setting aside the ex-parte decree passed against him by the Additional Munsiff, Court No. 2, Jodhpur, on the ground that the summons in suit was not served on him by registered post as he was not present in Gulabpura on 30th July, 1970 and had gone to Bhusawal to look after his land and orchard. He came to know about the ex-parte decree on 26th Febuary, 1975 having been passed against him from a peon of the court of Munsiff. Gulabpura, and so he rushed to the court of the Additional Munsiff, No. 2, Jodhpur, on 14th March, 1975 and applied for setting aside the ex-parte decree on 15th March, 1975. The learned Additional Munsiff No. 2, Jodhpur, upon receiving an application for setting aside the ex-parte decree, issued notice thereof to Gppal Dass, decree-holder, to appear before him on 11th July, 1975. On 11th July, 1975, it appears that notice was not served on Gopal Dass, decree-holder. So the case was adjourned to 6th September, 1975, with a direction that a fresh notice be issued to Gopal Dass. On 6th September, 1975, notice could not be issued to Gopal Dass because Ram Chandra did not file fresh notice. It was ordered that notice be issued to Gopal Dass as soon as it is filed by Ram Chandra, The case was adjourned to 10th October, 1975. On 10th October, 1975, neither Ram Chandra, nor any counsel on his behalf appeared in the court when the case was taken-up for hearing Hence, the learned Additional Munsiff No. 2, Jodhpur, dismissed the application for setting aside the ex-parte decree for default of appearance of Ram Chandra, Later on, Ram Chandra applied for restoration of the application for setting aside the ex-parte decree which had been dismissed for default. It was alleged in the application for restoration that on 10th October, 1975, his counsel Shri Sohan Lal could not attend the court when the case was called on forbearing, as he had gone to village Sanwalata-Khurd, Tehsil Pali, in connection with Navratri Puja. Shri Sohan Laldid not inform Ram Chandra that he would not be available in Jodhpur on 10th October, 1975, and so the latter also could not put in his appearance in the court when the application for setting aside the ex parte decree was taken-up for hearing. The Additional Munsiff No. 2, Jodhpur, restored the application for setting aside the ex-parte decree on payment of costs of Rs. 50/, to Gopal Dass, plaintiff Gopal Dass, has, therefore, challenged the legality of this order in this revision-petition. I have carefully gone through the record and heard Mr, B. K. Moha-nani, learned counsel for the petitioner and Mr. Rewa Chand appearing on behalf of Ram Chandra, con petitioner It has been contended on behalf of the petitioner that the Additional Munsiff No. 2, Jodhpur, committed an error of law in restering the application for setting aside the ex parte-decree, which had been dismissed for default, in exercise of his inherent powers under section 151, Civil Procedure Code. According to Mr. Mohanani, the Additional Munsiff No. 2, could not exercise his inherent power as the order of rejection of the application for setting aside the ex-parte decree was appealable under Order 43 Rule 1 (d) of the Code of Civil Procedure and Ram Chandra did not chase to avail of this right of appeal provided by the statute. In support of his above contention, Mr. B. K. Mohanani relied upon Arjun Singh vs. Mohindra Kumar (1), Gopi Chand vs. Meena Lal (2), Suranjan vs. Malati (3), Doma Choudbary vs. Ram Naresh Lal (4) Madan Lal vs. T. N Bank Ltd. (5) and Ratindra Nath vs. Jyoti Bikash (6 ). Mr. Rewa Chand appearing on behalf of Ram Chandra, non-petitioner, on the other hand, contended that there is no express provision in the Code of Civil Procedure for restoration of an application for setting aside an ex parte decree, which has been dismissed for default, and, so the Additional Munsiff No 2,jcdhpur, was not wrong in having recourse to his inherent powers in this case for restoring the application for setting aside the ex parte decree- In support of bis above contention he referred me to a Division Bench decision of this Court in Abhey Singh vs. State (7 ). | I have given my anxious consideration to the rival contentions. It is an established principle that where express provisions are made in the Code of Civil Procedure to govern a particular situation, such provision cannot be overriden or rendered nugatory by having recourse to the inherent powers given to the court under section 151, C. P. C. This principle is recognised by almost all the High Courts in India and by the Supreme Court. In this connection, reference may be made to the authority of the Supreme Court Arjun Singh vs. Mohindra Kumar (supra), wherein their Lordships were pleased to make the following observations in this regard in para 19 at page 1003: - "it is common ground that the inherent power of the Court cannot over ride the express provisions of the law. In other word if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implict from the very nature of the provision that it makes for covering the contingencies to which it relates. " But, where there is no provision in the Code of Civil Procedure for restoration of an application for setting aside an ex parte decree, which has been dismissed for default, the courts may have recourse to the inherent powers under section 151, C. P. C. to do substantial justice, provided the other party is well compensated by costs. An application to restore an application for setting aside an ex parte decree, which has been dismissed for default, is not specifically provided in Order IX or in any other Order of the Code of Civil Procedure. Hence, the contention of Mr. B. K. Mohanani that this matter has been specifically dealt with in the Code of Civil Procedure and that the provisions made in the Code would be completely set at naught or rendered nugatory, if the doctrine of inherent powers is introduced in such cases, is wholly untenable. In support of my above view, I may refer to an authority of this Court Abbey Singh vs. State (supra), wherein it was held that in appropriate cases the court can have recourse to its inherent powers given to it by section 151, C. P. C. for restoring an application for setting aside an ex-parte decree which has been itself dismissed for default. The view taken in the said authority was approved of and confirmed in another case in Sohan Lal vs. Devachand (8), wherein Hon'ble I N Modi J. whs delivered the judgment of the Division Bench, observed as follows in para 12: - The first case is Abhey Singh vs. The State 1951 R. L. W. 44= (AIR 1951 Raj. 81 ). This was a case for restoration of an application to set aside an ex-parte decree which application was itself dismissed for default. It was held, after reviewing the case law on the point, that such an application was competent not under O. 9, R. 9, Civil P. C. but under S. 151 No exception can be taked to this decision as there is no provision in the Code for restoration of an application for setting aside on ex-parte decree which has been itself dismissed for default. " In Madanlal vs. T. M. Bank Ltd. (supra) also, the Full Banch of Assam High Court, after taking into account the divergent views on this point observed that in appropriate cases a remedy may be available to the defendant by way of an application under section 151, C. P. C. , to apply for restoration of an application for setting aside an ex parte decree which has been itself dismissed for default in spite of the fact that an appeal lies against the order of dismissal for default of an application for setting aside the ex parte decree under O. 43 Rule 1 (d) of the Code of Civil Procedure. I have therefore, no hesitation in holding that the defendant may apply for restoration of his application under O. IX Rule 13, C. P. C. if it is dismissed for default and the Court may in appropriate cases restore such application by having recourse to its inherent powers under section 151, C. P. C. It was further contended by Mr. B. K. Mohanani that the Additional Munsiff No. 2, Jodhpur, commuted an error in restoring the application for setting aside the ex parte decree on merits The above content on has no force. It appears that the Additional Munsiff No. 2 Jodhpur, has relied upon the affidavit of the Fateh Mal in accepting the application for restoration. Fateh Mal was the clerk of Shri Rewa Chand, learned counsel for Ram Chandra. It is stated in the affidavit by Fatah Mal that Shri Rewa Chand had been undergoing detention under Maintenance of Internal Security Act in those days and in his absence Shri Sohan Lal, Advocate, was looking after his cases. On 10th October, 1975, when the application for setting aside the ex-parte decree was called on for hearing, Shri Sohan Lal, Advocate, was not present in Jodhpur and had gone to Pali in connection with Navratra Puja and so he could not put in his appearance and the application was dismissed for default. It is further slated in the affidavit of Fateh Mal that no information about the date, i. e. 10th October, 1975, next for hearing was given to Ram Chandra by Shri Sohan La]. Gopal Das has not put in any counter-affidavit controverting the facts alleged in the affidavit of Fateh Mal. In my opinion, there was sufficient reasons for Ram Chandra's absence at she hearing. The reason was that he had made all reasonable arrangements for his representation in the court but the learned counsel Shri Ram Chandra appearing on his behalf was detained under the Maintenance of Internal Security Act and Shri Sohan Lal, Advocate, who was looking after Rewa Chand's work during his absence went out of Jodhpur to Pali in connection with Nauratii Puja without giving any intimation of the next date fixed for hearing of the application to him. Ram Chandra, therefore, should not be penalised for his own absence in these circumstances.
(3.) THE result is that the order passed by the Additional Munsiff No. 2, Jodhpur, restoring the application for setting aside the ex parte decree, which had been dismissed for default, does not call for any interference. I accordingly dismiss the revision-petition but without any order as to costs. .;