GH AHMAD RATHER Vs. J&K BANK LTD , BRANCH OFFICE, LANGATE

JUDGEMENT

(1.) A suit for recovery of debt filed in the Court of learned District Judge Kupwara by the J&K Bank Ltd. Langate Branch, plaintiff (respondent therein) against the defendants -borrowers (petitioners herein) was withdrawn by the counsel representing the bank on a mistaken belief that the debt claimed had become payable by the Central Government in pursuance of a scheme. The court, believing the statement, dismissed the suit as withdrawn. The said dismissal was sought to be set aside on the sole ground that the statement made by counsel was not well Mounded on facts, for, the amount exceeds the limit prescribed under the scheme. The respondents were put on notice and after hearing LC for the parties, the suit was restored by order dated 08/04/1999 which is questioned on the ground which is reproduced hereunder: "That the said order does not lie under Order 9 of the C.P.C., because it was not a dismissal for non -appearance of the respondents and as such the order is violative to the said norms and rules laid down in the C.P.C." This ground of challenge has been dealt with by the Ld. District Judge in following words: "I am aware of the fact that the present petition does not lie under order 9 of C.P.C..., I therefore, in exercise of powers vested in me under Section 151 C.P.C., set aside the dismissal of the suit... let the suit be restored to its original number......."

(2.) IT is manifest from the judgment impugned that the suit has been restored by exercising the powers under Section 151 Civil Procedure Code (for short C.P.C) and not under Order 9 C.P.C. Obviously, the ground of challenge is bereft of justification and fails.

(3.) A question may arise, although not taken in this revision petition, as to whether inherent jurisdiction could be exercised for restoration of the suit. The answer is bound to be in the affirmative because there is not specific provision in the C.P.C. which could be invoked to seek the restoration of the suit when dismissed in the circumstances of this case. I may hasten to add that power is not to be exercised because it is available but it has to be exercised only when exercise becomes necessary to do justice to the parties.