ORDER
1. The above civil revision petition has been directed against the order of the learned District Munsif-cum-Judicial Magistrate, Kattumannarkoil dated 13.11.2000 in I.A.No.304 of 2000 in O.S.No.18 of 2000 wherein the learned Judge set aside the ex parte order dated 20.12.99 passed against the third defendant.
2. The petitioner herein instituted a civil suit in O.S.No.1083 of 88 on the file of the District Munsif, Chidambaram against the respondent herein and
3 others for partition and separate possession of his 1/3rd share in the suit properties. Except third defendant, other defendants entered appearance through their counsel and filed written statement. Since the third defendant was said to be residing at Singapore, summons were taken for his Singapore address. Since summons were returned unserved because the third defendant was not at Singapore, at the request of the plaintiff, the learned District Munsif, Chidambaram granted service of notice of publication in Tamil Daily; accordingly paper publication was effected in ‘Dina Malar’, Cuddalore edition having circulation where the suit properties are situated and also at Pondicherry. Since third defendant did not appear, he was set ex parte on 20.12.99. After the formation of the District Munsif-cum-Judicial Magistrate’s Court at Kattumannarkoil, on administrative grounds, the suit was transferred to that court from the District Munsif s Court, Chidambaram and re-numbered as O.S.No.18 of 2000. According to the petitioner/plaintiff, since the third defendant has no objection for partition and separate possession of his 1/3rd share in the suit properties, he has not chosen to enter appearance and file written statement before the Court below. The suit was proceeded with trial and was posted for arguments. It is further seen that the counsel appearing for the plaintiff argued the matter and the case was adjourned for the defendants’ argument. When the matter was posted for judgment on 28.1.2000, the first defendant/respondent herein filed an application in I. A. No. 304 of 2000 under Section 151, C.P.C. To set aside the ex parte order passed against the third defendant on 20.12.99 on the ground that the publication of the third defendant was effected only in India and not in Singapore and consequently the said order is bad. The petitioner herein resisted the said application contending inter alia that the ex parte order can be set aside only at the instance of the third defendant against whom the order was passed and not at the instance of the first defendant. He also contended that the third defendant has no objection for partition of the suit property and only to protract the proceedings the 1st defendant filed the present application. The learned District Munsif on an erroneous view allowed the application and set aside the ex parte order passed against the third defendant on 20.12.99 and directed him to take fresh summons for 3rd defendant for his Singapore address. Hence the plaintiff has filed the present revision before this Court.
3. Pursuant to the notice ordered by this Court, respondent is represented by a counsel.
4. Heard the learned counsel for the petitioner as well as respondent.
5. The point for consideration is (i) Whether the petition filed by the first defendant for setting aside the ex parte order passed against the third 4 defendant on 20.12.99 is maintainable? and (ii) When the substantive provision, namely, Order 9, Rule 7 and 13 is available whether the Court below is right in setting aside the ex parte order passed against the third defendant on 20.12.99 by exercising inherent power under Section 151 of the Code of Civil Procedure?
6. There is no dispute that initially the petitioner herein filed a suit in O.S.No.1083 of 1988 before the District Munsif, Chidambaram against the respondent and 3 others for partition and separate possession of his 1/3rd share in the suit properties. It is also not disputed that except the third defendant, the other defendants entered appearance through their counsel and filed their written statement. Since third defendant is residing at Singapore even as per the address given by the plaintiff, according to the petitioner, necessary steps have been taken to serve suit summons to the third defendant at Singapore. It is further seen that since the summons could not be served on the third defendant at Singapore address, after paper publication in the locality in which the property situate, the 3rd defendant was set ex parte, and an order to that effect was passed against him on 20.12.99. After formation of the District Munsif-cum-Judicial Magistrate’s Court at Kattumannarkoil, on administrative grounds, the suit was transferred to that court from the District Munsif s Court, Chidambaram and re-numbered as O.S. No.18 of 2000. It is further seen from the particulars furnished that after completion of evidence, the suit has been posted for arguments. It is stated that the plaintiff’s counsel concluded his argument and at that stage, the counsel for the first defendant filed a memo and requested for adjournment. It is further seen that when the matter was posted for judgment on 28.1.2000, the present application, namely, LA. No.304 of 2000 has been filed by the first defendant under Section 151 of the Code of Civil Procedure to set aside the ex parte order passed against the third defendant on 20.12.99. At this moment it is to be noted that the concerned person, namely, third defendant has not chosen to file any petition to set aside the order of ex parte passed on 20.12.99. The present application has been filed only by the first defendant under Section 151, C.P.C.
7. If an ex parte order was passed against any one of the defendants, it is always open to him to file a petition to set aside the ex parte order under Order 9, Rule 7 C.P.C. and if there is an ex parte decree, he is to file a petition under Order 9, Rule 13, C.P.C. This aspect has not been disputed. I have already referred to that the petitioner/plaintiff has laid the suit for partition and separate possession of his 1/3rd share in the suit properties in 1988. No doubt, according to the first defendant, the suit summons was not properly served on the third defendant who is said to have been residing at Singapore. However, this aspect was considered and on the basis of the returned summons and after due publication in local Tamil daily, an order of ex parte was passed against the third defendant on 20.12.99. Even if it is admitted that there is error in the procedure followed, it is for the affected person, namely, third defendant to file appropriate petition under Order 9, Rule 7 or 13 to set aside the ex parte order/decree. In other words, if the third defendant is really aggrieved, he can file a petition to set aside the ex parte order/decree by invoking the substantive provision referred above. Admittedly, the third defendant has not chosen to file any petition till date. The present application has been filed only by the first defendant. In this regard, learned counsel appearing for the petitioner
would contend that the first defendant has no locus standi to file the present petition to set aside the ex parte order passed against the third defendant.
8. There is no dispute that Order 9, Rule 13, C.P.C., enables the third defendant to file a petition if he is really aggrieved by the claim of the plaintiff for partition to file appropriate petition to set aside the ex parte order passed against him on 20.12.99. Order 9, Rule 13, C.P.C. reads thus:-
“Order 9, Rule 13, C.P.C. Selling aside decree ex parte against defendant,- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.”
On the very reading of the above Rule, it is clear that it is only the defendant in an action who can move an application under the provisions of law. Though the first defendant has interest in the suit, he is not entitled to “invoke, this Rule. In Santosh v. Teja Singh, , a learned Single Judge has held that even a person who is formally a party but against whom nothing is said in the operative portion of the decree or who has been expressly exempted from a decree cannot apply under this Rule to set aside an ex parte decree. When there is a specific provision for setting aside the ex parte order/decree, at the instance of the person concerned, as rightly contended, the first defendant has no locus standi to file a petition under Section 151, C.P.C. praying the Court to rectify the mistake of the order setting the third defendant ex parte
9. In Arjun Singh v. Mohindra Kumar, , similar question has been considered by the Supreme Court. In Para 19 it has been held as follows:-
Para 19……. For the purpose of the discussion of the question in the
context of the relevant provisions of the Code, it is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be predicated that a Court has the inherent jurisdiction which is saved by Section 151 of the Civil Procedure Code. It is sufficient if we proceed on the accepted and admitted limitation to the existence of such a jurisdiction. It is common ground that the inherent power of the Court. cannot override the express provisions of the law. In other words 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
implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates….”
10. In Ramkarandas v. Bhagwandas, , regarding exercise of inherent power under Section 151, C.P.C. Their Lordships have held thus:-(para 6)
“…The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure”. This is a well recognised principle., Rule 4 of Order 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under Order 37 and hence if a case does not come within the provisions of that rule., there is no scope to resort to Section 151 for setting aside such a decree. We, therefore, agree with the High Court that the appellate bench of (he Court of Small Causes was in error in setting aside the ex parte decree in exercise of powers under Section 151…”
11. In E.I.D. Parry Ltd. v. Agro Sales and Service, , the Full Bench of the Orissa High Court, after referring Order 9, Rule 17 and
13 which gives power to Court to set aside a decree and there is no scope to refer to Section 151 for setting aside such decree, has held that the principles that once statutory provisions 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 appear to have been well recognised.
12. In Meenakshisundaram Chettiar v. Venkatachalam Chettiar, , a Division Bench of this Court, after pointing out that when there is a specific provision in Order 6, Rule 17 for amendment of plaint, recourse cannot be had to Section 151, C.P.C. and after considering the scope of section 151, particularly in the light of existence of specific provision for amendment of pleadings, has held as follows:- (Para 12)
“Para 12…….Therefore, it is not, possible to agree with the learned
counsel for the petitioner that resort can be had to Section 151 of the Code if a case is not covered by Order 6 Rule 17 of the Code for amendment of the plaint. We agree with the learned counsel for the respondent and hold that resort cannot be had to Section 151 where the case is not covered by the specific provisions made in Order 6, Rule 17 of the Code for amendment of (he pleadings. Rule 17 is in Order 6 dealing with pleadings generally.”
13. It is clear from the above discussion that Section 151 saves the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. However, this section by itself gives no right to a party nor does it confer any jurisdiction. It is well settled that where there is a specific provision of law, the provisions of Section 151 cannot be invoked. For example, where an appeal has been filed in the name of a dead person, the appellate court has no inherent power to permit his legal representatives to be substituted in his place as appellants.
Section 151, C.P.C. may be availed of by a Court read with some other provision of law or where there is no provision of law to cover a contingency. When there is a special provision in the Code of Civil Procedure for setting aside an ex parte order/decree recourse to the inherent powers under Section 151 is not justified. It is further clear that the inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. To put it clear, the Court cannot make use of the special provision of Section 151 of the Code of Civil Procedure where a party had his remedy provided elsewhere in the Code. In the light of the fact that even as early as on 20.12.99 an order has been passed setting the third defendant ex parte and in view of the existence of specific provision in the Code, it explicitly clear that Section 151 of the Code is not invokable and the contrary view taken by the Court below by invoking Section 151, C.P.C. cannot be sustained. 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. This is clear from the plethora of decisions of the Supreme Court as well as other High Courts.
14. Under these circumstances, the impugned order of the learned District Munsif-cum-Judicial Magistrate, Kattumannarkoil in I.A.No.304 of 2000 in O.S.No.18 of 2000, dated 13.11.2000 is set aside and the civil revision petition is allowed. No costs.
15. It is made clear that the present order will not be a bar for the third defendant from questioning the ex parte order passed against him on 20.12,99 in the manner known to law. Inasmuch as the petitioner/plaintiff has instituted the suit in the year 1988 at, the first instance before the District Munsif s Court, Chidambaram and on administrative grounds the suit was transferred to the Court of District Munsif-cum-Judicial Magistrate at Kattumannarkoil and re-numbered as O.S.No.18 of 2000, the learned District Munsif is directed to dispose of the suit expeditiously. The C.M.P. is closed.