ORDER
1. This is an application for recalling of the order dated 9th June, 1994 passed by me in C.O. 268/94. After the ex parte order was passed an application for recalling of the said order was filed on 10-6-1994 which was dismissed on 16-8-1994 on technical ground that the affidavit was sworn by tadbirkar. Liberty was, however, given for filing fresh affidavit according to law. In terms of the aforesaid order a fresh application for recalling was filed on 23-8-1994 on
the ground that the learned Advocate for the opposite party was engaged in another Court at the time when the revisional application was allowed.
2. A preliminary objection was taken by the opposite parties/plaintiffs that there is no scope for recalling the ex parte order as that order was passed on merits. Opposite party No. 4 also supported the contention of the other opposite parties.
3. The short point for consideration in this recalling application accordingly is whether such application is at all maintainable and if it is so whether there are sufficient grounds for recalling the said order.
4. Heard the submissions of Mr. S. P. Roy Chowdhury for the petitioner and Mr. M.P. Banerjee for the opposite parties and Mr. T.K. Sengupta for the opposite party No. 4.
5. In support of his contention Mr. Banerjec referred to the case reported in AIR 1945 Mad 103 and AIR 1967 J & K 93. In these two cases the Court was invited to consider the scope of an application arising out of dismissal of a revisional application on default. In the Madras case reported in AIR 1945 Mad 103 it was held that the Court has no power to restore the revisional application after its dismissal. In the latter case reported in AIR 1967 J & K 93 a distinction was made between the default simpliciter and default on merit and it was held that in the former case restoration petition shall lie but no Such restoration is permissible in the latter case. Mr. Banerjee accordingly submitted that the application should be dismissed.
6. Mr. Roy Chowdhury, learned Advocate for the petitioner referred to the case where it was held that misdemeanour or laches on the pan of the counsel for his failure to attend the hearing shall be a good ground for recalling the order.
7. In the instant case the revisional application was allowed ex parte on merit upon hearing the submissions of the learned Advocate for the opposite parties. There being no
dismissal for default in the instant case the decision referred to by Mr. Banerjee cannot be applicable to the facts of the instant case.
8. Under Section 115 of the Code of Civil Procedure if the subordinate Court appears to have exercised (a) jurisdiction not vested in it by law, or failed to exercise the jurisdiction so vested, or (c) acted illegally or with material irregularity the exercise of its jurisdiction the High Court may make such order in the case as it thinks fit. There cannot be any doubt that any order passed by any Court of dismissal or otherwise is an order ‘as it thinks fit’.
9. An order of dismissal for default may be a routine order but no Court can pass such order unless it thinks the same as fit. No distinction between an order of default simpliciter and order oh merit has been made anywhere in Section 115. The High Court being a Court of Civil jurisdiction the provisions of Section 141 that procedure for suits shall be followed in all proceedings applies to revisional proceedings. Provisions of Order 9 of the Code of Civil Procedure shall accordingly be invoked in such circumstances.
10. It is also true that there is no express provision in the Civil Procedure Code for recalling the order under Section 115, C.P.C. and in such circumstances the Court has to pass the order according to justice, equity and good conscience, specially in India, where every Court is a Court of equity as well as of law. In this connection reference may be made to the case of Narsingh Das v. Mangal Dubey, (1883) ILR 5 All 163 (FB) where it was held that “The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle, prohibitions cannot be presumed.”
11. Section 151 of the Code of Civil Procedure is an enabling section. It was not possible for the Legislature to cover each and every case which may come up before a Court
for consideration and it is for that purpose
to enable the Court to cover such cases that this enabling provisions was put in the Code. There may be cases where the ex parte disposal of an application may result in substantial injustice to a party. The Court in such circumstances should not fail to exercise its power to restore such case to their original position and then dispose the same according to merits upon hearing both sides.
12. It is true that while disposing the revisional application the Court took into consideration the submission made by the learned counsel for the opposite parties/ plaintiffs but in doing so the Court had not the advantage of hearing the submission of the other side.
13. In the instant case it has been alleged by the petitioner that his counsel was engaged in another Court and accordingly it was not possible to attend the Court at the time of hearing of the application. It will appear from the affidavit filed by the opposite parties that on 9-6-94 after the ex parte order was passed the learned Advocate for the petitioner came to the Court and affirmed an application for recalling the said order on the ground that, the learned counsel was engaged in another Court. Since no party can suffer for misdemeanour or laches of his counsel, as laid down in the decision , I think the substantial injustice would be caused to the petitioner/defendant if they are not allowed to make their submissions in the revisional application.
14. In the aforesaid view of the matter I am of the opinion the recalling application should be allowed.
15. The application for recalling the order dated 23-8-94 is accordingly allowed and the ex parte order dated 9-6-94 is accordingly recalled and the revisional application is restored to file.
16. Let the revisional application be now sent to the appropriate Court for passing necessary orders.
17. Application allowed.