JUDGMENT
N.C. Mukherji, J.
1. This is an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 374 dated 8th December 1973 and Order No. 375 dated 22nd December 1973 passed by Shri A. N. Mitra, Subordinate Judge. 6th Court at Alipore in Misc. Case No. 22 of 1973.
2. The facts of the case may briefly be stated as follows :–
The opposite parties Nos. 1 to 3 instituted a Title Suit No. 7 of 1964 for partition of accounts against the petitioners and Manki Shaw, since deceased, the mother of the petitioner No. 1 and the opposite parties Nos. 1 and 4. On 12th of June 1973 when the suit was fixed for further hearing, no one appeared on behalf of the plaintiffs and as such the suit was dismissed for default. Thereafter the plaintiffs filed an application under Order 9, Rule 9 of the Code of Civil Procedure read with Order 17, Rule 2 and Section 151 of the Code for setting aside the order of dismissal. On the said application Miscellaneous Case No. 22 of 1973 was started. The petitioners contested the application by filing objection. Evidence was adduced by both the parties. The learned Subordinate Judge after considering the evidence on record and the facts and circumstances of the case found “that the plaintiffs have miserably failed to prove that they had any sufficient cause for preventing them from attending the court when the suit was called on for hearing”. The learned Judge, however, allowed the Miscellaneous Case and restored the suit to file on condition that the petitioners would pay some costs to the opposite parties. The learned Subordinate Judge observed
“But as the hearing of the suit on contest already proceeded to a great length and since, in my opinion, the opposite parties should not feel shy of the disposal of the suit on contest, I, to meet the ends of justice, give an opportunity to the petitioners on terms as hereunder, on the points being thus disposed of.” Being aggrieved by the aforesaid order, the defendants have come up before this Court.
3. Mr. Radhakanta Bhattacharya, learned Advocate appearing on behalf of the petitioners, submits that when the plaintiffs filed an application under Order 9. Rule 9 and when the case as made out by the plaintiffs was completely disbelieved by the learned Judge, the learned Judge acted without jurisdiction to pass any order under Section 151 of the Code-Mr. Bhattacharya adds that though the learned Judge has not said that he allowed the application under Section 151 of the Code, it must be presumed that he did so because he disbelieved the plaintiffs’ case as made out in the application under Order 9, Rule 9. Mr. Bhattacharya submits that there being a specific provision in the Code for seeking relief by a party whose suit has been dismissed for default, the learned Court was in error in exercising its jurisdiction under Section 151 of the Code. In support of his contention Mr. Bhattacharjee first refers to a decision reported in 34 Cal WN 222 = (AIR 1930 Cal 387) (Haridas Mukherjee v. Bijay Krishna Das). In this case an application was filed under Order 9, Rule 13 of the Code for setting aside an ex parte decree. The learned Munsif held that no sufficient cause was shown for the non-appearance of the defendant on the date of hearing, but even then he restored the suit on certain terms. It was held by the Division Bench of this Court “That in making the order in the circumstances of the case the Munsif acted without jurisdiction and it would not have been open to him to apply the provisions of Section 151 of the Code where there is a specific provision in the Code applicable to the case.”
4. Mr. Bhattacharya next refers to another Bench decision reported in 34 Cal WN 419 = (AIR 1930 Cal 488) (K.B. Dutt v. Shamsuddin Shah). In this case an ex parte decree was set aside by the Court on an application under Rule 13, Order 9 and the Court also invoked the inherent jurisdiction under Section 151 of the Code. It was held that
“It was an instance of a decree being set aside irregularly and the lower court purported to exercise powers which it did not possess and the order was liable tc be set aside.” It has been Laid down in this case that
“Rule 13. Order 9 deals not with a person who has no excuse for not being present or who as a reason for not having all his witnesses asks for an adjournment for the purpose of calling further evidence and such adjournment being refused, takes no further part in the proceedings.”
5. Mr. Bhattacharya next relies on a decision (Tulsiram Bhagwandas v. Sitaram Srigopal). It has been held in this case by Chakraborty, C. J. and Lahiri, J. at p. 309 (of Cal WN) = (at p. 394 of AIR) that
“It was contended on behalf of the respondent in the second place that even assuming that Order 17, Rule 2 read with Order 9, Rule 8 did not apply and consequently Order 9. Rule 9 also would not, the learned Judge had nevertheless power to make the order he did under Section 151 of the Code. I do not consider that contention to be tenable. The essence of the Code, as is well known, is to be exhaustive so far as it goes and as respects matters for which the Code expressly provides, there is no room for the exercise of any additional jurisdiction under Section 151.”
Their Lordships relied on the well known case of Hookam Chand Singh v. Kamal-anand Singh, (1906) ILR 33 Cal 327; 34 Cal WN 222 = (AIR 1930 Cal 387); 34 Cal WN 419 = (AIR 1930 Cal 488) and on other cases.
6. The last case referred to by Mr. Bhattacharya has been reported in (1962) 66 Cal WN 810 (Gour Mohan Sen v. Ganesh Chandra Sen). This is also a Bench decision and in this case their Lordships relied on 34 Cal WN 222 = (AIR 1930 Cal 387); 34 Cal WN 419 = (AIR 1930 Cal 488) and and held
“this Court has in the past clearly expressed itself as to the scope and contents of Section 151. That section, it has been held, cannot be invoked to override the specific provisions of law. The question has not infrequently been raised in connection with application under Order 9, Rule 13 where it is found that no sufficient cause exists for non-appearance on a date of hearing involving the consequence that the suit is decreed ex parte; such ex parte order cannot be set aside by resorting to Section 151.”
7. Mr. Saktinath Mukheriee, learned Advocate appearing on behalf of the opposite parties, in the first place submits that the Court allowed the application under Order 9, Rule 9 for ends of justice considering the fact that the suit progressed to a great extent and evidence was also adduced. Mr. Mukher-jee also reminds us that the suit was one for partition and if the plaintiffs’ application for restoration is dismissed, there will be no bar for the plaintiffs to institute a fresh suit any day. Thus, in order to prevent multiplicity of proceedings the learned Judge was quite right in exercising his jurisdiction under Section 151 of the Code and that being so, this Court would refuse to interfere with the said order. In support of his contention Mr. Mukherjee first refers to a decision reported in AIR 1919 Cal 979 (2) (F.P. Nalladaroo & Co. v. Hari Kissen Rathi). In this case on an appeal against an order of the primary Court refusing to restore a suit dismissed for default the appellate court restored the suit, although it found that the plaintiff could not show sufficient cause for his non-appearance within meaning of Order 9, Rule 9. It was held that the order of the appellate court was not without jurisdiction. We find that this judgment is a very short one consisting of 12 lines. Their Lordships simply relied on two decisions reported in (1912) 34 AH 426 (Lalta Prasad v. Ram Karan) and (1913) ILR 35 All 331 (PC) (Debi Baksh Singh v. Habib Shah) and on a consideration of those decisions expressed the opinion as stated above. Mr. Mukherjee places before us the two Allahabad decisions The facts of the case reported in (1913) ILR 35 All 331 (PC) are completely different. Here, the plaintiffs suit was dismissed for non-appearance. Dismissal was at the time when it was found that the plaintiff was dead. In such circumstances it was held that Section 151 was applicable. The facts of the case reported in (1912) ILR 34 All 426 are also different and as such the principle laid down there does not apply in the pie-sent case.
8. Mr. Mukherjee last refers to a decision reported in 36 Cal WN 869 –(AIR 1933 Cal 20) (Sheikh Hari v. Sm. Diljan Bibi). Jn this case a decree passed by an Additional District Judge provided that ad valorem court-fees and the costs incurred by the opposite party should be paid within a certain time and further provided that in default of the pay ment of the costs only within the time the suit should stand dismissed and on the application of the party concerned, the succesor-in-office of the Judge who passed the order extended the time. It was held that so far as the payment of court-fee was concerned, the succeeding Additional District Judge had jurisdiction to extend the time. But so far as the payment of the costs was concerned he had no jurisdiction. But, having regard to the facts of the case, the High Court in its discretion declined to interfere. This case also, in our opinion, does not help the plaintiffs. There being clear decisions of our High Court on the point whether in an application under Order 9, Rule 9 the Court can exercise its inherent jurisdiction under Section 151, we are of the opinion that the order passed by the learned Subordinate Judge cannot be upheld.
9. In the result, the application succeeds and the Rule is made absolute. There will be no order as to costs.
B.C. Ray, J.
10. I agree.
