TMI Blog1946 (8) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... d an affidavit to that effect. Now the defendant (sic) cannot give evidence that 'the plaintiff has no account books. (The word 'defendant' in the order-sheet is clearly a slip for 'plaintiff.') It seems that the plaintiff entered the witness-box and wanted to depose on oath that he had no account books. The Court would not allow him to do this because, in its view, he had not complied with the provisions of the Code of Civil Procedure and had not filed an affidavit as the Code requires. The order was then signed. 2. Later in the day, after the order had been signed (the time of the signing of the order is given as 12-12 P.M.) the plaintiff's counsel made two applications asking that the order be set aside. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court. This was stated in emphatic terms by me in a Division Bench case, (which in any event binds me), reported in Sheolal v. Jugal Kishore I stated there, (the Honourable the Chief justice concurred): ... what we desire most emphatically to emphasise is that not only must the power so conferred be sparingly used but that Courts have no power whatever to resort to Section 151, when the matter is expressly dealt with in the Code, and that if they do so they act without jurisdiction and their orders are revisable. 5. Much the same principle is laid down by their Lordships of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, a case under the Limitation Act. The proposition contended for before their Lordships was that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple overrides even the principles to which I have referred to above. In Ramchandra v. Bhiniji Civil Revn. No. 34 of 1945, D/-7-1-1946 it seems that the Court had informed the pleader that it would deal with the application for review presented by him after it had decided another matter. It completely forgot its promise it had made to the pleader and dismissed the application in default. That of course, would at once attract the provisions of Section 151, Civil P.C. The party was in no way at fault. He made an application and had a right to have it decided. Instead of hearing it, as the Court was bound to do, the Court through a mistake of its own, forgot that it had postponed the hearing and proceeded to dismiss the application in default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court passed orders under a mistaken belief that both parties had been fully heard whereas in fact it turned out that that was not the case. Neither side was at fault there and the orders were passed owing to misapprehension. 10. The lower Court relies on Raghunath v. Khatum Bi but the learned Judge has omitted to notice the important qualification contained in the sentence: ......though it has no such jurisdiction in respect of a suit dismissed for default. What Macnair J. held in that case was that a Court has inherent powers to review or modify its orders in respect of a matter while it is still seized of the case and retains jurisdiction. Once, however, the case has been dismissed then the jurisdiction of the Judge ceases an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument was considered in the previous order and rejected. A deliberate decision was thus reached and having been reached, it could not be reviewed. 13. It was argued that in point of fact there was an error because the Code does not require an affidavit in cases where there are no books. The affidavit is only required where the party is in possession and control of the documents of which discovery is sought. Even if that had been so it would have not afforded a ground for review, because it would at most have amounted to an error of law, and an error of law is not a ground on which a Court can review its decision. But in point of fact the argument itself is incorrect. Order 11, Rule 13 requires an affidavit and Appendix C No. 5 shows th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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