RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

A Rough Draft submitted for the Project in the

B.A. LLB (Hons.) (VI Semester) Course in Civil Procedure Code.

On the topic- Dismissal of suit for default

SUBMITTED BY SUBMITTED TO

Prashant Ranjan Ms. SHAKUNTALA SANGAM

Roll No. 90 Faculty of Law
B.A. LLB (Hons.) Dr. RMLNLU
VI Sem. Sec. B.
Introduction:

Order 9, Rule 3, Civil Procedure Code reads as under: Where neither party appears,

suit to be dismissed. Whether neither party appears when the suit is called on for hearing, the

Court, may make an order that the suit be dismissed. This provision of law mandates that the suit

should have been posted for hearing. The question is what does the word 'hearing' mean?

In Black's Law Dictionary, the meaning of word 'hearing' is given as under: A

judicial session, usu., open to the public, held for the purpose of deciding issues of fact or of law,

sometimes with witnesses testifying. In New Webster's Dictionary, the meaning of word 'hearing'

is given as under: hearing ... an opportunity to be heard -- Law, preliminary investigation of a

case to determine its validity; a judicial investigation before a Court. In Oxford Dictionary, the

meaning of word 'hearing' is given as under: hearing...an opportunity to state one's case (give

them a fair hearing), the listening to evidence and pleadings in a law Court.

The "hearing" means a positive hearing i.e. parties are to be heard or listened but

when a party has no notice of posting of the case then how it can be said that case was adjourned

and posted for hearing. The hearing means recording of evidence, taking steps for taking the case

to its logical conclusion, examination of questions involved in the suit, Considering the

arguments.

A. Dismissal of suit for default

While going through the provisions of Order 9, CPC read with Orders 14 and 17,

CPC, the essential pre-requisite for holding whether the case was posted for hearing is whether

the Judge has to apply mind to some aspect of the case. If in a routine manner the Court passes

interim order and has adjourned the case without posting the case for hearing it cannot be said
that suit was posted for hearing. Rule 4 of Order 9 of the Code, provides that where a suit is

dismissed under Rule 3, the plaintiff may subject to the law of limitation bring a fresh suit; or he

may apply for an order to set the dismissal aside. Rule 3 of Order 9 prescribes that where neither

party appears when the suit is called on for hearing the Court may make an order that the suit be

dismissed.1

An order of dismissal of a suit for default of appearance is made under Rules 38

and 12 of Order 9, Civil Procedure Code. Rule 3 provides that if neither party appears when the

suit is called on for hearing, the Court may make an order that the suit be dismissed. Rule 4 of

the said order empowers the plaintiff in such case to apply to have the dismissal set aside. Rule 8

provides that where the defendant appears, but the plaintiff does not appear, the Court shall make

an order that the suit be dismissed, and Rule 9 empowers the plaintiff in such a case to apply to

have the order of dismissal set aside. Rule 12 provides that where a plaintiff or defendant who

has been ordered to appear in person or show sufficient cause to the satisfaction of the Court,

fails so to appear, he shall be subject to all the provisions of the previous rules applicable to

plaintiffs and defendants respectively. Rules 8 and 12 are not applicable to the present case as

both parties were absent. The rule which appears to be applicable in this case is Rule 3 which is

to the following effect: Where neither party appears when the suit is called on for hearing, the

Court may make an order that the suit be dismissed.2

This rule contemplates a default by the plaintiff when the suit is called on for

hearing. The suit could only be called on for hearing under this rule when parties have notice of

the hearing. In the present case admittedly parties were not served, as such it cannot be said that

the plaintiff had notice of the hearing.

1
Mehjabeen Simon And Anr. vs Fayaz Ahmad Simon And Ors. AIR 2006 J K 105
2
Mehjabeen Simon And Anr. vs Fayaz Ahmad Simon And Ors. AIR 2006 J K 105
 B. Dismissal and inherent power of court:

If we take dictionary meaning of the word inherent then it alludes its meaning as

Natural, existing and inseparable from something, a permanent attribute or quality, an

essential element, something intrinsic or essential, vested in or attached to a person or office as a

right of privilege.3 Now, coming to the meaning of the word power, the meaning drawn out in

the case of Seth Lookasan Sethiya v. Ivan E John4, is that power means authority, whether any

discretion is left or not and whether any direction is imperative or directory relates to the manner

and exercise of the power and not to the basic ingredient of the authority itself. Without

authority, a valid act cannot be done irrespective of whether the act is discretionary on the part of

the doer of the act, or he is bound to do it. In both situations, he must have authority. Thus, if the

connotation of the both the words are clubbed together it elicits that inherent power is the

natural or essential power conferred upon irrespective of any conferment of discretion, meaning

thereby if this connotation is read out in terms of section 151 it comes to it that as such there is

no conferment of power on court but there is declaration that inherent power of the court exists

and this power is not limited or affected by anything in the code. Thus, if the connotation of the

both the words are clubbed together it elicits that inherent power is the natural or essential

power conferred upon irrespective of any conferment of discretion, meaning thereby if this

connotation is read out in terms of section 151 it comes to it that as such there is no conferment

of power on court but there is declaration that inherent power of the court exists and this power is

not limited or affected by anything in the code.

C. Nature and scope of section 151:

3
Concise Oxford English Dictionary (2002); Chambers 20th Century Dictionary (1992) at pg 647; Websters
Encyclopedic Unabridged Dictionary (1994) at pg 732
4
AIR 1975 ALL 113 at pg 121; P Ramanatha Aiyar, Concise Law Dictionary, 3rd Edn, 2009, Lexis Nexis
Butterworths Wadhwa, Nagpur.
 The marginal note of section 1515, itself signifies that by engrafting the

provisions of section 151 nothing new has been introduced and in contra to that the section has

just confirmed the pre-existing powers to act ex debito justitiae6. The pre-existing power over

here means the power inherent in the court by virtue of the duty to do justice between the parties

before it. Even otherwise the court is a court of law and equity and even when equity and justice

demands the court can pass such orders as may be necessary to do complete justice in absentia of

express provisions to do so. Meaning thereby the power has already been vested with the courts

and as such nothing new has been conferred upon the courts by virtue of section 151 besides

expressly saving the inherent powers of the court.

With regard to nature of this section the issue was whether the powers so

expressed under section 151 are in addition or complementary to powers conferred by the code

and whether they can override the other provisions of the code? In answer to this issue the

Supreme Court of India has by catena of decisions on this point held that the powers are in

addition and complementary to the powers conferred by this code and by no stretch of

imagination it can be said that these powers can override the provisions of the code 7. In other

words section 151 is intended to supplement the other provisions of code and not to evade or

ignore them or to invent a new procedure8 and thus inherent power cannot prevail over statute.

Moreover, the only thing which needs to be kept in mind while exercising the inherent powers is

that they when exercised do not come in conflict with what has been expressly provided for or

those exhaustively covering a particular topic or against the intention of the legislature.
5
Saving of inherent powers of court
6
See P Ramanatha Aiyar, concise law dictionary, 3rd Edn, reprint 2009, Lexis Nexis for meaning; also see AIR
1974 Pat 7; AIR 1976 ALL 150.
7
Manoharlal Chopra v. Seth Hiaralal, AIR 1962 SC 527; Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993; Ram
Chand & Sons v. Kanhayalal, AIR 1966 SC 1899.
8
Nandi and Sengupta Justice, the Code of Civil Procedure, 1908, 3rd Edn, Vol.1, 2009, Kamal Law House at pg
563; also see Bhoj Raj v. Darsu, AIR 1959 MP 52, 57.
 The next issue which needs to be addressed under the caption of scope is that

whether the power conferred by section 151 is a blanket and a plenary one?

In answer to this issue one thing is made clear that the exercising of these powers

are subject to certain restrictions as mentioned in above Paras, secondly, this issue can be

answered by addressing the points to be kept in mind while granting relief U/s 151 and they are

that firstly, these powers are in addition and complementary to the powers expressly conferred,

secondly, they are not meant to enable the courts to create rights in parties but to invoke as and

when justice demands9, thirdly, and lastly the most important point to be remembered always is

to look into the contents of the application and the prayer made on such basis and to determine

whether the applicant is entitled for reliefs prayed in the facts and circumstances of the case?

Thus, these above mentioned points are by and large used as guiding factors for determination of

an application U/s 151 of the code. Notwithstanding with these aforesaid points one thing is

made clear that even if all the above issues/factors are answered in negative even then the court

can grant the relief prayed for if the ends of justice and equity demands because the powers

vested U/s 151 are of wide scope and ambit10.

D. Inherent Power When Invoked:

1. Where the cause of action not barred on the day on which restoration application was filed,

the suit is liable to be restored11.

9
Shantaram Tukaram Patil v. Dagubai Tukaram, AIR 1987 Bom 182
10
Mam Raj v. Sabiri devi, AIR 1999 P&H 96
11
C V Varghese v. Devi Academy, AIR 1999 Ker 185
2. It is true that O.39 R.2A of the code deals with consequences of disobedience or breach of

injunction, but that does not mean that the court below was not competent to provide police

protection in exercise of its inherent powers U/s 151 of the code. Civil revision petition

dismissed12.

3. While exercising inherent powers the court can expunge defamatory remarks in the will. It

has been well settled by now because if the person alleged to be defamed will be left with no

recourse for redressal as person who had made the libelous or scandalous or defamatory

statement has since died and no civil or criminal proceedings can be initiated against such a

person. Also the law does not perceive a situation where a person is rendered remediless13.

4. Power of restitution not confined to section 144, court can order restitution in exercise of its

inherent powers14.

5. Defendants forcibly dispossessed plaintiff in violation of interim injunction, passing of order

of mandatory injunction under sec.151 for restoration of possession to the plaintiff proper15.

6. Suits or proceedings having different causes of action can be consolidated under inherent

powers without consent of parties, question of limitation remained unaffected16.

7. Court can set aside its order of rejection of plaint17 and in case it is rejected on the ground of

failure to pay the deficit court fee the court can restore the plaint u/s 15118.

12
SK Yousuf & others v. Shaik Madhar Saheb, AIR 2003 AP 44; also see Basus, The Code of Civil procedure, 10th
Edn, Vol.II, 2007, Ashoka Law House, New Delhi
13
HPS Chawla v. Dr. N.P.S. Chawla and others, AIR 2006 Del 53
14
K N Krishnappa v. T R G Setty, AIR 1997 Kant 152; see Nandi and Sengupta Justice, the Code of Civil
Procedure, 1908, 3rd Edn, Vol.1, 2009, Kamal Law House at pg 564
15
AIR 1998 MP 310; Ibid
16
AIR 1999 Guj 118, ibid at pg 565
17
Damodar v. Aditya, AIR 1972 Pat 289, ibid at pg 571
18
Bahadur v. Gopal, AIR 1964 Ori 134
8. Execution petition is dismissed for failure to take steps, sec.151 applies to revoke order of

dismissal and O.21 R.106 is no bar. Dismissal for default on the date of hearing O.21 R.106

applies19.

9. There is nothing in order 39 of the code which expressly or by necessary implication

precludes the exercise of inherent power of the court under sec.151 and it is open to the court

to pass a suitable consequential order under section 151 as may be necessary for the ends of

justice or to prevent abuse of process of the court20.

10. The court has power to grant interim relief considering the merit of each case and such relief

is subject to adjustment upon final determination in the suit. Such interim relief is also

granted to avoid abuse of process of court21.

11. Order passed by mistake may be corrected by the same court and the court can do it even

apart from sec.151. Court can set aside the decree under its inherent powers after passing it

where it is a nullity or passed due to mistake by the court22.

12. If due to absence of advocate no cross examination is made and later advocate appears and

prays for cross examination, the prayer can be granted under inherent powers23.

13. Under section 151 the jurisdiction to stay an otherwise competent suit is to be sparingly

exercised and only for the ends of justice and to prevent abuse of process of court and thus

when all the evidence is available in D place a suit in C can be stayed notwithstanding

competence of latter court for the ends of justice24.

19
Deo Narayan Goala v. Jagadish Pandit, AIR 1985 Gau 49
20
Ram Chand & sons Sugar Mills (p) Ltd. V. Kanhayalal, AIR 1966 SC 1899
21
Rita Kishor v. Delhi Development Authority, AIR 2000 Del 417
22
Surjit v. Munikaram, AIR 1951 All 381; also see ibid at pg 821
23
Ibid at pg.827
24
Ibid at pg. 829
 E. Inherent Power When Not Invoked:

When there is no case of grant of a particular relief under a particular statute, power

under sec.151 need not be exercised. Where in a case claiming maintenance by a Hindu woman

married to a Hindu Male having a living lawful wedded wife, it cannot be granted U/s 25 of

Hindu Marriage Act, 1955, the marriage being void under section 5(1) thereof, and such reliefs

cannot be granted by invoking sec.15125 A court cannot override the express provision of law but

if there is no express provision in the statute, then the apex court has held that the court can

exercise its power in a suitable case. Hence as per the judgment in the case of Ram Chand &

Sons Sugar Mills (p) Ltd. v. Kanhaya Lal Bhargava 26, the power u/s 151 cannot 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.

Inherent powers can be exercised when no other remedy is available. Sec.151 hence

cannot be invoked as substitute for appeal, revision or review. In exercise of inherent powers

however, the court cannot override general principle of law. It could only be for securing ends of

justice and prevent abuse of process of court27.

The inherent powers of the court u/s 151 also cannot be invoked to grant a relief

beyond scope of law. For instance if in an auction proceedings once the law has fixed 15 days

time to deposit the full amount of purchase money in the court, such period cannot be extended

u/s 15128.

F. Conclusion:

25
Abbayolla M Subba Reddy v. Padmamma, AIR 1999 AP 19
26
AIR 1966 SC 1899
27
Velayudhan Nair v. Kerela Ksheman Yunik Kuries Pvt. Ltd, Trichur, AIR 1988 Ker 223
28
United Commercial Bank v. Mani Ram & Ors, AIR 2003 HP 63
 In the conclusion I, would like to state that after studying the judicial

trend/various judicial pronouncements one thing is made clear by the courts that barring few

exceptions the court has a plenary power to grant reliefs u/s 151 if it is facilitating in the ends of

justice or preventing from the abuse of process of court. Secondly, if few basics are followed by

every court then it would not be difficult or confusing job to determine the stage as to when the

inherent powers should be invoked. Thirdly, it seems that the ground of having vested with

inherent powers can be used as positive weapon to condone few lapses in procedural aspects of a

case by the courts in the matters where the counsels come and argue on technicalities. Moreover

after the case study it is manifest that the courts are even cautious enough as regards the stage

and circumstances for invoking inherent powers and have strictly followed the principles

governing the provisions of section 151. Fourthly, as regards the proper use of inherent powers

the courts have invoked them in appropriate cases and yes it does not mean that there are no

instances where the courts have misused it but one can say that there is less misuse and in many

cases the Apex court or the High courts have rectified such misuse and have compensated the

parties. Thus, in my view inherent powers are of utmost importance and are the best example to

show the cautiousness of the legislature to enable all the people have access to justice even under

such circumstances where there is no express provision and a problem or issue at law has arisen.

G. Bibliography:

a. Basus, The Code of Civil procedure, 10th Edn, Vol.II, 2007, Ashoka Law House, New Delhi

b. Nandi and Sengupta Justice, the Code of Civil Procedure, 1908, 3rd Edn, Vol.1, 2009, Kamal

Law House

c. P Ramanatha Aiyar, concise law dictionary, 3rd Edn, reprint 2009, Lexis Nexis
d. Saha A N, The code of Civil Procedure, 6th Edn, Vol.1, 2008, Premier Publ. Co. Allahabad

e. Takwani C K, Civil Procedure, 6th Edn, 2009, Eastern Book Company

f. Doabia T S Justice, MLJs Code of Civil Procedure, Vol.2, 13th Edn, 2008.