1. The two applications, for which a common order will suffice, were filed under Order XLI, rule 21 read with section 151, C. P. C. To set aside the orders passed ex parte, disposing of Revision Applications 215 and 216 of 1973.
2. Briefly stated the facts are that both the revision applications and the interlocutory applications were ordered to be beard together on 21st August 1973. They were, therefore, fixed for hearing on 14th September 1973. When the matters were called out on that date, the counsel for the applicant in both the applications was present but the respondent and his counsel were absent. The applications were heard in their absence and allowed by me vide order dated 14th September 1973.
2. The R & P of the two cases were returned to the District Judge for deciding the suits according to law. It is the stand of the respondent that his counsel learnt of the orders of the High Court vacating the earlier orders of the District Judge granting unconditional leave to defend the suits on 31st October 1973 when the suits were called up for disposal on 31st October 1973 and decreed with costs. The respondent in both the suits applied for setting aside the ex parte order under Order XXXVII, rule 4, C. P. C. But he was unsuccessful. However, earlier to it the respondent filed applications in this Court on 7th November 1973 to obtain the setting aside of the ex parte orders.
3. Mr. Mohsin Siddiqui has filed his own affidavit to explain his absence on the date of hearing. While the reason given by Mr. Mohsin Siddiqui is that he was bed-ridden from the evening of 15th August 1973 till third week of September as a result of "liver abscess and acute hapatitis", the work was being looked after by his junior Mr. Amin Lakhani, who was attending to the cases in the Subordinate Courts, taking dates and also attending his private office which was in his house. It is admitted that the respondent was served with the notice of the revision application who approached him (Mr. Mohsin Siddiqui) for representing him in the high Court while he was still confined to bed. Having accepted the engagement Mr. Mohsin Siddiqui signed the vakalatnama and gave it to Mr. Amin Lakhani for filing it before the Deputy Registrar on 5th September 1973. It was, however, not filed on that date but on 8th September 1973. The diary of the case shows that the respondent did not attend in spite of service and the revisions and the interlocutory applications were ordered to be fixed in Court and listed for hearing in the daily list of the 14th which was circulated in the evening of 13th September. It was admitted at be Bar that such a list was received by him at his house every evening. Mr. Mohsin Siddiqui has, however, categorically stated that he was not attending to the work and, therefore, he was not aware of the date of hearing of the case. In his absence it was Mr. Amin Lakhani, who was examining the daily list in his private office. While giving out an excuse for him, Mr. Mohsin Siddiqui stated: --- "He also inadvertently could not get notice or information of the case having been fixed for 14th September 1973."
4. Mr. Amin Lakhani in his affidavit while admitting that he was looking after the cases during Mr. Mohsin Siddiqui's illness stated: --- "In spite of my best efforts I had no notice that the matter was called in Court on 14th September 1973, on which date it was decided ex parte."
3. Again in para. 9 of the affidavit it is stated: --- "In spite of due diligence, the above case escaped my notice."
5. Mr. Amin Lakhani has not referred to the daily list in his affidavit but impliedly he means it while stating that the cases escaped his notice. The purport of both the explanations appears to be that Mr. Amin Lakhani failed to notice the cases listed for 14th September 1973.
4. On the one hand, it cannot be disputed that Mr. Mohsin Siddiqui was ill and, therefore, unable to attend the Court on 14th September 1973; on the other the error on the part of Mr. Amin Lakhani to notice the cases listed for that date is a reason which has been assigned for not informing the Court about his illness. The question still remains whether I can regard it as a sufficient cause for his non-appearance for setting aside the ex parte orders. This point is not free from difficulty. While in suits and appeals there are specific provisions in the Code of Civil Procedure. i.e., Order IX, rule 13 and Order XLI, rule 21, C. P. C., for sating aside the ex parte decree and the appeal decided ex parte if sufficient cause is shown, but no such provision exists in the case of a revision. Equally there might be a case where the revision is dismissed for default of appearance, for which also there is no provision such as Order IX, rule 9 and Order XLI, rule 19, C. P. C. As in the case of a suit and appeal. It is, therefore, argued that section 151, C. P. C. Can be pressed into service for setting aside such orders. Reliance is placed in support of it on Dhondiba Appasahab and another v. Wasudeo Aanant Sherlekar and another (AIR 1957 Nag. 83), Kanshi Ram v. Mst. Dharmi and another (AIR 1953 Hem. Pra. 102) and Ghulam A.I v. Vishwanath Balwant Mahakal (AIR 1962 Madh. Pra. 308). The above cases are instances where the revision applications were dismissed for default of appearance. They were subsequently restored by invoking section 151, C. P. C. On the principle that such a provision is designed to meet an eventually of the kind which is not specifically provided for, in the absence of any prohibition against such restoration. Therefore, a resort to it would not amount to assuming jurisdiction but for serving the ends of justice. The contrary view is expressed by Byers, J. In A. Ramamurti Ayyer and others (AIR 1945 Mad. 103), which was not followed in the above decisions. He observed thus: ---- "The dismissal of a cause for default of appearance is as much a final order as a dismissal on the merits; and the Court cannot set aside its own order unless it has jurisdiction to do so. In the case of suits and appeals the power exists under Order IX, rule 9 and Order XLI, rule 19, Civil P. C. To set aside dismissals of suits and appeals in default of appearance; but there is no corresponding provision relating to civil revision petitions. The only other way in which a final order can be set aside is by way of appeal or review, but in a case of this kind no appeal lies and it is clear from the facts that no case could be made out for review. Lastly, section 151 of the Code is relied on; but I am unable to agree with Mr. Rajah Ayyar that this section confers upon a Court the power to exercise a jurisdiction which it does not otherwise possess."
6. There is also an earlier decision of the same High Court in P. Subbamma v. Ch. Venkata Reddy (AIR 1943 Mad. 260) by the same learned Judge, but the applicability of section 151, C. P. C. Was not involved and the case was decided on the footing that the revision application under section 25 of the Provincial Small Causes Court Act dismissed for default could not be restored by resort to section 107 read with Order IX, rule 9, C. P. C. Later a learned Single Judge of the same High Court in Govindraju and another v. Lala alias P. P. Naidu ((1958) 2 Mad. L J 515) observed that so far as that High Court was concerned there are two views, one taken by Byers, J. And the other by Kunhi Rahman, J. In an unreported C. M. P. No. 5421 of 1942 and Wadsworth, J. In C. M. P. No. 2962 of 1943, in which it was held that the revision petitions can be restored which are dismissed for default. It was because of this difference of opinion that a rule was added to the Appellate Side Rules, which mutatis mutandis applied the provisions of rules 11(2), 17, 18, 19 and 21 of Order XLI, C. P. C. To civil revisions also. There is no discussion of the applicability of section 151, C. P. C. But the issue was resolved on the footing of this rule. No decision was cited where an ex parte order on merits was called but it was contended that such an order can also be set aside on the footing of an order of dismissal for default. It can hardly be in doubt that the expression "the High Court may make such order in the case as it thinks fit" in section 115 C. P. C. Would include interference with the order of the Subordinate Court for the reasons mentioned in clauses (a), (b) and (c) of subsection (1), non- -interference and so also dismissal for default or decision on merits ex parte. However, an order of the kind mentioned above can only be passed so long as the High Court is seized of the matter.
7. Having thus disposed it of and in the absence of a provision for setting aside the dismissal for default or the ex parte order on merits, if such orders are to be set aside it will essentially be a matter of review of those orders. Now the Code provides for review of orders if a case is made out in terms, thereof, which is not the case here. It now remains to be seen whether inherent power can be exer--cised in the absence of an express provision. This brings ms to the consideration of the scope of judicial power, which is inherent in a Court, which section 151, G. P. C. Preserves. This subject is dealt with in its scope in relation to the general, ancillary and incidental jurisdiction in Corpus Juris Secundum, Vol. 21, and I now quote here the relevant passages: -- "21 C. J. S. Courts, section 31.-Courts, at least those of general jurisdiction, possess certain inherent powers, and certain powers which may be said to be implied from a general grant of jurisdiction, in addition to those expressly conferred on them. The inherent powers of Courts are derived from the laws to which the Courts owe their existence, and do not exist without express or implied grant.
8. 21 C. J. S. Courts, section 86.-A Court has inherent power to main--tain its jurisdiction and render it effective on behalf of litigants. Generally speaking, Courts have the power to control their own proceedings, at least during the term of Court, or so long as they are pending.
9. 21 C. J. S. Courts, section 88.-While a Court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to exiting laws and constitutional provisions every regularly constituted Court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, and for the enforcement of its judgments and mandates . . . . . If a Court has no jurisdiction of the principal question, it has none of its consequences and incidents, and lack of jurisdiction to grant the principal relief sought is not cured by jurisdiction to grant the incidental relief sought . . . . . . Every Court has inherent power to control, and prevent abuse of, its orders or processes and its procedure."
10. Broadly speaking, such powers are understood in the concept of maintaining the general, ancillary and incidental jurisdiction which cannot exist without jurisdiction as they are derived from laws, to which Courts owe their existence and must of necessity be exercised within the scope of jurisdiction and not beyond it; hence inherent powers cannot be divorced from jurisdiction which determine these manner in which the judicial power is to be exercised. The above conclusion gains strength from the following observa--tions of Hamoodur Rahman, C. J. In State v. Ziaur Rahman (PLD 1973 SC 49) while commenting on the scope of judicial power and jurisdiction: ---- "It may well be asked at this stage as to what is meant by 'jurisdiction'? How does it differ from `judicial power'? Apart from setting up the organs the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide constitutional issues. It may demarcate the territories in which a particular Court shall function and over which its writs shall run. It may specify the persons in respect of whom the judicial power to bear and determine will be exercise-able. These are all matters which are commonly comprised in what is called the jurisdic--petition of the Court. It expresses the concept of the particular res or subject- matter over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction is, therefore, a right to adjudicate concerning a particular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court."
11. Necessarily, therefore, there has to be jurisdiction before the inherent power can be invoked and not independently of it, otherwise it will be a case of usurption of power. I would, therefore, venture to answer this question from this angle. While the Code expressly provides for setting aside the dismissal for default or an ex parte decree in suits and on the same footing such orders! In appeals, there is none so far as the revision is concerned. In the case of suits and appeals, therefore, the judicial power is manifest from the provision which defines the jurisdiction. It is therefore in aid of this jurisdiction that the judicial power exists. In the case of revisions, however, no such power can be said to exist without a provision. This conclusion receives support from the following observations of Lord Esher M. R. In Drew and another v. Willis ((1891) 1 Q B 450): --- "No Court has such power of setting aside an order which has been properly made, unless it is given by statute . . . . Then it suggested that there is inherent power in the Court, either at common law or under its equitable jurisdiction. Certainly there is no such power at common law, and that there is none in a Court of Equity was shown by the fact that, when asked to formulate an application to a Court of Equity, the learned counsel omitted, and rightly omitted, from his prayer any request that the charging order should be set aside."
12. Again, on the same question, Prinsep, J. In Lala Prayag Lal and others v. Jai Narayan Singh and another (I L R 22 Cal. 419) observed as follows: ---- " I cannot admit that such a power is inherent in every Judicial or Revenue Officer. It is a power expressly given by law to Judicial Officers under certain conditions, and therefore, it cannot be assumed that when not so given it is inherent in every officer. If this had been so, there need not have been any legislation on the subject. We cannot hold that all this legislation was unnecessary."
13. These observations were approved in a later case (I L R 34 Cal. 677) of the same High Court. The Madras High Court took the same view in Anantharaju Shetty v. Appu Hegade (AIR 1919 Mad. 244).
14. While giving his opinion in Gad Neelaven! v. M. N. Reddi (AIR 1920 Mad. 640) Sheshagiri Aiyar, J. Also held so. A Division Bench of the Allahabad High Court in Deb! Prasad and others v. Khelawan and others (AIR 1957 All. 67) held that as a general rule, no Court or Judge has the power to rehear, review., alter or vary any order or judgment after it has been .Entered or drawn up. The same is the view of the Bombay High Court in Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and another (AIR 1961 Bom. 21). The High Courts of Mysore, Travencore and Andhra Pradesh in AIR 1953 Mys. 152, AIR 1953 Trav-Co. 439 and AIR 1959 Andh. Pra. 321 are also of the same opinion. Lastly, the erstwhile High Court of West Pakistan in two cases, namely Jalal Din and another v. Major Muhammad Akram Khan and others (PLD 1963 Lah. 596) and Mst. Maqsoodan Bibi v. Mst. Bhano (PLD 1965 Lah. 183) held that an order once made is final and it cannot be reviewed unless the power is expressly conferred by Statute.
5. Therefore, the invoking of inherent power would be futile and in -the circumstances, as Byers, J.
15. Held, it would amount to assuming jurisdiction in the absence of specific provision. It is not correct to say as was held in the decisions relied on by the learned counsel for the applicant that it will not be a case of assumption of jurisdiction but one where such an eventuality was unforeseen which I am unable to understand. Equally, the invoking of such power cannot be for serving the ends of justice when it does not exist and iff effect it would amount to a review of the orders. In this view of the matter, there is no scope for considering sufficient cause as a reason for setting aside the orders in the two revision applications. The applications have no force and are dismissed. Since the point was not free from difficulty, I would not mulct the applicant with costs in both the applications.
16. K. B. A.