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Published : June 10, 2010 | Author : pushkarthakur
Category : Civil Laws | Total Views : 6535 | Unrated

  
pushkarthakur
Pushkar Thakur. 3rd Year Student. W.B.N.U.J.S Kolkata,West Bengal
 

Miscellaneous Proceedings

The judicial system in the country is almost on the verge of collapse. Our judicial system is creaking under the weight of arrears.”- P.N. Bhagwati[1]

On such a start , I would mention that any ambiguity in a law as central as the Code of Civil Procedure, 1908 would lead to many a problems in the already problem stricken society with regards to the judiciary. Such a section that is being dealt by me in my draft is section -141.

Law can be broadly divided into two categories 1. Substantive and 2. Adjective. Substantive law creates and defines substantive rights. While adjective law aims at regulating the procedure to be followed by the courts in exercise of substantive law. -The code of civil procedure is an adjective law. It regulates the procedure to be followed by civil courts. The object of the code is to consolidate and amend the laws relating to the procedure of the courts of civil judicature. It is a consolidated code collecting all the laws relating to the procedure to be adopted by civil courts.

The draft basically will deal with the concept of Miscellaneous proceedings under the code with respect to Article -141. The case laws used by me are with respect to the function of the judiciary and its main implementation with respect to the concept of miscellaneous proceedings.

The procedure provided in the code with regard to suits as far as it can be made applicable in all proceedings of any court having civil jurisdiction.

Understanding the procedure of the section, we have to understand that the section extends the procedure provided in the court with regard to suits and proceedings in the civil courts. It does not confer any substantive right not expressly given elsewhere by the code, eg. A right of appeal.[2] Hence, no appeal lies from order passed in a “proceeding” of the kind contemplated by this section unless the order comes from the purview of Order 43.[3] Nor does an appeal lie from an order returning a memorandum of appeal to the proper court.[4] Further , the section does not confer upon any court entertaining such proceedings a power not to expressly given elsewhere by the code, eg, the power to refer questions to the High Court ( s 113)[5]

The right conferred on a ruler under section 86 is one of substance and cannot be claimed under section -141 in a probate proceeding,[6] nor the right to apply for review, which is not a procedural but a substantive right.[7]

Chapter -1 1976 Amendment & Its Explanation On Miscellaneous Proceedings With Regard To Writ Petitions.
The explanation inserted in 1976 resolves the judicial controversy both with regard to the applicability of the provisions of the code under this section to applications for setting aside ex parte proceedings or orders of dismissal for default under order 9 or rule 9 and also as regards to the applicability of the provisions to writ proceedings under article 226.[8] It , now provides that in case of the former, they apply and in the case of the latter they do not. Though writ proceedings are not proceedings within the meaning of this section and therefore are not covered by the code, the explanation does not run counter to the high court exercising its jurisdiction under article 226 and invoking this section in doing so.[9] This is done , not because the writ proceedings are governed by the code , but because its provisions are in conformity with the rules of natural justice. A writ petition dismissed for default can be restored upon a reasonable cause being shown.[10]
When the high courts exercises extraordinary jurisdiction under article 226 of the constitution, it aims at securing a very speedy and efficacious remedy to a person , whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the CPC ( Code of Civil Procedure,1908) are to be applied to writ proceedings, the very object and purpose is likely to be defeated. In view of the conflicting opinions expressed by the different courts , the parliament , by the amending act of 1976,introduced the explanation saying that in section 141 of the code , the expression “proceedings” does not include any proceedings under article 226 of the constitution and statutorily recognized the views expressed by some of the courts, that writ proceedings under article 226 of the constitution shall not be deemed to be proceedings within the scope of article 141. After the introduction of the “Explanation” to the section 141 of the code , it can be said that when section 141 provides that the proceedings prescribed in the code with regard to suits shall be followed as far as it can be read in all proceedings in any court with the jurisdiction of entertaining civil suits. In this background , it cannot be held that the provisions contained in order 22 of the code are applicable per se to writ proceedings. [11]Notwithstanding, rule 24 of the writ proceedings [12], the provisions of the code cannot be made applicable to any extent to any writ proceeding under article 226 of the constitution and the high court in dealing with such matters should be left to adopt its own procedure for granting relief to concerned person and adopting a procedure which can be held not only reasonable but also expeditious.

With the total exclusion of the proceedings under article 226 of the Constitution from the purview of the section 141 of the code, there is no question of making applicable the procedure of the code “ as far as it can be made applicable to the proceedings under article 141. If, inspite of it, the provisions of the code are made applicable to the proceedings under article 226 of the constitution, it would be repugnant to the extraordinary powers of the High Court thereunder.[13] The Supreme Court, while dealing with a writ petition under article 226 of the constitution , has not totally excluded the possibility of allowing oral application made under article 226 of the Constitution in the emergent cases. It is so, because the procedural provisions of the Code of Civil Procedure are not made applicable to writ proceedings under article 226 of the Constitution by virtue of the explanation of the Code of Civil Procedure, 1908. It was observed that the practice of entertaining oral application and issuing interim orders by any court in matter of consequence without any affidavit having been shown to as a prima facie proof of allegation and without any record being kept before the court, may lead to very serious abuse of the process of the court. However, if some grossly iniquitous act is about to be perpetrated and any delay would result in the fait accompli of a monstrosity ,urgent oral application could be permitted to be filed later. [14]

Chapter-2 Explanation With Regard To Proceedings In Any Courts Of Civil Jurisdiction
The chapter is an important aspect as well as an integral part of my draft. This is so because as explained later , the ambiguity of the section or the issue with its being applicable to the suits of original matter and those of application for execution is somewhat resolved.

I have tried to use as many cases as possible for this section of the project so that comprehensive explanation with brevity is introduced in the draft.

The Privy Council in Thakur Prasad v. Fakir Ullah took the view that this section did not apply to applications for execution but applied only to “Original matters” in the nature of suits ,such as proceedings , in probates, guardianship and “so forth”.[15] The words “so forth” used by Privy Council were understood to mean any proceeding ejusdem generiswith the instances preceding term and would include proceedings such as in divorve , insolvency, for succession certificates etc. In other words ,this section aaplies to the original matters ,ie matters which originate in themselves and not those which spring from a suit or from some other proceedings or arised in connection therewith. [16]

Thus, an application for probate may be dismissed for default under order 9 and then restored.[17] Rejection of an application would be appealable under order 43 , r1(e). Following the dictum of the privy council , the Calcutta High Court in Sarat Krishna Bose v. Bisweswar[18]Mitra[19] held that this section did not make order 9 applicable to proceedings under order 9. Therefore , when an application under order 9,rule 9 for restoration of a suit was dismissed for default under rule 4 of that order ,no application lay under order 9,rule 9 for setting aside the order for dismissal and for its restoration. The view that the provisions of order 9 Code Civil Procedure, 1908 had no application to a proceeding under that order was restated by the Orissa High Court in Kunj Behari v. Chanchala Das[20]. Likewise , a division bench of Bombay High Court , following Sarat Krishna Mitra supra ,held that where a suit is dismissed for default and an application for its restoration under order 9,rule 9 of Code of Civil Procedure, 1908 is also dismissed for default, a further application to restore the application under order 9,rule 9 does not attract this section, the reason given being that this section contemplates only proceedings which are original in nature such as proceedings in probation, guardianship and so forth and also applications which are ejusdem generis with such proceedings.[21] In this decision, the High Court considered several decisions of the different courts stating various views on the applicability of this section to such matters and the view as to the applicability of this section to such matters and the view held there, that in any case, resort could be had to the inherent powers of the court under section 151. However, in Ramkarandas v. Bhagwandas,[22] the Supreme Court held that where an application is made to set aside a decree for ejectment under order 37,rule 4 and the funding is that no special circumstance is made out to set aside such a decree ,there is no scope for the applicability of section 151 ,since inherent powers are to be exercised in exceptional cases in respect of which the code does not lay down any procedure. This view appears to have been understood as being contrary to the decisions cited earlier by me, although neither this section nor order 9 was involved in it. The decision which specifically runs contrary to the Privy Council dictum in the Ramchandra case[23] where the question canvassed was whether a proceeding before a civil court arising out of a reference under section 146(1) of the code of criminal procedure is a civil proceeding as contemplated by this section. In dealing with that question the Supreme Court observed that the expression “civil proceeding” in this section, is not necessarily confined to and original proceeding like a suit or an application for appointment for a guardian etc , but that it applies also to a proceeding which is not original .This observation is certainly in conflict with the privy council dictum followed by Bombay,Calcutta and Orissa High Courts that this section contemplates proceeding like a suit, such as proceedings in probate, guardianship and so forth. In the light of the above observations of the Supreme Court , a proceeding under Order 9 Code of Civil Procedure, 1908 for restoration of an application dismissed for default under that order , would be a civil proceeding within the meaning of this section and that there being a remedy provided by the code , no resort can be had in such cases to section 151 of Code of Civil Procedure, 1908. Contrary to the Calcutta and Bombay view, the Punjab and Haryana High court in the decision , has held that an application under order 9,rule 9 is competent if it sought restoration of an earlier application have both been dismissed for default.

Where a suit was decreed ex parte and an application under order 9, rule 13 for restoration of the suit was also dismissed for default,[24] in view of the amended provisions of section 141, two alternative remedies were available to the applicant.[25] He could file an application under order 9,rule 9 read with section 141 Code of Civil Procedure, 1908 for restoration of the application dismissed for default or an appeal under order 43 , r1(C). As the code provides for alternative remedies, remedy under section 151 was not available.[26] In 1988, Calcutta High Court held that where a miscellaneous case (an application under order 9 and rule 4 ,9 or 13) is dismissed for default ,application for the restoration of such miscellaneous case is maintainable under order 9 read with section 141.[27]

Conclusion
Given the condition of judiciary in the nation and the fact that section -141 and its application affects the entire nation as the whole aspect of writ petition under section -226 of the hon’ble constitution and its relation with the Code of Civil Procedure, 1908 depends on it , the research for this draft gave me a lot of information and an insight on how a section with an explanation of not more than one line can be as ambiguous with regards to constitutional matter of writ petition.

The amendment of 1976 though with its explanation has tried to explain the application of section – 141 with respect to writ petitions. But what actually can be found to be of great agony to a uniform system of law is the fact that the high courts actually differed on viewpoint over the same issue when the lex loci continued to be the same for all and alike.

Considering the fact that this difference of approach and understanding stems from the same system of judiciary that is the spine of the nation, I in my draft have tried to go through numerous precedents to gauge the understanding and implementation of the section. The draft thus is a comprehensive and brief view on the section – 141 Code of Civil Procedure, 1908.

Bibliography
Primary Sources:

1. Constitution of India
2. Code of Civil Procedure ,1908
3. Writ proceeding rules ,1997 Andhra Pradesh

Secondary Sources:
1) M.R. Mallick, ‘Mitra’s Civil Procedure Code’, Eastern Law House, Kolkata, 4th edition, 2002.
2) M.P. Jain, ‘The Code of Civil Procedure’, Wadhwa and Company, Nagpur, 2004.
3) S.C. Sarkar and V.K. Manohar, ‘Code of Civil Procedure’, Vol. 2, Wadhwa and Company, Nagpur, 2000.
4) C.K Takwani, ‘Civil Procedure’, 170,5th ed., Eastern Book Company, Lucknow, 2005.
5) Anupam Srivastava, Solil Paul, Mulla ‘The Civil Procedure Code’, Act V of 1908, Vol. 2,16th ed., Lexis Nexis Buttersworths, New Delhi, 2002.
--------------------------------------------------------------------------------
[1] (1997) 2 SCC (J) 10, 11
[2] Bhagwati v. New Bank of India AIR 1950 EP 309(FB)
[3] Chandar v. Durga (1924) 46 ALL 538
[4] Raghunath v. Shamo (1904) 31 Cal 344
[5] Damodara v. Kitappa (1913) 36 Mad 16
[6] Vijaya Singhji v. Maharaja Rajendra Singhji (1955) Bom 912
[7] Supra note 5
[8] Hon’ble constition of India
[9] M.R. Mallick, ‘Mitra’s Civil Procedure Code’, Eastern Law House, Kolkata, 4th edition, 2002.pp-244
[10] Hans Raj v. State of Himachal Pradesh AIR 1978 HP 63
[11] Pooran Singh v. State Of Punjab AIR 1996 SC 1092
[12] Writ proceeding rules ,1997 Andhra Pradesh
[13] Hon’ble Secretary and Correspondent Badruka college of Commerce and Arts v. State of Andhra Pradesh
[14] Samarias Trading Co. v. S Samuel (1984) 4 SCC 666
[15] M.P. Jain, ‘The Code of Civil Procedure’, Wadhwa and Company, Nagpur, 2004 pp-372
[16] Ram Gopal v. Shanti Lal (1941) ILR All 807
[17] Rup Lal v. ManoharLal AIR 1936 Lah 863
[18] Anupam Srivastava, Solil Paul, Mulla ‘The Civil Procedure Code’, Act V of 1908, Vol. 2,16th ed., Lexis Nexis Buttersworths, New Delhi, 2002.pp-277
[19] (1927) ILR Cal 534
[20] AIR 1966 Ori 24
[21] Laxmi Investment Co v Tarachand AIR 1968 Bom 250
[22] AIR 1966 SC 1888
[23] Ramkarandas v. Bhagwandas AIR 1965 SC 1144
[24] Bhajan Singh v. Ganeshi Devi AIR 1978 P&H 257
[25] S.C. Sarkar and V.K. Manohar, ‘Code of Civil Procedure’, Vol. 2, Wadhwa and Company, Nagpur, 2000 pp-491
[26] Hazi Rustam Ali v. Emanuddin Khan AIR 1981 Cal 81
[27]C.K Takwani, ‘Civil Procedure’, 170,5th ed., Eastern Book Company, Lucknow, 2005.pp-155

Authors contact info - articles The  author can be reached at: pushkarthakur@legalserviceindia.com




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