P L D 1957 Dacca 161 (PLP)

AKBAR, J.‑

This Rule was issued calling upon the opposite party to show cause why the order of the Subordinate Judge, 1st Court Chittagong, dated the 3rd December 1955 restoring Money Suit No. 10 of 1955 of his Court, which hay been dismissed for default, should not be set aside. On 30th November 1955, the said suit was dismisses under the provisions of Order XI, rule 21, of the Code of Civil Procedure on account of plaintiff's default to Olive certain interrogatories to the defendant. On 1st December 1955, the plaintiff applied under section 151 of the Code of Civil Procedure for the restoration of the suit on the ground that the order of dismissal was irregular and illegal. On 3rd December 1955, the learned Subordinate Judge upheld the plaintiff's contention and restored the suit. Mr. Hakim, appearing in support of the Rule, has contended that the order of the learned Judge of 30th November 1955, dismissing the suit, was a valid order, and the Court had no inherent power under section 151 to set it aside, as the order was one which was appeal-able under Order XLIII, rule 1 (f) of the Code of Civil Procedure. Mr. Mesbahuddin opposing this Rule, has argued that the order of 30th November, 1955, dismissing the plaintiff's suit was wrong in law, and hence the Court was justified in setting aside that order and in restoring the suit. Now, the facts are as follows: On 8th September 1955, the defendant's prayer for 15 days time to serve interrogatories on the plaintiff was allowed. On 21st September 1955, the defendant applied seeking Court's permission to serve interrogatories on the plaintiff. On 22nd September 1955, the Court granted his prayer and directed the plaintiff to answer the interrogatories by 3rd October 1955. On 3rd October 1955, the following order was minuted

‑ "Plaintiff does not take any steps, Legal consequences will follow. To date fixed for fixing a date of P hearing." On 30th November 1955, the defendant filed an application praying that the plaintiff's suit should be dismissed for his default in answering the interrogatories. The plaintiff was also found absent from Court. The Court, therefore, dismissed the suit for want of prosecution. In the case of Sardacharan Seal and another v. Jagabandhu Mahajan and others (2 P L R Dacca 31: P L D 1953 Dacca 42), a Division Bench of this Court held that without an order under rule 11 of Order XI of the Code of Civil Procedure, the written statement of a defendant cannot be struck off under rule 21 of the said Order. We respectfully agree with the decision in the above case. Hence, we are to see whether an order under rule 11 of Order XI of the Code of Civil Procedure was passed prior to an order under rule 21 of the said order. In this case, on 21st September 1955, the defendant asked for leave under Order XI, rule 1, of the Code of Civil Procedure, and the Court directed the plaintiff to answer certain interrogatories by 3rd October 1955, Rule 11 of Order XI of the Code contemplates that if the plaintiff or defendant fails to file interrogatories or to answer them, there should be an application by the person interrogating to direct the person interrogated to submit his answers to the inter rogatories within a certain time. No such application was however, made in this case. As stated above, on 3rd October 1955, the Court just minuted the fact that no interrogatories had been filed by the plaintiff. Mr. Hakim, the learned Counsel for the petitioner before us, has faintly suggested that this order might be taken as one under Order XI, rule

11. The same Judge, who dismissed the suit, while restoring the suit, observed :‑ "In the present case, no application was filed and no order was passed under Order XI rule 11, civil P. C." Hence, we are unable to accept the above suggestion of Mr. Hakim. It is, therefore, clear that no order was made by the Court under Order X1, rule

11. In these circumstances, we accept the contention of Mr. Mesbahuddin that the Judge had no power to dismiss the suit on 30th November 1955. The next question is whether the Judge had jurisdiction to pass an order under section 151 of the Code of Civil Procedure restoring the suit. Different High Courts in India have taken different views of the scope of section

151. The Bombay High Court, in B. Mohanlal & Co. v. A. Yolibai (A I R 1932 Dom. 271), has held that an application under section 151 lies to set aside an order made under Order XI rule 21, of the Code, whereas Calcutta High Court in Ashutosh Ghose and another v. Indubhusan Ghose (A I R 1927 Cal. 158), and Allahabad High Court in Chandra bhan Singh v. Lallu Singh and another (A I R 1947 All. 343) have taken a contrary view. We are inclined to agree with the views of the Judges of the Calcutta and Allahabad High Courts, namely, "that where a party has neglected to avail himself of a remedy provided by the Civil Procedure Code, it is not open to him to invite the Court by virtue of inherent jurisdiction to) disturb a decree or order which he has failed to challenge in a statutory manner". The position, therefore, is that the learned Subordinate Judge acted illegally in dismissing the suit on 30th November 1955 and he also acted illegally on 3rd December 1955 in directing the restoration of the suit. Now the question is shall we be justified in setting aside the second illegal order? If we do so, it will mean restoring an illegal order passed by the learned Subordinate Judge on 30th November 1955. In these circumstances, we do not think it will be just and proper for us to exercise our discretionary power under section 115 of the Code of Civil Procedure in this case in favour of the present petitioner. By the second illegal order, he has restored the parties to their original position. We think the defendant cannot have any legitimate grievance if the suit is heard. Hence, in our opinion, this is not a fit case for our interference. We, therefore, dismiss this application and discharge this Rule but without arty order as to costs. RAHMAN, J.‑

I agree. K. B. A. Rule discharged.