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Pramod Kumar Pandey v. The Union Of India And Others - WRIT - C No. 2591 of 2004 [2005] RD-AH 1352 (18 May 2005)


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Hon'ble Rakesh Tiwari, J

  By means of the present writ petition, the petitioner has challenged the validity and correctness of the impugned judgment and order dated 22.7.2003 (Annexure 5 to the writ petition) passed by Additional District Judge, Court No. 1, Gorakhpur- respondent no. 5 and has prayed for issuance of a writ of certiorari quashing the same.

Briefly stated, the facts of the case are that the petitioner -Pramod Kumar Pandey was Constable in Railway Protection Special Force (R.P.S.F.) .  The petitioner was charge sheeted under Section 9 (I)(i) of the Railway Protection Force Act, 1957 in respect of an alleged incident on 11.7.2993 for gross remissness, misconduct, and breach of discipline. He was placed under suspension vide order dated 27.7.1993. He remained under suspension from 3.8.1993 to 15.11.1993. He was reinstated in service but was awarded the punishment of withholding of increment for the intervening period of suspension. Aggrieved the petitioner was advised to file departmental appeal for selection to the post of Assistant Sub Inspector.  For promotion to the said post, written examination was held on 29.9.93 and interview was to be held on 30.9.93.  The petitioner appeared in the written examination but was not called for interview on the ground that he was placed under suspension.   His repeated requests for quashing the order of suspension and order of imposition of punishment for withholding the increments fell in deaf ears. Feeling aggrieved, the petitioner instituted Original Suit No. 730 of 1998- Pramod Kumar Pandey V. Union of India and others in the court of Civil Judge (Senior Division) Gorakhpur., accompanied by an application for permanent injunction to promote him to the post of Assistant Sub Inspector in the pay scale of Rs.1320-2040 per month w.e.f. 1.10.1993.  The suit was contested by the defendant- respondents, by filing their written statement.

The suit was dismissed in default for non-prosecution by judgement and order dated 1.2.2000 passed by First Civil Judge (Senior Division) Gorakhpur. Restoration application under Order IX Rule 9 of the Code of Civil Procedure was allowed with cost of Rs.500/- which was deposited by the petitioner before the concerned court.  Aggrieved, the defendant-respondents preferred Civil Revision no. 203 of 2001 before the District Judge, Gorakhpur which was transferred to the court of Additional District Judge, Court No. 1,Gorakhpur.  Revision has been allowed on the ground that the petitioner did not mention that the restoration application under Order IX Rule 9 C.P.C was being filed read with Section 151 C.P.C. The revisional court held that since he failed to mention Section 151 of the  code of Civil Procedure in the restoration application the court below could not have exercised power under Section 151 C.P.C for restoration of the suit with cost.  Hence this petition.

  Counsel for the petitioner contended that the impugned order allowing the revision on the sole ground that in the opinion of the court though the petitioner had  mentioned that the application is being filed under Order IX Rule 9 of Civil Procedure Code but had not mentioned Section 151 C.P.C also, the trial court had no jurisdiction to exercise power of Section 151 C.P.C.  The order is, therefore, illegal, arbitrary and without application of mind and is liable to be quashed.

Counsel for the respondents and Standing counsel defended the impugned order and submitted that every application/petition must contain the provision of law under which it is being filed.

Having heard counsel for the parties, I am of the view that under Order IX Rule 9 C.P.C the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action but is entitled to apply for an order to set aside the dismissal, and if he satisfies the court that there was sufficient cause for his non appearance then the court shall make an order setting aside the order of dismissal on such terms and costs or otherwise as it thinks fit. It is not in dispute that the court allowed the application in the interest of justice for decision on merits with costs of Rs.500/-. Under Section 151 C.P.C, the court has an inherent power by virtue of duty to do substantial justice between the parties before it.  Power is debito justitiae Inherent powers are not controlled in any way by the provisions of the Code and are not to be exercised if they are in conflict with what has been expressly provided in C.P.C.  Power under Section 151 C.P.C is in addition and complementary to the powers expressly conferred un the Code upon it by the other provisions of the Code and are meant to enable the court to pass such orders for meeting the ends of justice as may be necessary.  Admittedly, in the instant case, application had been filed under Order IX Rule 9 C.P.C and that power was exercised by the Additional Civil Judge (Senior Division) under Order IX Rule 9 C.P.C- not in conflict with its inherent powers under Section 151 C.P.C which were expressly provided in the Code. The revision filed by the defendant-respondents has been allowed on hyper technical ground that the plaintiff failed to mention that the application is being filed under Section 151 C.P.C. in addition to order IX Rule 9 C.P.C. It is settled law that if Section is wrongly mentioned or is not properly mentioned, it would not be a good ground for not passing appropriate orders. Substantial justice cannot be refused to a person by the court by taking refuge behind hyper technical views. The apex court as well as  various High courts have  consistently held that cases should be heard and decided on merits and they should not be disposed of merely on hyper technical grounds.  The impugned judgment and order cannot be sustained in law and deserves to be quashed.

In the result, the writ petition is allowed and the impugned judgment and order dated 22.7.2003 (Annexure 9 to the writ petition) passed by Additional District Judge, Court No. 1, Gorakhpur- respondent no. 5 is hereby quashed. Respondent no. 5 is directed to decide the revision afresh in accordance with law.   Parties shall bear their own costs.

Dated 18.5.2005



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