လုံလောက်သောအကြောင်း[ sufficient cause ][ Part Six ]

 ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

လုံလောက်သောအကြောင်း[ sufficient cause ][ Part Six ]

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- ကော်လိပ်တော်အရာရှိ[ အမှုသည် ]သည်အကြောင်းကြားစာရသော်လည်းအလုပ်များ၍ရုံးသို့မလာရောက်နိုင်ခြင်းသည်လုံလောက်သောအကြောင်းဖြစ်သည်-

VOL V. INDIAN LAW REPORTS. RANGOON SERIES. 80 ( 92 )

APPELLATE CIVIL.

Before Mr. Justice Heald,  and Mr. Justice Cunliffe.

M. S. MAHOMED

              v.

THE COLLECTOR OF TOUNGOO.*

Civil First Appeal No. 225 of 1925 against the judgment of the District Court of Toungoo in Civil Miscellaneous No. 151 of 1924.

1927 Jan. 6.

အမှုတွင်တရားသူကြီး Heald နှင့် Cunliffe တို့ကအောက်ပါအတိုင်းဆုံးဖြတ်သည်-

[ Ctvil Procedure Code Act V of 1936) sections 92, 105 (J), Order9. Rule 13-Whether order setting aside an ex-parte decree can be questioned in an appeal against the subsequent decree in the same suit-Whether order mast affect the decision of case.

" on its merits "—" Suffcient cause" for absence is case of a Government servant.

At the instance of the appellant a reference was made to the District Court to enhance the compensation awarded to him by the Collector in a land acquisition case.

The District Cort enhanced the award after an ex-parte hearing.

The Collector was served with notices of the case as to the date of hearing and also before the date of judgment. 

The Collector now applied to set aside the decree under Order 9, Rule 13 of the Civil Procedure Code alleging in his petition (without any affidavit) that his absence from the case was date to his being on tour and pressure of work. 

The Judge set aside the ex-parte decree and after hearing evidence confirmed the original award of the Collector.

Appellant appealed to the High Court on the award and also contended that there was no sufficient cause for the District Court to set aside the original ex-parte decree and relied on section 105 ( 1 )of the Civil Procedure Code.

Respondent contended that no appeal lay against the ex-parte decree

and relied on section 99 of the Code.

Held, that the propriety of an order setting aside an ex-parte decree can be questioned in, an appeal against the subsequent decree in the same suit on the ground that the improper making of such an order involved an error, defect, or irregularity in an order affecting the decision of the case. 

Sections 99 and 105 ( 1 ) are not mutually destructive, and there is no need to read into section 105 the additional words " on the mirits".

Held, by HEALD, J.- that the Collector's unchallenged statement, though not supported by evidence or affidavit, that he was prevented by stress of Governnent work from attending the Court was a sufficient cause for his non-attendance and that in and case as the District Court had accepted it as sufficient cause, it was not proper for the High Court to interfere on appeal with such decision.

Held, by CUNLIFFE, that the District Court had no proper grounds or evidence before it to set aside the ex-parte decree and that therefore the appeal succeeded on the preliminary ground.

Held, on the merits of the case that the award of the Collector confirmed by the District Court on the rehearing of the case was fair and proper and therefore the appeal failed. ]

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1937 RANGOON LAW REPORTS 207 ( 213 )

FULL BENCH (CIVIL).

Before Sir Ernest  H. Goodman Roberts, Kt, Chief Justice, Mr. Justice Leach, and Mr. Justice Spargo.

YEIK LEE v. AIHOOR BIBI.*

Civil Revision No. 299 of 1936 from the judgment of the District Court of Myaungmya in Civil Mise. Appeal No. 17 of 1936.

1937 April. 27.

အမှုတွင်စုံညီခုံရုံးကအောက်ပါအတိုင်းဆုံးဖြတ်သည်-

[ Appeal-Ex parte decree against defendant set aside-Rehearing of suit-Plaintiff's suit dismised-Appeal against decree--Ground of appeal against order setting aside ex parte decree—Error " affecting the decision of the case", Order must affect the decision of the case on its merits--Civil Procedure Code (Act V of1908), s. 104, 105, O. 43, r. 1.

Where on the application of the defendant the trial Court sets aside an ex parte decree because it was satisfied that the defendant was prevented by sufficient cause from appearing, no appeal lies against such order. 

On the re-hearing of the suit if the defendant succeeds and the suit is dismissed the plaintiff in his appeal against the decree cannot question the propriety of the order setting aside the ex parte decree. 

The words in s. 105 of the Civil Procedure Code "affecting the decision of the case " mean affecting the decision of the case on its merits.

An order setting aside an ex parte decree does not constitute  an order affecting the decision of the case.

Atlamse: Koulier v. Gencsar, 47 MI.J. 641 ; Bida Ram v. Arjan Dai I.L.R. 14 Lal. 361 ; Chistamony v, Magloomali, I.L.R. 22 Cal. 981 ; Dhondu v, Patmarion, I.L.R. 51 Bom. 495 ; Gulab Kameer v. Thakur Des, L.L.R. 24 All. 464 ; Arishna Chasdra v, Molest Chandra, 9 C.W.N. 584; Radia Mohan v. Abbas All, I.L.R. 53 AlL. 012 ; Tasaddak Hasais v. Hayal-an-aissa, IL.R, 25 All. 2%0, referred to.

M. S. Mohomed v. The Colleclor of Toungoo, I.L.R. 5. Ran. 80, overruled pro tanto.

Gopala Chetti v. Subbisz, I.L.R. 26 Mad. 604, distinguished. ]

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- စက်ရှင်ရုံးတွင်ရက်ချိန်းတောင်းနေရသည့်အတွက်ရုံးချိန်းတစ်မိနစ်ခန့်နောက်ကျခြင်းသည်လုံလောက်သောအကြောင်းဖြစ်သည်-

1964 BLR 873 ( 875 )

တရားမပြင်ဆင်မှု

တရားသူကြီးချုပ်ဦးဘိုကြီးရှေ့တွင်

ဒေါ်ခင်မြင့်ပါ ၂(လျှောက်ထားသူများ)

                        နှင့်

မအုန်းအုန်းပါ ၂(လျှောက်ထားခံရသူများ)

၁၉၆၄ အောက်တိုဘာလ ၁၃ ရက်

အမှုတွင်တရားသူကြီးချုပ်ဦးဘိုကြီးကအောက်ပါအတိုင်းဆုံးဖြတ်သည်-

[ ဆုံးဖြတ်ချက်။   ။ရှေ့နေတဦးသည်၊စက်ရှင်ရုံးတွင်ရက်ချိန်းတောင်းနေရသည့်အတွက်၊ ၁ မိနစ်ခန့်နောက်ကျသွားသဖြင့်၊တရားမရုံးရှိအမှုပလပ်ခြင်းခံရရာ၊ထိုပလပ်သည့်အမိန့်ကို၊တရားသူကြီးကတဖန်ပြန်လည်ပယ်ဖျက်ခြင်းမှာ၊မှားယွင်းသည်ဟုမဆိုနိုင်။

ဦးငွေ နှင့် ဗမာ့တံခွန်ကုမ္ပဏီ၊ ၁၉၅၁ ခုနှစ်၊မြန်မာပြည်စီရင်ထုံးများ၊တရားလွှတ်တော်၊စာ ၁၃၄ ကိုရည်ညွှန်း၍လိုက်နာသည်။ ]

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- အဆင့်မြင့်တရားရုံးသို့သွားရောက်ဆောင်ရွက်ရသဖြင့်အချိန်အနည်းငယ်နောက်ကျခြင်းသည်လုံလောက်သောအကြောင်းဖြစ်သည်-

1991 BLR 96 ( 98 )

တရားမပြင်ဆင်မှု

တရားရုံးချုပ်တရားသူကြီးဦးကျော်ဝင်းရှေ့တွင်

ဦးမောင်ချစ် နှင့် ဒေါ်ချစ်ရင်ပါ ၆

၁၉၉၁ ဇန်နဝါရီလ ၁၀ ရက်

အမှုတွင်တရားရုံးချုပ်ကအောက်ပါအတိုင်းဆုံးဖြတ်သည်-

[ ဆုံးဖြတ်ချက်။    ။ရက်ချိန်းနေ့ကတနေကုန်မလာရောက်ခြင်းမဟုတ်၊အဆင့်မြင့်သောတိုင်းတရားရုံးသို့သွားရောက်ဆောင်ရွက်နေရသဖြင့်တရားပြိုင်၏ရှေ့နေမှာနေ့လယ် ၂ နာရီအချိန်ကျမှရောက်ရှိကြောင်းပေါ်ပေါက်သည်။

အဆင့်မြင့်တရားရုံးသို့သွားနေရသဖြင့်အချိန်အနည်းငယ်နောက်ကျရသည်ဟုအကြောင်းပြခြင်းမှာခိုင်လုံ၍ကောင်းမွန်သောအကြောင်းပြချက်ဖြစ်သည်။ ]

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1940 RANGOON LAW REPORTS 512 ( 526 )

FULL BENCH (CIVIL).

Before Sir Ernest Goodman Roberts, Kt., Chief Justice, Mr. Justice Dunkley, and Mr. Justice Blagden.

U AUNG GYI 

            v.

THE GOVERNMENT OF BURMA.

 Civil Revision No. 347 of 1939 from the order of the Subdivisional Court of Zigon in Civil Regular Suit No. 2 of 1939.

1940 March. 4.

အမှု၌၊တရားသူကြီးချုပ် ROBERTS, C.J. က၎င်း၏အမြင်နှင့်ဝေဖန်ချက်ကိုစီရင်ထုံးစာမျက်နှာ ၅၁၅ မှ ၅၂၁ အထိအောက်ပါအတိုင်းဖော်ပြသည်-

[ ROBERTS, C.J. - This is an application in revision against an order of the Subdivisional Judge of Zigon who restored to the file a suit which had been dismissed.

He held that apart from the powers under Order 9 Rule 9, he could exercise the inherent jurisdiction of the Court under section 151 of the Code of Civil Procedure in a case to which Order 9 Rule 9 did not apply.

The question is whether he was right in so holding.

The Rule says that where a suit is dismissed for Nour ofal, pearancs application to de the dismissal aside, consider whether there was sufficient cause for his nop-appearance when the suit was called on for hearing. 

The learned Subdivisional Judge addressed himself to this issue, but has refrained from expressing a definite conclusion upon it. He thought that even if no sufficient cause were shown the Court had inherent power to restore a suit, apart from the provisions of the Rule, provided there were just and reasonable cause for doing so. 

In the circumstances of the case he decided to restore the suit to the file whether there existed sufficient cause for non-appearance on the part of the plaintiff or not.

We have not had it explained to us why it should be just or reasonable for the plaintiff to be permitted to begin all over again in a case in which be has not shown sufficient cause for his non-appearance at the proper time in the proper place. 

It is clear that he has not shown such cause. In the affidavit sworn on the day upon which the advocate of the plaintiff failed to make his appearance before the Subdivisional Court, the advocate admits, first, that that day had been fixed for the hearing, and secondly, that being engaged in a Sessions trial he was, as he puts it, "prevented from appearing." 

Later, in support of the application for restoration of the suit, he says that his suit in the Subdivisional Court was dismissed in his absence; he went to the Subdivisional Court, but arrived five minutes too tate. 

We have been referred by the applicant in revision (through his advocate) to the diary of the Sessions trial, from wich it appears that the the advocate reached the unwarrantable conclusion that he could take a risk, and that, as a material witness before the Sessions Court was unable to attend, he hoped to be able to reach the Subdivisional Court in time.

In the affidavit it is stated that the advocate employed no clerk. 

Yet he had a personal assistant. 

He made no arrangement whatever to have the interests of his client safeguarded during his absence, and there was no evidence upon which the learned Subdivisional Judge could have found that sufficient cause for his non-attendance had been shown. 

Advocates who are engaged in cases which are fixed for hearing at a given time and place cannot be allowed to treat the Court before which the hearing is to take place with contumely or indifference, and then apply casually for reinstatement of a suit dismissed in their absence merely because they hoped or believed that they might attend the hearing. 

They must take; reasonable precautions, and the provisions of Order IX, rule 9, become meaningless if it can afterwards be urged tirat although none were taken and there was no sufficient cause for their non-altendance the suit can still-be restored to the file because the litigant would suffer if it were not.

It has been conceded that the principles which should govern our decision are the same as those which apply to the selling aside of an ex parte decree under rule 13 of the same Order.

It appears to be free from doubt that this must be so since the application of each rule depends upon sufficient cause being shown for non-appearance.

In Ram Saruf v. Gaya Prasad (1) (1925) I.L.R. 48 All. 175. it was held that the High Court could interfere in revision with an appellate order made upon grounds extraneous to Order IX, rule 13; and this decision was approved in Radha Mohan Dalt v. Abbas Ali Biswas (1).(1931) I.L.R. 53 All. 612.

In Haridass Mukerjce v. Bejoy Krishna Das (2)(1929) 34 C.W.N. 222, 223. Page J. said :

"Nevertheless purporting to act ander Order 9, rule 13, C.P.C., and notwithstanding the failure of the Defendant to bring himself within the conditions precedent to the making of an order under Order 9, rule 13, C.P.C., the learned Munsif proceeded to restore the suit upon certain terms. In my opinion in making an order in that form under those circumstances be was acting without jurisdiction and it would not have been open to him, as has been repeatedly beld, to apply the provisions of section 151 (which, indeed, be did not do) where there is a specific provision in the Code applicable to the case in hand."

In Dutt v. Shamsudin Shah Shaheh (3)(1930) 34 C.W.N. 419, 421. Rankin J. said:

"I am by no means satisfied that the learned Subordinate Jadge Icuod or intended to lini that there was a case made out to satisfy Tinie 13 of Order 9 and I entirely dissent from the view that, if no case is made out under that rule, it is open to the learned Jade to enlarie ibe rule by tulking about sectico 151."

It is clear that the samo viow of the law bas prevailed in Madras. A Fúll Bench of that High Court held in Neelaveni v. Narayana Reddi (4)(1919) I.L.R. 43 Mad. 94 ( F. B. ) that the Court has no power outside Order 9 Rule 13 to set aside an ex parte decree passed by itseif. Oldfield J. remarked (at p. 102) :

"It is in my opinion impossible to presume. tbat the rules under consideration contain an imperfect statement of the law on the very definite topic, with which they deal, the provision of a sumunary procedure ior the ro-opening of ar-farle proceedings."

This decision was followed in Manicham Pillai v. Maludam Bathummal (1) 48 Mad. L.J. 152, and in Alagasundara Pillai v. Pichuvier (2)(1929) I.L.R. 52 Mad. 899.

In Arunachella Ayyar v. Subbaramial (3)(1922) I.L.R. 46 Mad. 60. it is clear that the circumstances were such as would enable the Court to find that sufficient cause had been shown within the meaning of the Rule and that the Court did not need to look beyond its terms.

We have had cited to us the case of Lalta Prasad v. Ram Kara (4)(1912) I.L.R. 34 All. 426., a Bench decision, which in view of the later authorities there can be no longer regarded as good law in the United Provinces, in the sense that the reasons given for the decision show that good cause for non-attendance might well have been shown to exist.. 

A pleader was misled into the honest belief that a cause fixed for noon would be heard at 2 o'clock. 

In so far as the decision purports to suggest that powers exist extraneous to those conferred on the Court by Order 9 Rule 13, I must respectfully differ from any such conclusion.

I cannot accept the view that sufficient cause for the restoration of a suit may exist when the plaintiff has failed to appear, unless there has been sufficient cause for his non-appearance, and if the case of Bilasrai Laxminarayan v. Cursondas Damodardas (5)(1919) I.L.R. 44 Bom. 82., is authority for any such proposition I must decline to follow it.

Another Bombay case Sonubai v. Shivajirao (6)(1920) I.L.R. 45 Bom. 648. deals with the re-admission of an appeal under Order 41 Rule 19. A minor failed to appear by reason of the fact that his next friend had to all intents become insane.

This was, of course, not his fault, and I feel unable to extract from the reported judgments any authority for a proposition that the Court could take action outside the provisions of Order 41 Rule 19 which seems to me to have applied.

It may well be the fact that a set of circumstances to which no Rule applies may afford an occasion to the Court for the exercise of its inherent powers under section 151 of the Code of Civil Procedure.

Thus, in Kissen Gopal. Karnani v. Suklal Karnani (1) it was held that the Court could grant relief to a plaintiff whose suit had: been dismissed when he had been adjudicated insolverit and the Official Assignee was not upon the record, but the adjudication had subsequently been annulled. No one had made default in that case.

Froth the decision in U E Maung v. P.A.R.P. Chettyar Firm (2) it is plain that action under the inherent powers of the Court is applicable to those instances in which no provision is made by the Code of Civil Procedure for relief in some special set of circumstances. 

As Baguley J. observed in his judgment, section 151 is not a section which is intended to enable a Judge to repeal, ad hoc, any provision of the law in any particular instance in which he wishes to do so.

It appears that the question to be decided here hasalready been considered in Tun Aung Gyaw v. Burmah Oil Co. (Civil Misc. App. No. 111 of 1929) in which a Bench of this High Court followed the decision in Neelaveni v. Narayana Reddi (3), to which I have already referred. In my respectful opinion the conclusions at which they arrived were amply covered by authority and must be regarded as correct. 

Hence although Carr J. in Mating Saw and eight v. Ma Bwin Byn(4) might perhaps have reached the conclusion at which he arrived by considering the provisions of Order 41 Rule 19, and deciding that there was sufficient cause within the meaning of that Rule, the reasons U ArroGr which he gave for his decision cannot be supported.

If the case of Kotta Venkalaraju Garu v. Maharaja of Pittapuram and others (1) is intended to suggest that Neelaveni v. Narayana Reddi (2) is authority for the proposition that a client can never be permitted to suffer for the default of his advocate, I think it goes too far.

The reasons given there by Cornish J. for dismissing the suit seem to me, with all respect, to be eminently proper. 

Reinstatement in all such cases must depend upon one consideration, and upon one consideration only, namely that which is laid down in the Rule applicable to the particular case. 

Where no sufficient cause is shown for non-appearance there çan be no grounds for the application " ex debito justitia" of any inherent power outside the Rule. 

In the case under review the Order of the learned Subdivisional Judge must accordingly be set aside as being in excess of his jurisdiction, and the suit of the first respondent must stand dismissed for default of appearance. 

The applicant must have his costs as against the first respondent in both Courts, advocate's fee in this Court ten gold mohurs.

အခြားတရားသူကြီး DUNKLEY, J. က၎င်း၏အမြင်နှင့်ဝေဖန်ချက်ကိုစီရင်ထုံးစာမျက်နှာ ၅၂၁ မှ ၅၂၃ အထိအောက်ပါအတိုင်းဖော်ပြသည်-

[ DUNKLEY, J.—I am of the same opinion.

As long ago as 1876 their Lordships of the Privy Council, in Ram Coomar Coondoo and another v. Chunder Canto Mookerjee (3), said that

" when it is urged that the claim should be decided upon general principles of justice, equity and gocd conscience, it is to be observed . . . . that these principles are to be invoked only in cases for which no specific rules may exist."

There are specific rules in tbe Civil Procedure Code dealing with the restoration of cases dismissed for default of appearance or the setting aside of ex parte decrees. 

They are Rules 9 and 13 of Order 9, and Rule 19 of Order 41. 

These rules are in precisely similar terms. 

They lay down that if the party at fault satisfies the Court that there was sufficient cause for his non-appearance when the case was called on for hearing, the Court shall restore the case to the file or set aside the ex parte decree, as the case may be, upon such terms as it thinks fit. 

The argument of the learned Government Advocate for the first respondent is that because these rules imperatively require that the Court shall revoke its previous order when sufficient cause for non-appearance is shown, there must be left over a discretionary power in the Court to re-admit a suit or appeal, or set aside an ex parte decree, even when sufficient cause for non-appcarance has not been shown. 

As authority for this proposition the learned Government Advocate cites the judgment of a single Judge of the Madras High Court in Somayya v. Subbamma (1), which he desires us to follow; but the fallacious reasoning of this judgment was exposed by a Full Bench of the same High Court, which overruled it, in Neelaveni. v. Narayana Reddi (2).. 

The inherent power of a Court, under section 151 of the Civil Procedure Code, can be invoked only where there is no express provision of law applicable to the case. 

There are rules in the Code dealing with the restoration of a case dismissed for default of appearance, and the scope of these rules cannot be enlarged by invoking the inherent power of the Court. Except for the High Court of Bombay, all the Indian High Courts are now unanimous in holding that there is no power to restore a case dismissed for default, or to set aside an ex parte decree, except under the circumstances and conditions mentioned in Rules 9 and 13 of Order 9, and Rule 19 of Order 41. 

A Bench of this Court, in an unreported decision to which my Lord the Chief Justice has referred, came to the same nik conclusion. In support of his decision the learned Subdivisional Judge cited two reported decisions of single Judges of this Court, namely Maung Saw and others v. Ma Bwin Byu (I), and U E Maung v. P.A.R.P. Cheltyar Firm (2). 

In the earlier case the Jearned Judge might well have come to the same conclusion by reference only to the provisions of Order 41, Rule 19, and so far as this decision purports to lay down that a Court has power to restore a case which has been dismissed for default for reasons not falling within the provisions of Order 9, Rule 9, or Order 4I, Rule 19, then I must with the greatest respect dissent from that conclusion. U E Maung's case (2) does not support the conclusion of the learned Subdivisional Judge. 

In that case Baguley J. held that the aid of section 151 of the Code cannot be invoked to restore a suit or set aside an ex parte decree when the party at fault cannot bring his case within the provisions of Order 9, Rule 9 or 13; yet circumstances might arise for which no provision is made in the Code, and in such a very special case the inherent powers of the Court might properly be made use of. With the greatest respect, this is, in my opinion, a correct statement of the law.

In the present case, the learned Advocate for the first respondent endeavoured to show that there was sufficient cause for his non-appearance when the suit was called on for hearing, wilhin Order 9, Rule 9, but failed to show any cause.

The learned Subdivisional Judge therefore acted without jurisdiction in invoking the power given by section 151 of the Code to restore the suit, and this application in revision must be allowed.

အခြားတရားသူကြီး BLAGDEN, J. က၎င်း၏အမြင်နှင့်ဝေဖန်ချက်ကိုစီရင်ထုံးစာမျက်နှာ ၅၂၄ မှ ၅၂၆ အထိအောက်ပါအတိုင်းဖော်ပြသည်-

[  BLAGDEN, J-I entirely agree but, in view of the conflict between the authorities and out of respect to the able arguments to which we have listened, I should like to add a few observations of my own.

It is unnecessary for me to recapitulate the facts in this case or again review the authorities in any detail.

On principle, however, it is obvious that section 151 of the Code of Civil Procedure, which expressly saves from the operation of the Code what it calls " thé inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court", does not empower the Court to make any order which the particular individuals who at a given moment happen to compose it think just or calculated to prevent an abuse of its process.

The words " the ends of justice" and " abuse of the process of the Court" must, in fact, be construed with due regard to the rest of the provisions of the Code, the section being really intended to prevent the Courts being rendered impotent by any omission in the Code. 

It is to be observed that the section empowers the Court to make "necessary orders", and no other orders.

The learned Government Advocate-very wisely, if I may say so with respect—did not contend to the contrary, but took his stand on a position more easily defensible. 

His main point was that the case turned on the construction of Order IX, rule 9. So far, I think he was right. 

This rule, in mandatory terms, directs the Court, if it is satisfied that there was "sufficient cause " for the non-appearance of the plaintiff when his suit was called on for hearing, to take the course which the Subdivisional Court here did take.

The wording of rule 13 of the same Order, dealing with non-appearance of a defendant, is similar, and in particular the words " suficient cause" are repeated.

It has not been contended that there is any material difference between the two rules as far as this case is concerned. 

I mention this only because it so happens that in most of the reported cases the Courts had to deal with rule 13 and not with rule 9.

The respondent's, to my mind, most formidable point was that rule 9, by imposing on the-Court a duty to take a particular course in one event, did not deprive it of a discretion to take the same, or a similar, course in another event.

There must be many cases in which a contention of this kind would be well founded, but I do not think that as regards this particular rule it is. 

Not only, for the reasons stated by my Lord, is the balance of authority against it, but also, if we were not assisted by authority at all, I should have come to the same conclusion. 

The rule enables the Court to rescind what is, after all, its own order, though it is true that it is a default order. 

Such a power is, I think, to be jealously construed, and I cannot help feeling that, if the Legislature had meant what the learned Government Advocate submits it meant, it would most certainly have expressed itself differentiy; to the extent at any rate of using the quite common expression "may, and shall if etc.," instead of the one word "shall ".

Moreover, it has to be borne in mind once again that section 151 empowers the Court only to make "necessary " orders.

I fnd myself quite unable to imagine a case in which a plaintiff was, when his case was called on, absent for insufficient cause and yet it was necessary for the ends of justice that a penalty less severe than that which rule 8 contemplates should be inflicted on him. 

The learned Government Advocate was asked by my Lord to suggest such a case and it to some extent assures me that my powers of imagination are not failing me that he was quite unable to do so. 

The apparent severity of the penalty contemplated THe is certainly not in itself a ground for saying that it is " necessary " that it should not be inflicted.

It is quite true that in several of the authorities cited to us the existence of the inherent powers of the Court to reverse its own orders, where those orders have been pronounced through the non-appearance of a party, was expressly affirmed, though in others it is expressly denied. 

I find it more significant than surprising that in every one of the former cases to which our attention has been called the observation about inherent powers was really unnecessary to the decision, in the sense that the same result might have been reached had the Court proceeded under the rule itself, the non-appearance in question being due to such accidents as fog, insanity, minority, or a combination of them, and not, as here, to the representative of a party having run a risk which, by a slight margin of five minutes, turned against him.

I will only add that I am not impressed by the argument that the Subdivisional Court found as a fact there was here sufficient cause for the absence of the Government of Burma at the time that its suit was called on, when not only did the Court not say so (and indeed proceeded rather on the contrary assumption) but also when there was, in my opinion, no evidence at all on which that Court could properly have so found. ]

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1991 BLR 96 စီရင်ထုံးအား 1940 RLR 512 ( F B ) စီရင်ထုံးနှင့်ယှဉ်ဖတ်ပါရန်စာဖတ်သူဥပဒေပညာရှင်များအားတိုက်တွန်းအပ်ပါသည်။

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