Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 5 August, 2011
th
%
Date of decision: 19 September, 2011
+ FAO(OS) 502/2009
LT. COL S.D. SURIE …..Appellant
Through: Mr. Ashok Sethi, Advocate.
-versus-
PARAMOUNT ENTERPRISES AND ORS. .....Respondents
Through: Mr. B. Mohan and Mr. Shant
Kumar Jain, Advocates.
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be allowed to see
the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in
the Digest? Yes.
J U D G M E N T
SIDDHARTH MRIDUL, J.
th
1. The present Appeal assails the order dated 8 September,
2009 passed by the learned Single Judge. By the impugned
order, the learned Single Judge disposed of an interim
FAO (OS) 502/2009 Page 1 of 19
application captioned as I.A. No.3697/2009 in CS (OS)
788/1993.
2. This interim application was filed by the Defendants No.1
to 8/Respondents herein (hereafter referred to as Defendants 1
to 8) under Section 151 of the Code of Civil Procedure (CPC),
th
1908 for the purpose of recalling the order dated 8 April, 2008
passed by this Court.
3. Brief facts leading upto the filing of the present Appeal
are as follows:-
(a) The Appellant filed a Suit for Declaration claiming
that the alienation and sale certificate of property
No.6, Amrita Shergil Marg, New Delhi (suit
rd
property), as void, illegal and ineffective qua 1/3
share of the Appellant as the same does not belong
to the Respondents.
(b) The Appellant claims the suit property to be built by
his father and subsequently rented out to one Sh.
B.M. Patel.
(c) The Appellant’s father died in the year 1972 and
pursuant thereto the Appellant and his two brothers
FAO (OS) 502/2009 Page 2 of 19
initiated a Suit for Eviction against the tenant, the
aforesaid B.M. Patel.
(d) The father of the Appellant left behind a Will which
th
was duly probated by this Court’s order dated 29
February, 1980. The effect of granting of probate
rd
was entitling the Appellant to be the owner of 1/3
share in the suit property. However, the Probate
Court while granting probate directed the auction of
the suit property through a Court Auctioneer so as
to enable the division of property according to Will.
The Appellant asserted in the suit that the Probate
Court lacked jurisdiction to pass such an order and
that too by relying upon facts which were wholly
misrepresented and fabricated.
(e) In that situation, the Appellant filed an interim
application captioned as I.A. No.516/1994 under
Order VI Rule 17 CPC praying for permission of the
Court to allow amendment of the Appellant so as to
incorporate the alternate relief of partition.
(f) I.A. No.516/1994 came to be allowed by the Court
th
vide order dated 26 May, 2006. The said order
FAO (OS) 502/2009 Page 3 of 19
th
dated 26 May, 2006 required the Appellant to file
the Amended Plaint within two weeks of passing of
the said order and thereafter the Defendant Nos.1 to
8 were directed to file their Written Statement to
the amended plaint within four weeks. The matter
was thereafter adjourned from time to time.
(g) In the meanwhile, the Court directed impleadment
th
of Defendant No.9 vide order dated 19 January,
2007 and consequently permitted the Appellant to
file Amended Memo of Parties as well as Amended
th
Plaint within one week. The said order dated 19
January, 2007 also directed the Defendant Nos.1 to
8 to file their Written Statement within eight weeks
thereafter.
nd
(h) On 2 February, 2007 the Court corrected a
th
typographical error in the order dated 19 January,
2007 and summons were issued to Defendant No.9.
(i) The matter came to be listed before the Joint
th
Registrar on the 30 April, 2007 wherein it was
noted that the Amended Written Statement (i.e.
Written Statement to the Amended Plaint) on behalf
FAO (OS) 502/2009 Page 4 of 19
of Defendant Nos.1 to 8 was not on record and,
therefore, if the Defendants required to file the
same, leave had to be sought from the Court on
account of delay in filing the Amended Written
Statement.
th
(j) On the 14 May, 2007, counsel for the Defendant
Nos.1 to 8 submitted that the Amended Written
Statement could not be filed for want of instructions
from the clients. Thereafter, the matter was
adjourned on several occasions.
(k) However, when the matter came to be considered on
th
the 8 April, 2008, the learned Single Judge
observed that Defendant Nos.1 to 8 were in
th
possession of a copy of the amended plaint since 8
February, 2007 and yet no Amended Written
Statement had been filed on their behalf. On the
same date, the learned Single Judge after due
consideration of the purported reasons supplied by
the Defendants for non-filing of Amended Written
Statement, closed the right of the defendants to file
the Amended Written Statement.
FAO (OS) 502/2009 Page 5 of 19
(l) Defendants Nos.1 to 8 were informed of the order
th
dated 8 April, 2008 by their counsel through letter
nd
dated 22 April, 2008.
th
(m) On the 13 March, 2009 the Defendants filed I.A.
No.3697/2009 under Section 151 of CPC for
th
recalling the order dated 8 April, 2008. The
disposal of I.A. No.3697/2009 by the learned Single
th
Judge vide Order dated 8 September, 2009 is the
order impugned before us.
(n) The contentions raised by the Defendant No.1 to 8 in
the said I.A. primarily rested upon the facts that
there had been a delay of eight months on behalf of
the Appellant in filing the amended plaint.
Defendant No.1 to 8 also sought to explain the
reasons for delay in non-filing of the Amended
Written Statement within the requisite time frame
as prescribed by this Court. The Defendant No.1 to
8 contended that due to the pendency of the suit for
a long time and subsequent changes in the
management of the Defendants as well as the
change in the counsel appearing, the delay occurred
FAO (OS) 502/2009 Page 6 of 19
in filing of the Amended Written Statement. The
Appellant objected to the application on the ground
that it was hopelessly time barred and the order
th
dated 8 April, 2008 was a well reasoned order and
hence requires no interference. The Appellant also
challenged the maintainability of the application
under Section 151 of the CPC thereby invoking
inherent powers of the Court in assailing an order
striking of the defence, which is an appealable order
under Order XLIII CPC.
4. Counsel appearing on behalf of the Appellant relied on the
following case law:-
(i) Shah Babulal Khimji –vs- Jayaben D. Kania &
Anr., AIR 1981 SC 1786.
(ii) Swadeshi Polytax Ltd. –vs- V.K. Goel & Ors., AIR
1987 DELHI 260.
(iii) State of U.P. –vs- Roshan Singh, AIR 2008 SC
1190.
5. On the other hand, Defendants 1 to 8 relied on the
following decisions:-
(i) AIR 1977 SC 1348, M/s. Jaipur Mineral
Development Syndicate –vs- C.I.T.
(ii) 38 (1989) DLT 129, Arvind Construction Co. &
Ors. –vs- UOI & Ors.
(iii) R.D. Extrusions –vs- Haryana State Electricity
Board, (2005) 12 SCC 346.
FAO (OS) 502/2009 Page 7 of 19
(iv) Rupa Ashok Hurra –vs- Ashok Hurra & Anr.,
2002 (3) SCALE 406.
(v) 1993 Supp. (4) SCC 596, M. Shankaraiah & Anr.
–vs- State of Karnataka & Ors.
6. Before proceeding further it would be relevant to extract
th
the order dated 8 April, 2008 which was recalled by the
impugned order. The said order reads as follows:-
th
“Vide order dated 26 May, 2006, the application
filed by the plaintiff seeking amendment of the
plaint was allowed, subject to costs of Rs.2000/-.
However, written statement to the amended plaint
has not been filed by the defendants till date.
th
Vide order dated 19 January, 2007, defendants
No.1 to 8 were directed to file their written
statement to the amended plaint within eight weeks.
th
Vide order dated 14 May, 2007, it was recorded on
behalf of the defendants No.1 to 8 that the written
statement to the amended plaint could not be filed
for want of instructions from his client. Counsel for
the defendants No.1 to 8 was directed to place on
record the notice issued by him to the Defendants
No.1 to 8. The said notice has not been placed on
the record till date.
There is no justification for granting further time to
the defendants No.1 to 8 to file their written
statement to the amended plaint. Accordingly the
right of the defendants No.1 to 8 to file written
statement to the amended plaint is closed.”
7. It is also relevant to observe that the learned Single Judge
after considering the decisions in Shah Babulal Khimji
(supra) and Swadeshi Polytax Ltd. (supra) , cited on behalf of
the Appellant, came to the conclusion “that the order dated
FAO (OS) 502/2009 Page 8 of 19
th
8 April, 2008 is an appealable order but the Defendants No.1
to 8 have failed to challenge the same.” However, after
considering the decisions in Roshan Singh’s (supra) , a case
cited on behalf of the Appellant, the learned Single Judge in the
impugned order held that “this Court is of the view that each
case under the present situation shall be judged upon its own
peculiar circumstances. By not allowing the present application
it would affect the rights of the Defendants directly, insofar as if
they are not permitted to file the amended written statement,
their interests will be severely affected. Also this Court has
power to allow such an application by virtue of its inherent
powers under Section 151 of the CPC.”
8. In view of the above, the learned Single Judge allowed the
application and permitted the Defendants No.1 to 8 to file the
Amended Written Statement. The issue that arises before us is
whether the inherent jurisdiction of the Court under Section 151
of the CPC can be exercised when a party has a remedy by way
of an Appeal and has neglected to avail himself of the same.
9. In order to determine this issue it is necessary inter alia to
refer to the decisions relied upon by the respective parties in
this behalf.
FAO (OS) 502/2009 Page 9 of 19
10. In support of their contention that Section 151 of the CPC
th
could be invoked to recall the order dated 8 April, 2008, the
Defendants No.1 to 8 first relied on the decision in M/s. Jaipur
Mineral Development Syndicate (supra) . In that matter the
High Court had declined to answer the reference for non-
appearance on behalf of the Petitioner. The Supreme Court
held that there was nothing in any of the provisions of the
Income Tax Act which either expressly or by necessary
implication stood in the way of the High Court from passing an
order for disposal of the reference on merits and that since the
reference was dismissed on account of non-appearance of a
party, the exercise of Section 151 CPC to recall the order by the
High Court was permissible. This judgment does not come to
the aid of the Defendants since it does not deal with the issue
before us.
11. Next the Defendants 1 to 8 relied upon the decision of a
Single Judge of this Court in Arvind Construction Co. & Ors.
(supra) . However, in this matter the issue before the Court
was that in respect of Section 35 B of the CPC, no specific
provision has been made thereby permitting the defaulting
party to move an application. Therefore, it was held that
FAO (OS) 502/2009 Page 10 of 19
Section 151 of the CPC would be attracted and if the Court is
satisfied that there was sufficient cause for the defaulting party
for not paying the costs on the date fixed, the Court under its
inherent jurisdiction could recall the order, and under Section
148 of the CPC, enlarge the time for making the payment. This
decision also does not assist the case of the Defendants 1 to 8,
insofar as, in this case there was no provision available for the
party to seek a recourse for redressal and, therefore, the
inherent powers under Section 151 of CPC were held to be
exercisable.
12. The next is decision of the Supreme Court in R.D.
Extrusions (supra) . With utmost respect, we note that the
order does not lay down any law with regard to the issue at
hand and the Supreme Court merely issued directions to
provide relief to a party aggrieved by recall in the facts of that
case.
13. The Defendants 1 to 8 next relied on Rupa Ashok Hurra
(supra) . This decision of the Supreme Court was passed on a
Curative Petition and upheld the powers of the Hon’ble
Supreme Court to review its own judgment in extraordinary
FAO (OS) 502/2009 Page 11 of 19
circumstances in order to prevent abuse of its process and to
cure gross miscarriage of justice.
14. On behalf of the Appellant reliance was placed on the
decision in Roshan Singh’s (supra) case where the Supreme
Court in Paragraph 7 of the report observed as follows:-
“7. The principles which regulate the exercise of
inherent powers by a court have been highlighted in
many cases. In matters with which the CPC does
not deal with, the Court will exercise its inherent
power to do justice between the parties which is
warranted under the circumstances and which the
necessities of the case require. If there are specific
provisions of the CPC dealing with the particular
topic and they expressly or by necessary implication
exhaust the scope of the powers of the Court or the
jurisdiction that may be exercised in relation to a
matter, the inherent powers of the Court cannot be
invoked in order to cut across the powers conferred
by the CPC. The inherent powers of the Court are
not to be used for the benefit of a litigant who has
remedy under the CPC. Similar is the position vis-à-
vis other statutes. The object of Section 151, CPC is
to supplement and not to replace the remedies
provided for in the CPC. Section 151, CPC will not
be available when there is alternative remedy and
same is accepted to be a well-settled ratio of law.
The operative field of power being thus restricted,
the same cannot be risen to inherent power. The
inherent powers of the Court are in addition to the
powers specifically conferred to it. If there are
express provisions covering a particular topic, such
power cannot be exercised in that regard. The
section confers on the Court power of making such
orders as may be necessary for the ends of justice of
the Court. Section 151 CPC cannot be invoked when
there is express provision even under which the
FAO (OS) 502/2009 Page 12 of 19
relief can be claimed by the aggrieved party. The
power can only be invoked to supplement the
provisions of the Code and not to override or evade
other express provisions. The position is not
different so far as the other statutes are concerned.
Undisputedly, an aggrieved person is not remediless
less under the Act. “
15. We need not dilate on the decisions in Shah Babulal
Khimji (supra) and Swadeshi Polytax Ltd. (supra) , cited on
behalf of the Appellants, since the learned Single Judge in the
impugned order had come to a conclusion that, the Appellants
before the learned Single Judge had correctly contended that
th
the order dated 8 April, 2008 was an appealable order.
16. Also in K.K. Velusamy –vs- N. Palanisamy, 2011 (4)
SCALE 61 the Hon’ble Supreme Court after considering the
scope of Section 151 CPC as explained by the Supreme Court in
several decisions summarized the said powers thus:-
“(a) Section 151 is not a substantive provision which
creates or confers any power or jurisdiction on
courts. It merely recognizes the discretionary power
inherent in every court as a necessary corollary for
rendering justice in accordance with law, to do what
is 'right' and undo what is 'wrong', that is, to do all
things necessary to secure the ends of justice and
prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive,
Section 151 recognizes and confirms that if the
Code does not expressly or impliedly cover any
FAO (OS) 502/2009 Page 13 of 19
particular procedural aspect, the inherent power
can be used to deal with such situation or aspect, if
the ends of justice warrant it. The breadth of such
power is co-extensive with the need to exercise such
power on the facts and circumstances.
(c) A Court has no power to do that which is
prohibited by law or the Code, by purported exercise
of its inherent powers. If the Code contains
provisions dealing with a particular topic or aspect,
and such provisions either expressly or necessary
implication exhaust the scope of the power of the
court or the jurisdiction that may exercised in
relation to that matter, the inherent power cannot
be invoked in order to cut across the powers
conferred by the Code or a manner inconsistent with
such provisions. In other words the court cannot
make use of the special provisions of Section 151 of
the Code, where the remedy or procedure is
provided in the Code.
(d) The inherent powers of the court being
complementary to the powers specifically conferred,
a court is free to exercise them for the purposes
mentioned in Section 151 of the Code when the
matter is not covered by any specific provision in the
Code and the exercise of those powers would not in
any way be in conflict with what has been expressly
provided in the Code or be against the intention of
the Legislature.
(e) While exercising the inherent power, the court
will be doubly cautious, as there is no legislative
guidance to deal with the procedural situation and
the exercise of power depends upon the discretion
and wisdom of the court, and the facts and
circumstances of the case. The absence of an
express provision in the code and the recognition
and saving of the inherent power of a court, should
not however be treated as a carte blanche to grant
any relief.
FAO (OS) 502/2009 Page 14 of 19
(f) The power under Section 151 will have to be used
with circumspection and care, only where it is
absolutely necessary, when there is no provision in
the Code governing the matter, when the bona fides
of the applicant cannot be doubted, when such
exercise is to meet the ends of justice and to prevent
abuse of process of court.
17. Further, in Nainsingh –vs- Koonwarjee, AIR 1970 SC
997 in para 4 of the report the Supreme Court had held as
follows:-
“4. The High Court, in our opinion, erred in
holding that the correctness of the remand order
was open to review by it. The order in question was
made under rule 23, Order 41, Civil Procedure
Code. That order was appealable under Order 43 of
that Code. As the same was not appealed against, its
correctness was no more open to examination in
view of Section 105(2) of the Code which lays down
that where any party aggrieved by an order of
remand from which an appeal lies does not appeal
therefrom he shall thereafter be precluded from
disputing its correctness. The High Court has
misconceived the scope of its inherent powers.
Under the inherent power of courts recognized by
Section 151, CPC, a court has no power to do that
which is prohibited by the Code. Inherent
jurisdiction of the court must be exercised subject to
the rule that if the Code does contain specific
provisions which would meet the necessities of the
case, such provisions should be followed and
inherent jurisdiction should not be invoked. In other
words the court cannot make use of the special
provisions of Section 151 of the Code where a party
had his remedy provided elsewhere in the Code and
he neglected to avail himself of the same. Further
the power under Section 151 of the Code cannot be
exercised as an appellate power.”
FAO (OS) 502/2009 Page 15 of 19
18. In the present case it is observed that vide order dated
th
26 May, 2006, the application filed by the Appellant seeking
amendment of the plaint was allowed. Further, it is observed
th
that vide order dated 19 January, 2007, the Defendants No.1 to
8 were directed to file their Written Statement to the amended
th
plaint within eight weeks. Vide order dated 14 May, 2007 it
was recorded on behalf of the Defendants No.1 to 8 that the
Written Statement to the amended plaint could not be filed for
want of instructions from the said Defendants. Finally, on
th
8 April, 2008, the learned Single Judge recorded that there
was no justification for giving more time and, therefore, closed
the right of the Defendants No.1 to 8 to file a Written Statement
to the amended plaint. It is also noticed that the Defendants
th
No.1 to 8 were informed of the order dated 8 April, 2008 by
nd
their counsel through letter dated 22 April, 2008, yet the
th
Defendants No.1 to 8 did not take any action till 18 March,
2009. In the impugned order the learned Single Judge came to
th
the conclusion “that the order dated 8 April, 2008 is an
appealable order but the Defendants No.1 to 8 have failed to
challenge the same.” Instead of filing an Appeal against the
FAO (OS) 502/2009 Page 16 of 19
th
order dated 8 April, 2008, the Defendants No.1 to 8 after
almost one year filed I.A. No.3637/2009 seeking “recall” of the
th
order dated 8 April, 2008 under Section 151 of the CPC.
19. In Nain Singh (supra) , the Hon’ble Supreme Court held
that when an Appeal is maintainable against an order and the
same has not been appealed against, the party aggrieved by
such an order is thereafter precluded from disputing its
correctness. In the instant case the impugned order held that
th
an Appeal was maintainable against the order dated 8 April,
2008. The Defendants 1 to 8 have not impugned or assailed the
said finding by the learned Single Judge, by way of an Appeal.
The Hon’ble Supreme Court further held that the Court cannot
make use of the special provisions of Section 151 of the CPC,
where a party had his remedy provided elsewhere in the Code,
and has neglected to avail himself of the same. The Supreme
Court, in Roshan Singh’s case (supra), also observed that the
inherent powers of the Court are not to be used for the benefit
of the litigant who has the remedy under the CPC, and that the
object of Section 151 CPC is to supplement and not to replace
the remedies provided for in the CPC. Thus, it has been
observed that Section 151 CPC will not be available when there
FAO (OS) 502/2009 Page 17 of 19
is a specific alternative remedy, and the same is accepted to be
a well settled principle of law. The operative field of power
being thus restricted, the same does not entitle the exercise of
inherent power.
20. Then a submission was made on behalf of counsel for the
Defendants No.1 to 8 that the present Appeal was not
maintainable on the ground that it was against an order
permitting “recall” under Section 151 of the CPC. There is no
force in the said submission on behalf of the Defendants No.1 to
8 for two reasons. Firstly , the impugned order was in the
th
nature of a review of the order dated 8 April, 2008. An order
granting review is an appealable order under Order XLVII Rule
7 of the CPC, thus the present Appeal is maintainable against
th
the impugned Order. Secondly, the order dated 8 April, 2008
sought to negate valuable rights that had accrued and vested in
the Appellants, when the Defendants 1 to 8 did not prefer an
th
Appeal against the order dated 8 April, 2008 closing its right to
file a Written Statement to the amended plaint. (Re: AIR 1935
CAL 336 (2) Saratchandra Sen –vs- Mrityunjay Ray
Chaudhari.)
FAO (OS) 502/2009 Page 18 of 19
21. In view of the discussion above and the acceptance by the
learned Single Judge of the appealability and finality of the
th
order dated 8 April, 2008, it follows that such an order could
not be recalled by resort to Section 151 of the CPC after a
period of one year had elapsed, and the said recall under
Section 151 of the CPC was unwarranted and impermissible.
Resultantly, the Appeal is allowed and the impugned order
th
dated 8 September, 2009 is set aside. No costs.
SIDDHARTH MRIDUL, J.
BADAR DURREZ AHMED, J.
SEPTEMBER 19, 2011
dn
FAO (OS) 502/2009 Page 19 of 19
th
Reserved on: 5 August, 2011
th
%
Date of decision: 19 September, 2011
+ FAO(OS) 502/2009
LT. COL S.D. SURIE …..Appellant
Through: Mr. Ashok Sethi, Advocate.
-versus-
PARAMOUNT ENTERPRISES AND ORS. .....Respondents
Through: Mr. B. Mohan and Mr. Shant
Kumar Jain, Advocates.
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether reporters of local papers may be allowed to see
the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in
the Digest? Yes.
J U D G M E N T
SIDDHARTH MRIDUL, J.
th
1. The present Appeal assails the order dated 8 September,
2009 passed by the learned Single Judge. By the impugned
order, the learned Single Judge disposed of an interim
FAO (OS) 502/2009 Page 1 of 19
application captioned as I.A. No.3697/2009 in CS (OS)
788/1993.
2. This interim application was filed by the Defendants No.1
to 8/Respondents herein (hereafter referred to as Defendants 1
to 8) under Section 151 of the Code of Civil Procedure (CPC),
th
1908 for the purpose of recalling the order dated 8 April, 2008
passed by this Court.
3. Brief facts leading upto the filing of the present Appeal
are as follows:-
(a) The Appellant filed a Suit for Declaration claiming
that the alienation and sale certificate of property
No.6, Amrita Shergil Marg, New Delhi (suit
rd
property), as void, illegal and ineffective qua 1/3
share of the Appellant as the same does not belong
to the Respondents.
(b) The Appellant claims the suit property to be built by
his father and subsequently rented out to one Sh.
B.M. Patel.
(c) The Appellant’s father died in the year 1972 and
pursuant thereto the Appellant and his two brothers
FAO (OS) 502/2009 Page 2 of 19
initiated a Suit for Eviction against the tenant, the
aforesaid B.M. Patel.
(d) The father of the Appellant left behind a Will which
th
was duly probated by this Court’s order dated 29
February, 1980. The effect of granting of probate
rd
was entitling the Appellant to be the owner of 1/3
share in the suit property. However, the Probate
Court while granting probate directed the auction of
the suit property through a Court Auctioneer so as
to enable the division of property according to Will.
The Appellant asserted in the suit that the Probate
Court lacked jurisdiction to pass such an order and
that too by relying upon facts which were wholly
misrepresented and fabricated.
(e) In that situation, the Appellant filed an interim
application captioned as I.A. No.516/1994 under
Order VI Rule 17 CPC praying for permission of the
Court to allow amendment of the Appellant so as to
incorporate the alternate relief of partition.
(f) I.A. No.516/1994 came to be allowed by the Court
th
vide order dated 26 May, 2006. The said order
FAO (OS) 502/2009 Page 3 of 19
th
dated 26 May, 2006 required the Appellant to file
the Amended Plaint within two weeks of passing of
the said order and thereafter the Defendant Nos.1 to
8 were directed to file their Written Statement to
the amended plaint within four weeks. The matter
was thereafter adjourned from time to time.
(g) In the meanwhile, the Court directed impleadment
th
of Defendant No.9 vide order dated 19 January,
2007 and consequently permitted the Appellant to
file Amended Memo of Parties as well as Amended
th
Plaint within one week. The said order dated 19
January, 2007 also directed the Defendant Nos.1 to
8 to file their Written Statement within eight weeks
thereafter.
nd
(h) On 2 February, 2007 the Court corrected a
th
typographical error in the order dated 19 January,
2007 and summons were issued to Defendant No.9.
(i) The matter came to be listed before the Joint
th
Registrar on the 30 April, 2007 wherein it was
noted that the Amended Written Statement (i.e.
Written Statement to the Amended Plaint) on behalf
FAO (OS) 502/2009 Page 4 of 19
of Defendant Nos.1 to 8 was not on record and,
therefore, if the Defendants required to file the
same, leave had to be sought from the Court on
account of delay in filing the Amended Written
Statement.
th
(j) On the 14 May, 2007, counsel for the Defendant
Nos.1 to 8 submitted that the Amended Written
Statement could not be filed for want of instructions
from the clients. Thereafter, the matter was
adjourned on several occasions.
(k) However, when the matter came to be considered on
th
the 8 April, 2008, the learned Single Judge
observed that Defendant Nos.1 to 8 were in
th
possession of a copy of the amended plaint since 8
February, 2007 and yet no Amended Written
Statement had been filed on their behalf. On the
same date, the learned Single Judge after due
consideration of the purported reasons supplied by
the Defendants for non-filing of Amended Written
Statement, closed the right of the defendants to file
the Amended Written Statement.
FAO (OS) 502/2009 Page 5 of 19
(l) Defendants Nos.1 to 8 were informed of the order
th
dated 8 April, 2008 by their counsel through letter
nd
dated 22 April, 2008.
th
(m) On the 13 March, 2009 the Defendants filed I.A.
No.3697/2009 under Section 151 of CPC for
th
recalling the order dated 8 April, 2008. The
disposal of I.A. No.3697/2009 by the learned Single
th
Judge vide Order dated 8 September, 2009 is the
order impugned before us.
(n) The contentions raised by the Defendant No.1 to 8 in
the said I.A. primarily rested upon the facts that
there had been a delay of eight months on behalf of
the Appellant in filing the amended plaint.
Defendant No.1 to 8 also sought to explain the
reasons for delay in non-filing of the Amended
Written Statement within the requisite time frame
as prescribed by this Court. The Defendant No.1 to
8 contended that due to the pendency of the suit for
a long time and subsequent changes in the
management of the Defendants as well as the
change in the counsel appearing, the delay occurred
FAO (OS) 502/2009 Page 6 of 19
in filing of the Amended Written Statement. The
Appellant objected to the application on the ground
that it was hopelessly time barred and the order
th
dated 8 April, 2008 was a well reasoned order and
hence requires no interference. The Appellant also
challenged the maintainability of the application
under Section 151 of the CPC thereby invoking
inherent powers of the Court in assailing an order
striking of the defence, which is an appealable order
under Order XLIII CPC.
4. Counsel appearing on behalf of the Appellant relied on the
following case law:-
(i) Shah Babulal Khimji –vs- Jayaben D. Kania &
Anr., AIR 1981 SC 1786.
(ii) Swadeshi Polytax Ltd. –vs- V.K. Goel & Ors., AIR
1987 DELHI 260.
(iii) State of U.P. –vs- Roshan Singh, AIR 2008 SC
1190.
5. On the other hand, Defendants 1 to 8 relied on the
following decisions:-
(i) AIR 1977 SC 1348, M/s. Jaipur Mineral
Development Syndicate –vs- C.I.T.
(ii) 38 (1989) DLT 129, Arvind Construction Co. &
Ors. –vs- UOI & Ors.
(iii) R.D. Extrusions –vs- Haryana State Electricity
Board, (2005) 12 SCC 346.
FAO (OS) 502/2009 Page 7 of 19
(iv) Rupa Ashok Hurra –vs- Ashok Hurra & Anr.,
2002 (3) SCALE 406.
(v) 1993 Supp. (4) SCC 596, M. Shankaraiah & Anr.
–vs- State of Karnataka & Ors.
6. Before proceeding further it would be relevant to extract
th
the order dated 8 April, 2008 which was recalled by the
impugned order. The said order reads as follows:-
th
“Vide order dated 26 May, 2006, the application
filed by the plaintiff seeking amendment of the
plaint was allowed, subject to costs of Rs.2000/-.
However, written statement to the amended plaint
has not been filed by the defendants till date.
th
Vide order dated 19 January, 2007, defendants
No.1 to 8 were directed to file their written
statement to the amended plaint within eight weeks.
th
Vide order dated 14 May, 2007, it was recorded on
behalf of the defendants No.1 to 8 that the written
statement to the amended plaint could not be filed
for want of instructions from his client. Counsel for
the defendants No.1 to 8 was directed to place on
record the notice issued by him to the Defendants
No.1 to 8. The said notice has not been placed on
the record till date.
There is no justification for granting further time to
the defendants No.1 to 8 to file their written
statement to the amended plaint. Accordingly the
right of the defendants No.1 to 8 to file written
statement to the amended plaint is closed.”
7. It is also relevant to observe that the learned Single Judge
after considering the decisions in Shah Babulal Khimji
(supra) and Swadeshi Polytax Ltd. (supra) , cited on behalf of
the Appellant, came to the conclusion “that the order dated
FAO (OS) 502/2009 Page 8 of 19
th
8 April, 2008 is an appealable order but the Defendants No.1
to 8 have failed to challenge the same.” However, after
considering the decisions in Roshan Singh’s (supra) , a case
cited on behalf of the Appellant, the learned Single Judge in the
impugned order held that “this Court is of the view that each
case under the present situation shall be judged upon its own
peculiar circumstances. By not allowing the present application
it would affect the rights of the Defendants directly, insofar as if
they are not permitted to file the amended written statement,
their interests will be severely affected. Also this Court has
power to allow such an application by virtue of its inherent
powers under Section 151 of the CPC.”
8. In view of the above, the learned Single Judge allowed the
application and permitted the Defendants No.1 to 8 to file the
Amended Written Statement. The issue that arises before us is
whether the inherent jurisdiction of the Court under Section 151
of the CPC can be exercised when a party has a remedy by way
of an Appeal and has neglected to avail himself of the same.
9. In order to determine this issue it is necessary inter alia to
refer to the decisions relied upon by the respective parties in
this behalf.
FAO (OS) 502/2009 Page 9 of 19
10. In support of their contention that Section 151 of the CPC
th
could be invoked to recall the order dated 8 April, 2008, the
Defendants No.1 to 8 first relied on the decision in M/s. Jaipur
Mineral Development Syndicate (supra) . In that matter the
High Court had declined to answer the reference for non-
appearance on behalf of the Petitioner. The Supreme Court
held that there was nothing in any of the provisions of the
Income Tax Act which either expressly or by necessary
implication stood in the way of the High Court from passing an
order for disposal of the reference on merits and that since the
reference was dismissed on account of non-appearance of a
party, the exercise of Section 151 CPC to recall the order by the
High Court was permissible. This judgment does not come to
the aid of the Defendants since it does not deal with the issue
before us.
11. Next the Defendants 1 to 8 relied upon the decision of a
Single Judge of this Court in Arvind Construction Co. & Ors.
(supra) . However, in this matter the issue before the Court
was that in respect of Section 35 B of the CPC, no specific
provision has been made thereby permitting the defaulting
party to move an application. Therefore, it was held that
FAO (OS) 502/2009 Page 10 of 19
Section 151 of the CPC would be attracted and if the Court is
satisfied that there was sufficient cause for the defaulting party
for not paying the costs on the date fixed, the Court under its
inherent jurisdiction could recall the order, and under Section
148 of the CPC, enlarge the time for making the payment. This
decision also does not assist the case of the Defendants 1 to 8,
insofar as, in this case there was no provision available for the
party to seek a recourse for redressal and, therefore, the
inherent powers under Section 151 of CPC were held to be
exercisable.
12. The next is decision of the Supreme Court in R.D.
Extrusions (supra) . With utmost respect, we note that the
order does not lay down any law with regard to the issue at
hand and the Supreme Court merely issued directions to
provide relief to a party aggrieved by recall in the facts of that
case.
13. The Defendants 1 to 8 next relied on Rupa Ashok Hurra
(supra) . This decision of the Supreme Court was passed on a
Curative Petition and upheld the powers of the Hon’ble
Supreme Court to review its own judgment in extraordinary
FAO (OS) 502/2009 Page 11 of 19
circumstances in order to prevent abuse of its process and to
cure gross miscarriage of justice.
14. On behalf of the Appellant reliance was placed on the
decision in Roshan Singh’s (supra) case where the Supreme
Court in Paragraph 7 of the report observed as follows:-
“7. The principles which regulate the exercise of
inherent powers by a court have been highlighted in
many cases. In matters with which the CPC does
not deal with, the Court will exercise its inherent
power to do justice between the parties which is
warranted under the circumstances and which the
necessities of the case require. If there are specific
provisions of the CPC dealing with the particular
topic and they expressly or by necessary implication
exhaust the scope of the powers of the Court or the
jurisdiction that may be exercised in relation to a
matter, the inherent powers of the Court cannot be
invoked in order to cut across the powers conferred
by the CPC. The inherent powers of the Court are
not to be used for the benefit of a litigant who has
remedy under the CPC. Similar is the position vis-à-
vis other statutes. The object of Section 151, CPC is
to supplement and not to replace the remedies
provided for in the CPC. Section 151, CPC will not
be available when there is alternative remedy and
same is accepted to be a well-settled ratio of law.
The operative field of power being thus restricted,
the same cannot be risen to inherent power. The
inherent powers of the Court are in addition to the
powers specifically conferred to it. If there are
express provisions covering a particular topic, such
power cannot be exercised in that regard. The
section confers on the Court power of making such
orders as may be necessary for the ends of justice of
the Court. Section 151 CPC cannot be invoked when
there is express provision even under which the
FAO (OS) 502/2009 Page 12 of 19
relief can be claimed by the aggrieved party. The
power can only be invoked to supplement the
provisions of the Code and not to override or evade
other express provisions. The position is not
different so far as the other statutes are concerned.
Undisputedly, an aggrieved person is not remediless
less under the Act. “
15. We need not dilate on the decisions in Shah Babulal
Khimji (supra) and Swadeshi Polytax Ltd. (supra) , cited on
behalf of the Appellants, since the learned Single Judge in the
impugned order had come to a conclusion that, the Appellants
before the learned Single Judge had correctly contended that
th
the order dated 8 April, 2008 was an appealable order.
16. Also in K.K. Velusamy –vs- N. Palanisamy, 2011 (4)
SCALE 61 the Hon’ble Supreme Court after considering the
scope of Section 151 CPC as explained by the Supreme Court in
several decisions summarized the said powers thus:-
“(a) Section 151 is not a substantive provision which
creates or confers any power or jurisdiction on
courts. It merely recognizes the discretionary power
inherent in every court as a necessary corollary for
rendering justice in accordance with law, to do what
is 'right' and undo what is 'wrong', that is, to do all
things necessary to secure the ends of justice and
prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive,
Section 151 recognizes and confirms that if the
Code does not expressly or impliedly cover any
FAO (OS) 502/2009 Page 13 of 19
particular procedural aspect, the inherent power
can be used to deal with such situation or aspect, if
the ends of justice warrant it. The breadth of such
power is co-extensive with the need to exercise such
power on the facts and circumstances.
(c) A Court has no power to do that which is
prohibited by law or the Code, by purported exercise
of its inherent powers. If the Code contains
provisions dealing with a particular topic or aspect,
and such provisions either expressly or necessary
implication exhaust the scope of the power of the
court or the jurisdiction that may exercised in
relation to that matter, the inherent power cannot
be invoked in order to cut across the powers
conferred by the Code or a manner inconsistent with
such provisions. In other words the court cannot
make use of the special provisions of Section 151 of
the Code, where the remedy or procedure is
provided in the Code.
(d) The inherent powers of the court being
complementary to the powers specifically conferred,
a court is free to exercise them for the purposes
mentioned in Section 151 of the Code when the
matter is not covered by any specific provision in the
Code and the exercise of those powers would not in
any way be in conflict with what has been expressly
provided in the Code or be against the intention of
the Legislature.
(e) While exercising the inherent power, the court
will be doubly cautious, as there is no legislative
guidance to deal with the procedural situation and
the exercise of power depends upon the discretion
and wisdom of the court, and the facts and
circumstances of the case. The absence of an
express provision in the code and the recognition
and saving of the inherent power of a court, should
not however be treated as a carte blanche to grant
any relief.
FAO (OS) 502/2009 Page 14 of 19
(f) The power under Section 151 will have to be used
with circumspection and care, only where it is
absolutely necessary, when there is no provision in
the Code governing the matter, when the bona fides
of the applicant cannot be doubted, when such
exercise is to meet the ends of justice and to prevent
abuse of process of court.
17. Further, in Nainsingh –vs- Koonwarjee, AIR 1970 SC
997 in para 4 of the report the Supreme Court had held as
follows:-
“4. The High Court, in our opinion, erred in
holding that the correctness of the remand order
was open to review by it. The order in question was
made under rule 23, Order 41, Civil Procedure
Code. That order was appealable under Order 43 of
that Code. As the same was not appealed against, its
correctness was no more open to examination in
view of Section 105(2) of the Code which lays down
that where any party aggrieved by an order of
remand from which an appeal lies does not appeal
therefrom he shall thereafter be precluded from
disputing its correctness. The High Court has
misconceived the scope of its inherent powers.
Under the inherent power of courts recognized by
Section 151, CPC, a court has no power to do that
which is prohibited by the Code. Inherent
jurisdiction of the court must be exercised subject to
the rule that if the Code does contain specific
provisions which would meet the necessities of the
case, such provisions should be followed and
inherent jurisdiction should not be invoked. In other
words the court cannot make use of the special
provisions of Section 151 of the Code where a party
had his remedy provided elsewhere in the Code and
he neglected to avail himself of the same. Further
the power under Section 151 of the Code cannot be
exercised as an appellate power.”
FAO (OS) 502/2009 Page 15 of 19
18. In the present case it is observed that vide order dated
th
26 May, 2006, the application filed by the Appellant seeking
amendment of the plaint was allowed. Further, it is observed
th
that vide order dated 19 January, 2007, the Defendants No.1 to
8 were directed to file their Written Statement to the amended
th
plaint within eight weeks. Vide order dated 14 May, 2007 it
was recorded on behalf of the Defendants No.1 to 8 that the
Written Statement to the amended plaint could not be filed for
want of instructions from the said Defendants. Finally, on
th
8 April, 2008, the learned Single Judge recorded that there
was no justification for giving more time and, therefore, closed
the right of the Defendants No.1 to 8 to file a Written Statement
to the amended plaint. It is also noticed that the Defendants
th
No.1 to 8 were informed of the order dated 8 April, 2008 by
nd
their counsel through letter dated 22 April, 2008, yet the
th
Defendants No.1 to 8 did not take any action till 18 March,
2009. In the impugned order the learned Single Judge came to
th
the conclusion “that the order dated 8 April, 2008 is an
appealable order but the Defendants No.1 to 8 have failed to
challenge the same.” Instead of filing an Appeal against the
FAO (OS) 502/2009 Page 16 of 19
th
order dated 8 April, 2008, the Defendants No.1 to 8 after
almost one year filed I.A. No.3637/2009 seeking “recall” of the
th
order dated 8 April, 2008 under Section 151 of the CPC.
19. In Nain Singh (supra) , the Hon’ble Supreme Court held
that when an Appeal is maintainable against an order and the
same has not been appealed against, the party aggrieved by
such an order is thereafter precluded from disputing its
correctness. In the instant case the impugned order held that
th
an Appeal was maintainable against the order dated 8 April,
2008. The Defendants 1 to 8 have not impugned or assailed the
said finding by the learned Single Judge, by way of an Appeal.
The Hon’ble Supreme Court further held that the Court cannot
make use of the special provisions of Section 151 of the CPC,
where a party had his remedy provided elsewhere in the Code,
and has neglected to avail himself of the same. The Supreme
Court, in Roshan Singh’s case (supra), also observed that the
inherent powers of the Court are not to be used for the benefit
of the litigant who has the remedy under the CPC, and that the
object of Section 151 CPC is to supplement and not to replace
the remedies provided for in the CPC. Thus, it has been
observed that Section 151 CPC will not be available when there
FAO (OS) 502/2009 Page 17 of 19
is a specific alternative remedy, and the same is accepted to be
a well settled principle of law. The operative field of power
being thus restricted, the same does not entitle the exercise of
inherent power.
20. Then a submission was made on behalf of counsel for the
Defendants No.1 to 8 that the present Appeal was not
maintainable on the ground that it was against an order
permitting “recall” under Section 151 of the CPC. There is no
force in the said submission on behalf of the Defendants No.1 to
8 for two reasons. Firstly , the impugned order was in the
th
nature of a review of the order dated 8 April, 2008. An order
granting review is an appealable order under Order XLVII Rule
7 of the CPC, thus the present Appeal is maintainable against
th
the impugned Order. Secondly, the order dated 8 April, 2008
sought to negate valuable rights that had accrued and vested in
the Appellants, when the Defendants 1 to 8 did not prefer an
th
Appeal against the order dated 8 April, 2008 closing its right to
file a Written Statement to the amended plaint. (Re: AIR 1935
CAL 336 (2) Saratchandra Sen –vs- Mrityunjay Ray
Chaudhari.)
FAO (OS) 502/2009 Page 18 of 19
21. In view of the discussion above and the acceptance by the
learned Single Judge of the appealability and finality of the
th
order dated 8 April, 2008, it follows that such an order could
not be recalled by resort to Section 151 of the CPC after a
period of one year had elapsed, and the said recall under
Section 151 of the CPC was unwarranted and impermissible.
Resultantly, the Appeal is allowed and the impugned order
th
dated 8 September, 2009 is set aside. No costs.
SIDDHARTH MRIDUL, J.
BADAR DURREZ AHMED, J.
SEPTEMBER 19, 2011
dn
FAO (OS) 502/2009 Page 19 of 19