Heard Sri Saket Gupta, learned counsel for the revisionist, Sri Virendra Mishra, learned counsel for respondent no.2 and perused the record.
Facts, in brief, of the present case are that the shop no. 588/116(old), new number 588/405 situated at Bhadrukh near State Bank of India , Jail Road Branch, Bangla Bazar, Lucknow owned by Sri Krishna Kumar Bansal under the tenancy of Satyendra Kumar Gupta. As the tenant did not pay the rent of the shop from 1.8.2007 in spite of the repeated demands so plaintiff/ respondent sent a notice dated 2.11.2008 through his counsel requiring the defendant to pay entire arrears of rent for the period ending 31.10.2008 amounting to Rs. 99,000/- together with 2350/- within a month of the receipt of the notice and to vacate the said shop in his tenancy on the expiry of thirty days next after the receipt of the aforesaid notice.
As the tenant/defendant did not comply the terms of the notice in vacating the premises, so the plaintiff respondent/ Krishna Kumar Bansal filed a suit for arrears of rent and ejectment registered as SCC Suit No.77 of 2008 ( Krishna Kumar Bansal Vs. Satyendra Kumar Gupta ) decreed ex- parte order dated 21.8.2009.
Thereafter on 16.9.2009 , defendant-revisionist/ Satyendra Kumar Gupta moved an application under Order 9 Rule 13 read with Section 151 C.P.C. for setting aside ex parte decree. Accordingly, Misc Case no. 6C/2009 ( Satyendra Kumar Gupta Vs. Krishna Kumar Bansal) has been registered before Additional District Judge Court no.10 , Lucknow .
Later on an application has been moved by Sri Satyendra Kumar Gupta for depositing the decreetal amount , registered as Paper No. C-20 alongwith an affidavit. After hearing learned counsel for the parties , the court below by order dated 12.1.2011 has directed to deposit the decreetal amount of Rs. 1,11,750/- by way of fixed deposit to decide the application under Order 9 Rule 13 CPC.
Again on 12.11.2010 an application has been moved on behalf of the revisionist with the prayer to take fixed deposit on record and to grant time to deposit the remaining amount. After haring learned counsel for the parties , the court below by order dated 27.5.2011 allowed the said application and directed that a sum of Rs.70,000/- and Rs. 41750/- be deposited by way of fixed deposit and be kept on record as security.
On 6.7.2012,an application has been moved by the plaintiff/respondent under Section 151 C.P.C. for recall of the order dated 27.5.2011, allowed by order dated 18.7.2013 recalling the order dated 12.1.2011 and 27.5.2011.
Aggrieved by the said order , present revision has been filed by Sri Satyendra Kumar Gupta under Section 25 of the Provincial Small Causes Court Act, 1887.
Sri Saket Gupta, learned counsel for the revisionist while challenging the impugned order dated 18.7.2013 passed by Additional District Judge, Court No.10, Lucknow in Misc Case no. 6C of 2009 (Satyendra Kumar Gupta Vs. Krishna Kumar Bansal) submits that order dated 12.1.2011 and 27.5.2011 have attained finality, so the action on the part of court below thereby recalling the said orders on the application moved by defendant-revisionist/ Sayendra Kumar Gupta under Section 151 CPC is an action which is without jurisdiction after passing of the said orders, the application under Section 151 CPC is not maintainable .
He further submits that no prejudiced has been caused to the plaintiff respondent by an order 18.7.2013 as the application moved by defendant/revisionist under Order 9 Rule 13 CPC has to be decided on merit, hence the impugned order being contrary to law , liable to be set aside.
Sri Virednra Misra, learned counsel for respondent/plaintiff supporting the impugned order submits that in the present case SCC No.77 of 2008 has been ex parte decreed in favour of respondent no.2 . Subsequently, an application under Order 9 Rule 13 CPC has been moved by the defendant/ revisionist for recall of the said order and as per Section 17 of the Provincial Small Cause Courts Act, 1887, it is the mandatory duty on the part of the revisionist/defendant to deposit the entire decreetal amount at the time of moving of the said application however, the said act has not been done by him hence the order 9 Rule 13 CPC moved by him without complying the provisions of Section 17 of the Provincial Small Cause Courts Act, 1887, is not maintainable. In this regard he has placed reliance on the judgment of Hon'ble the Apex Court in the case of Kedarnath Vs. Mohan Lal Kesarwari and others, 2002(1) Allahabad Rent Cases, 186, so later on the applications moved by him for allowing to deposit the decreetal amount by way of security on which the orders dated 12.1.2011 and 27.5.2011 have been passed , are without jurisdiction as such the application moved by the defendant under Section 151 CPC for recalling the said orders are not maintainable . In support of his arguments he has placed reliance the following judgments:-
(1) K.K. Velusamy Vs. N. Palanisamy (2011) 11 SCC 275 (2) Rejendra Prasad Gupta Vs. Prakash Chandra Mishra and others (2011) 2 SCC 705 (3) Raj Narain Saxena Vs. Bhim Sen and others, AIR 1966 Allahabad 84 (4) Ram Prakash Agarwal and another Vs. Gopi Kishan and others (2013) 11 SCC 296.
In alternate, Sri Virendra Mishra, learned counsel for plaintiff/ respondent also argued that even if otherwise for arguments purpose it is assumed that the application moved by landlord- plaintiff/ respondent under Section 151 CPC. is not maintainable then in that circumstances as the orders dated 12.1.2011 and 27.5.2011 passed by the court blow in Misc. Case no. 6C/2009 are illegal and arbitrary, as while moving an application under Order 9 Rule 13 CPC the tenant/respondent has not completed the mandatory duty caused on him for compliance of section 17 of the Provincial Small Cause Courts Act, 1887 so keeping in view the said facts present revision filed by the revisionist, liable to be dismissed.
In support of his arguments, he has placed reliance on the following judgements:-
(1) C.P. Clarke Vs. Agha Aziz Khan and another , AIR 1936 Oudh,247.
(2) Sunderdas Ghanshyamdas Vs. Tarasing Premsing and another, AIR(31) 1944 Sind, 168.
(3) in the case of Smt. Pushpa Sand Vs. Rent Control and Eviction Officer/ City Magistrate, Kanpur Nagar and another, 1996(1) Allahabad Rent Cases,457, (4) United India Insurance Company Limited Vs. Mohd Ishaq and others, 2012 (4) ADJ 498.
(5) In the case of Raj Kumar Soni and another Vs. State of U.P. and another (2007) 10 SCC 635 (6) In the case of Kamal Krishan Rastogi and others Vs. State of Bihar and another (2008) 15 SCC 105 Accordingly, he submits that the revision lacks merits , liable to be dismissed.
I have heard learned counsel for the parties and gone through the record.
In order to decide the controversy it will be appropriate to go through the provisions as provided under Section 151 CPC , Order 9 Rule 13 and Section 17 of the Provincial Small Cause Court Act, 1887.
Section 151. Saving of inherent power of Court:- Nothing in this code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the end of the justice or to prevent abuse of the process of the Court.
Order IX Rule 13. Setting aside decree ex parte against defendants- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
[ provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim] [Explanation- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree] Section 17 of the Provincial of Small Cause Court Act- Application of the Code of Civil Procedure- (1) [ The procedure prescribed om the Code of Civil Procedure, 1908(5 of 1908), shall save in so far as is otherwise provided by that Code or by this Act] be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the court , the amount due from him under the decree or in pursuance of the judgment, or give[ such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application mad by him in this behalf , have directed] (2) Where a person has become liable as surety under the proviso to sub-section(1) , the security may be realized in manner provided by Section [145] of the Code of Civil Procedure[1908](4 of 1908)."
Further, while considering the scope of the proviso to Section 17 of the Provincial Small Cause Court Act, 1887 read with the provisions of Order 9 Rule 13 CPC as well as Section 20 (2) of the U.P. Urban Buildings(Regulation of Letting, Rent and Eviction) Act, 1972, Hon'ble the Apex Court in the case of Kedarnath ( Supra) has held as under:-
"It is relevant to note that the proviso to sub-Section (1) of Section 17 has undergone a material change through an amendment brought in by Act No.IX of 1935. Earlier there were the words- "security to the satisfaction of the Court for the performance of the decree or compliance with the judgment, as the court may direct" which have been deleted and substituted by the present words - "such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed". The Statement of Objects and Reasons for the 1935 amendment was set out as under:
"The Act is designed to remove certain doubts which have arisen in the interpretation of the proviso to sub-section (1) of Section 17 of the Provincial Small Cause Courts Act, 1887. As the section stands, an applicant is required to give security to the satisfaction of the Court at the time of presenting his application. It follows that, in order to ascertain what security satisfies the Court, the applicant must already have made an application in that behalf. There is some doubt whether the words "as the Court may direct" apply to the deposit of the whole decretal amount as well as to the giving of approved security.The Act is intended to make it clear that the preliminary application to ascertain what security will satisfy the Court must be made and decided before the substantive application for the order to seet aside the decree, and that it always is open to the applicant to adopt the alternative course of depositing the total decretal amount. (Vide Statement of Objects and Reasons, Gazette of India, 1935, Pt. V, p.90)."
The object behind establishing Small Cause Courts conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by adopting summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation. Excepting an order for compensatory costs in respect of false or vexatious claims or defences or an order imposing fine or directing the arrest or detention in the civil prison of any person (except where such arrest or detention is in execution of a decree), orders and decrees of courts of small causes are not appealable: they are only revisable by the High Court (or by District Court under Section 115 of CPC as amended in its application to State of U.P.). The jurisdiction to entertain and hear an application to set aside a decree passed ex-parte or for a review of judgment by courts of small causes is sought to be qualified and narrow down by imposing condition as to deposit or giving security for performance or compliance by enacting proviso to sub-section (1). Such a provision fits in the scheme of the PSCC Act. Although there is no authoritative pronouncement by this Court (none brought to our notice) interpreting the nature and scope of the proviso however, the learned counsel for the appellant brought to our notice a number of decisions delivered by the High Courts of Allahabad, Oudh, Madras, Orissa, Rajasthan and Lahore which have taken the view that the proviso is mandatory and non-compliance therewith would entail dismissal of the application because such non-compliance cannot be condoned or overlooked by the court. They are, to wit : Mohammad Ramzan Khan Vs. Khubi Khan AIR 1938 Lahore 18 (DB), Murari Lal Vs. Mohammad Yasin AIR 1939 Allahabad 46, Mt. Shikhani Vs. Bishambhar Nath AIR 1941 Oudh 103, Jagdamba Prasad & Ors. Vs. Ram Das Singh & Anr. AIR 1943 Allahabad 288, Roshan Lal Vs. Brij Lal Amba Lal Shah- AIR 1944 Oudh 104, Vembu Amal Vs. Esakkia PillaiAIR 1949 Madras 419, Khetra Dolai Vs. Mohan Bissoyi AIR 1961 Orissa 37, and Dhanna Vs. Arjun Lal AIR 1963 Rajasthan 240. As the present case arises from the State of Uttar Pradesh, the learned counsel for the appellant cited a series of decisions delivered by Allahabad High Court so as to show the view of the law being consistently taken there. These are : Krishan Kumar Vs. Hakim Mohd. 1978 ALJ 738, Sharif Vs. Suresh Chand & Ors. 1979 AWC 256, Roop Basant Vs. Durga Prasad & Anr. 1983 1 ARC 565, Mohd. Islam Vs. Faquir Mohammad 1985 1 ARC 54, Krishan Chandra Seth Vs. Dr. K.P. Agarwal & Anr. - 1988 1 ARC 310, Mamta Sharma Vs. Hari Shankar Srivastava & Ors.- 1988 1 ARC 341, Mohd. Yasin Vs. Jai Prakash 1988 2 ARC 575, Purshottam Vs. Special Additional Sessions Judge, Mathura & Ors. 1991 2 ARC 129, Ram Chandra (deceased L.Rs.) & Ors. Vs. Ixth Additional District Judge, Varanasi & Ors.- AIR 1991 Allahabad 223, Sagir Khan Vs. The District Judge, Farrukhabad & Ors. - 1996 27 ALR 540, Mohammad Nasem Vs. Third Additional District Judge, Faizabad & Ors. AIR 1998 Allahabad 125, and Beena Khare Vs. VIIIth Additional District Judge, Allahabad & Anr. 2000 2 ARC 616.
The learned counsel for the respondent brought to our notice Surendra Nath Mittal Vs. Dayanand Swarup and Anr. AIR 1987 Allahabad 132, Chigurupalli Suryanarayana Vs. The Amadalavalasa Co-operative Agricultural Industrial Society Ltd. AIR 1975 A.P. 196 and Tarachand Hirachand Porwal Vs. Durappa Tavanappa Patravali AIR 1943 Bombay 237. All the three decisions are single Bench decisions. Suffice it to observe that the first two decisions are more or less ad hoc decisions which do not notice other decisions and the general trend of judicial opinion. The view propounded therein does not appeal to us.The Bombay decision does not lay down any general proposition of law and proceeds on its own facts.
A bare reading of the provision shows that the legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex-parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the court of the amount due from the applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the court in its discretion subject to a previous application by the applicant seeking direction of the court for leave to furnish security and the nature thereof The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex-parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the court to make a prompt order. The delay on the part of the court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the court.
In the case at hand, the application for setting aside ex parte decree was not accompanied by deposit in the court of the amount due and payable by the applicant under the decree. The applicant also did not move any application for dispensing with deposit and seeking leave of the court for furnishing such security for the performance of the decree as the court may have directed. The application for setting aside the decree was therefore incompetent. It could not have been entertained and allowed."
The same view has been reiterated by this Court in the case of Jai Prakash Pandey Vs. Baboo Lal Jaiswal, 2009 (3) ARC 497 after placing reliance of the judgment given by Hon'ble the Apex Court in the case of Kedarnath ( Supra) that the provisions of Section 17 of the Provincial Small Causes Act are mandatory in nature and non compliance would entail dismissal of the application and such non compliance cannot be condoned or overlooked by the Court .
Subsequently Hon'ble the Apex Court in the case of Shyam Shanker and others Vs. Sahu Sarvesh Kumar and others, 2008 (3) ARC 115 held that deposit of the decretal amount can be dispensed with by Court if the application is accompanied alongwith th application filed under Order 9 Rule 13 CPC . ( See also ; Zulfiquar Hussain Vs. Madan Gopal Chopra, 2012 (2) ADJ 463 and Raj Kumar Makhija and others Vs. Raj Kumar Makhija and others, 2012 (9) ADJ 337) Thus, keeping in view the law on the subject as well as moving an application under Order 9 Rule 13 CPC read with Section 17 of the Provincial Small Cause Courts Act, 1887 following conditions are to be satisfied:-
(1) That the proviso is mandatory (2) the application seeking to set aside decree or review must be accompany by a deposit of decretal amount in Court.
(3) the application for dispensation of deposit can be filed upto the date of filing the application for setting aside the decree.
(4) the proviso dos not provide for extension of time.
Thus, in the instant matter, It is not disputed between the parties that when the application under Order 9 Rule 13 CPC has been moved by the defendant/ revisionist for setting aside ex parte decree dated 21.8.2009 passed in SCC Suit No. 77 of 2008 neither any decretal amount as per Section 17 of the Provincial Small Cause Courts Act, 1887 has been deposited nor any application has been moved for extension of time to deposit the same thereafter on an affidavit filed subsequently orders dated 12.1.2011 and 27.5.2011 were passed.
In view of the above said fact the next question to be considered that whether the action/exercise by the court below for recalling the orders dated 12.1.2011/21.5.2011 on an application moved by respondent/plaintiff under Section 151 CPC is in accordance with law .
From the reading of Section 151 CPC , the position which emerge out is as follows:-
(1) the inherent powers of the Court are very wide and are not in any way controlled by the provisions of the Code.
(2) They are in addition to the powers specially conferred on the Court by the Code and the Courts are free to exercise them.
(3) The only limitation put on the exercise of the inherent powers is that when exercised, they are not in conflict with what has been expressly provided for, or those exhaustively covering a particular topic, or against the intention of the Legislature. These limitations are not due to the fact that the inherent power is controlled by the Code, but because it should be presumed that the procedure specifically provided for orders in certain circumstances is dictated by the interests of justice.
(4) Inherent powers are to be exercised where specific provision does not meet the necessities of the case.
Further, no party has a right to insist on the Court exercising its inherent jurisdiction. This jurisdiction is to be exercised by the Court in very exceptional circumstances for which the Code provides no procedure. The Legislative has made detailed provisions in the Code for various matters. If there are express provisions in the Code covering a particular topic, they give rise to the necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provision. The power under the Code need not even be express. It may be implied or can even be implicit from the very nature of the provisions made for covering the contingencies to which they relate (see: G.K. Prabhakaram v. David Traders AIR 1973 Ker. 1 (F.B.) The inherent power of a Court under Section 151 is not intended to enable a Court to confer a right upon a party. The distinction between the procedural law and the substantive law must be borne in mind. Section 151 does not invest a Court with legislative powers but only enables a Court to pass interim orders to do justice between the parties considering the rights conferred upon the parties by substantive law. The inherent powers of a Court are in addition to and complementary to the powers expressly conferred upon it by other provisions of the Code. (See Shantaram v. Dagubai A.I.R. 1987 Bpm. 182 (D.B.)) Hon'ble the Apex Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 (V 49 C 80) wherein paragraph no.43 held as under :-
"The Code of Civil Procedure is undoubtedly not exhaustive : it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorized to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible. As observed in 62 Ind App 80 (AIR 1938 PC 85).
"It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act."
Thus, inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.
So, recourse to inherent powers in face of or in conflict with the specific provisions of the statute would not be permissible. Inherent powers cannot be used as an instrument to intrude the powers of the Court in regard to a procedure or a remedy, if specifically provided in other provisions of the Civil Procedure Code. No code or law could be codified so as to provide for each and every situation, at every stage of the proceedings arising from the vacuum left in the enactment. Such situations are to be supplied by the Court by recourse to inherent powers to create a bridge over such situation for meeting the ends of justice or prevent abuse of process of law. To do justice is the primary duty of the Court but duty imposed should be discharged in consonance with the provisions of the Civil Procedure Code and within four corners of well enunciated principles. Inherent powers being adjunct to the specifically provided powers of the Court as codified in the Civil Procedure Code, they could not be used for disturbing the procedure provided under the Civil Procedure Code because its ramification could prove retrogative to the administration of justice by civil court. Entertainment of such application would have the effect of infringing the concept of finality doctrine of civil jurisprudence (Kalia Devi v. State of Haryana (1999) 1 Punj. L.J. 585) The inherent powers vested in the Court under Section 151 of the C.P. Code could be invoked to do justice but without infringing and overreaching the specific provisions of law or provisions of the Civil Procedure Code. If exercise of such powers is likely to contravene the manner and the method for which specific provisions have been enacted in the Civil Procedure Code, the Court would have to refrain from passing such order in exercise of its inherent powers. In other words, express provisions of law in the statute would be necessary implication exclude the exercise of inherent powers in regard to that particular Act where specific remedy is available to the party in such definite remedy is normally not permissible in law and that has been consistent view held by the Courts including the highest Court of the land. So the inherent powers cannot be permitted to be substituted for appellate Court powers to judge the merits and correctness of the judgment pronounced. (See Kalia Devi v. State of Haryana (1999) 1 Punj. L.J. 585).
Section 151 of the C.P.C. retains the inherent jurisdiction which every Court possesses to strike out from its record a suit which is frivolous, vexatious, malicious or tantamount to abuse of the process of the Court or tends to bring the administration of justice to ridicule by persistently and consistently filing proceedings and suits though the matter has been settled finally by the highest Court of the land. It is true that such power of striking off the plaint from the record of the Court on the ground of abuse of process is to be exercised sparingly and with circumspection and in rarest of rare cases but when the conduct of a litigant is so glaringly contumacious intended to keep a matter alive in a Court having no jurisdiction, such litigation deserves to be dealt with sternly (See SNP Shipping Services Pvt. Ltd. v. Kara Mara Shipping Co. Ltd. AIR 2000 Bom. 57) In the case of K.K. Velusamy (Supra) Hon'ble the Apex Court has held as under:-
"The respondent contended that section 151 cannot be used for re-opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:
(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 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.
(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."
In the case of Rajendra Prasad Gupta (Supra), Hon'ble the Apex Court has held as under:-
"We do not agree. Rules of procedure are handmaids of justice. Section 151 of the Code of Civil Procedure gives inherent powers to the court to do justice. That provision has to be interpreted to mean that every procedure is permitted to the court for doing justice unless expressly prohibited, and not that every procedure is prohibited unless expressly permitted. There is no express bar in filing an application for withdrawal of the withdrawal application."
In Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) (1882), Mr. Justice Mahmood, the celebrated Judge of the Allahabad High Court, observed :-
"Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed.
The above view was followed by a Full Bench of the Allahabad High Court in Raj Narain Saxena Vs. Bhim Sen & others, AIR 1966 Allahabad 84 FB, and we agree with this view. Accordingly, we are of the opinion that the application praying for withdrawal of the withdrawal application was maintainable. We order accordingly. ( See also: Raj Narain Saxena Vs. Bhim Sen and others, AIR 1966 Allahabad 84 ( FB)"
Thus , in view of the above said law , it can be held that inherent power under Section 151 CPC cannot be used to reopen the settled matters as held by Hon'be the Apex Court in the case of State of W.B. And others vs. Karan Singh Binayak and others (2002) 4 SCC 188, the relevant portion quoted herein below:-
"The inherent powers cannot be used to reopen the settled matters. These powers cannot be restored to when there are specific provisions in the Act to deal with the situation. It would be an abuse to allow the reopening of the settled matter after nearly four decades in the purported exercise of inherent powers. It has not even been suggested that there was any collusion or fraud on behalf of the writ petitioners or the erstwhile owners. There is no explanation, much less satisfactory explanation for total inaction on the part of the appellants for all these years."
So the application moved by the plaintiff-respondent under Section 151 CPC for recall of the orders dated 12.1.2011/27.5.2011 is not maintainable .
However, next important point to be considered in the matter that if by setting aside the order dated 18.7.2013 passed in Misc. Case no. 6C/2009 ( Satyendra Kumar Gupta Vs. Krishna Kumar Bansal) the orders dated 27.5.2011 and 12.1.2011 which are contrary to law i.e. not in accordance with the provisions of Order 9 Rule 13 CPC read with Section 17 of the Provincial Small Cause Courts Act, 1887, could revive in these circumstances whether the order dated 18.7.2013 should be set aside or not? The answer to the said question is in the following judgments:-
In the case of C.P. Clarke ( Supra) Hon'ble the Apex Court has held as under:-
" Thus, the principle is well established that the Court should not ordinarily exercise its discretionary powers in revision under Sectin 25 Small Cause Court Act, if no injustice has been done. The question whether interference should be made or not under this section must depend upon the facts and circumstances of each case. It is no doubt true that the question raised on behalf of the applicant is one of law and the Court is not precluded from interfering with the lower Court's decision on that ground; but having given our careful consideration to the facts and circumstances of the case we are satisfied that, far from furthering any ends of justice, we would perpetrate an injustice in interfering with the decree of the lower Court in the present case . We accordingly dismiss the application with costs."
In the case of Sunderdas Ghanshamdas (Supra), Hon'ble the Apex Court has held as under:-
"It has been emphasized on behalf of the opponent that this is an application under Section 25, Provincial Small Cause Courts Act , and that the circumstances under which a High Court will interfere are restricted . Our attention was drawn to a very recent case before the Nagpur High Court [ see (43) 30 AIR 1943 Nag. 117(FB)] in which a Full Bench of that Court discussed the application of Section 25 and a large number of decisions bearing on the matter, and pointed out with considerable emphasis that there should be no interference in revision by a High Court with a judgment of a Small Cause Court on a question either of fact or of law, even though the decision may appear to be erroneous, unless the conclusion of the Small Cause Court is one which no Judge acting judicially could reasonably reach. Much to the same effect is the Bombay case in 40 Bom. L.R. 125, Bell & Co. Ltd. Vs. Waman Hamraj. It was pointed out in that case that the Section( Section 25 Provincial Small Cause Courts Act) ought not to be construed as giving the parties a right of appeal on points of law."
In the case of Smt. Pushpa Sand (Supra), this Court has held that when an authority failed to exercise jurisdiction taking erroneous view of law or under some misconception of law it will be open to recall his order and consider the case on merits.
In the case of United India Insurance Co. Ltd. Vs. Mohd. Ishaq (supra), this Court has held as under:-
"Accordingly, if writ petition filed by the Insurance Company is allowed on the ground that Workmen Compensation Commissioner has got no power to review, the result would be that his earlier order dated 31.3.2003 would revive which was without jurisdiction in so far as it exempted the Insurance Company from the liability. A writ court can very well refuse to exercise the jurisdiction/discretion to quash an order even if it is illegal if the result of quashing will be revival of another illegal order. The matter may be looked from another angle also. Even though the initial order dated 31.3.2003 has not been challenged however, that order is before the court. In case contention of the Insurance Company that Workmen Compensation Commissioner has no power to review is accepted then the initial order of 31.3.2003 itself may be quashed by the court to the extent to which it absolved the Insurance Company from the liability to pay the compensation."
In the case of Raj Kumar Soni and another (Supra) Hon'ble the Apex Court has held as under:-
"The above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 of Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law."
In the case of Kamal Krishan Rastogi and others ( Supra) Hon'ble the Apex Court has held that Nevertheless, the learned Judge held, the illegality of the reopening order would not affect the subsequent orders passed by the Revenue Authorities. The learned Judge observed that even though an order might be without jurisdiction, the Court would decline to interfere in case the setting aside of that order should lead to reviving another bad and illegal order.
For the foregoing reasons, in the instant matter , I do not find any any justification to set aside the order dated 18.1.2013 passed on the application moved by the Plaintiff/respondent under Section 151 CPC.
In the result, the revision is dismissed.
No order as to costs.
Order Date :- 31.1.2014 dk