Andhra Pradesh High Court - Amravati

Surabattulavenkataramaraoramliabu. vs Surabattula Sanjeeva Rao Died on 17 August, 2022

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           THE HON'BLE SRI JUSTICE BATTU DEVANAND


             CIVIL REVISION PETITION NO.1318 of 2022


O R D E R:

This Civil Revision Petition is filed against the Docket Order dated

28.02.2022 in O.S.No.42 of 2014 on the file of the I Additional District

Judge, Vizianagaram District.

02. Heard learned Counsel for the Petitioner and perused the material

available on record.

03. The Petitioner is the Plaintiff and the respondents are the

Defendants in O.S.No.42 of 2014 on the file of the I Additional District

Judge, Vizianagaram.

04. The case of the petitioner is that he filed a suit in O.S.No.42 of

2014 before I Additional District Judge, Vizianagaram, for partition of

plaint schedule property. When the matter is at the stage of the cross

examination of PW.1, he filed Memo dated 06.08.2018 stating that the

matter was settled out of the Court before the elders of both parties on

certain terms and conditions and sought permission of the trial Court to

not-press the suit. Accordingly, the trial Court, by Order dated

06.08.2018, dismissed the said suit as not-pressed. Thereafter, the

respondents did not execute the Statement of Understanding entered into

between both the parties, the petitioner filed an application to restore the

suit on its file, but the trial Court by Order dated 28.02.2022 returned the

said application. Challenging the same, the present Revision Petition is

filed.

05. Learned counsel for the petitioner/plaintiff submits that believing the

assurance of the defendants and the statement of understanding

executed between the petitioner and the 1st respondent, he filed Memo

dated 06.08.2018 seeking withdrawal of O.S.No.42 of 2014, without

seeking any liberty. On 22.12.2021, the 1st respondent died. The legal

heirs of the 1st respondent are trying to alienate the schedule property in

O.S.No.42 of 2014 to third parties. The trial Court ought to have

appreciated that the provisions of the Civil Procedure Code are not

exhaustive and as such, the inherent power under Section 151 of CPC is

incorporated to enable the Court's of equity to exercise the inherent

powers for the ends of justice. The trial Court ought to have appreciated

that the suit filed by the petitioner is for partition of the plaint schedule

property and the vested right of the petitioner shall be affected by non

considering the case of the petitioner. The trial Court ought not to have

returned the said application by way of an unreasoned order dated

28.02.2022. Therefore, the Order of the trial Court is contrary to law,

weight of evidence and probabilities of the case, and as such, he prays to

allow the present Civil Revision Petition.

06. Learned counsel for the petitioner placed reliance on the judgment

reported in Jet Ply Wood (P) Limited and another v Madhukar

Nowlakha and others1.

07. This Court anxiously considered the submissions of the learned

counsel for the petitioner and perused the judgment relied on by him.

08. In the Judgment stated supra, the relevant paragraphs are

extracted hereinunder:

"As indicated hereinbefore, the only point which falls for our consideration in these appeals is whether the Trial Court was entitled in law to recall the order by which it had allowed the plaintiff to withdraw his suit.

From the order of the Learned Civil Judge (Senior Division) th 9 Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances set out in the order of 24th September, 2004, the learned trial court felt that no case had been made out to recall the order which had been made at the instance of the plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the plaintiff.

The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of

(2006) 3 SCC 699

the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, as follows:

"It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them."

09. In the present case, originally, the petitioner sought permission of

the trial Court to not-press the suit in O.S.No.42 of 2014 pending on the

file of the I Addl. District Judge, Vizianagaram, as the matter was settled

out of the Court before the elders of both parties on certain terms and

conditions. Accordingly, the trial Court by Order dated 06.08.2018,

dismissed the said suit as not-pressed. Thereafter, the respondents did

not comply the Statement of Understanding entered into between both

the parties. Under those circumstances, the petitioner filed an application

under Section 151 of CPC before the trial Court to restore the suit on its

file. The trial Court returned the said application by return endorsement

dated 28.02.2022.

10. In the light of the law laid down by the Hon'ble Apex Court in