Pritpal Singh vs Suad Begum And Anr.
1990 Latest Caselaw 474 Del

JUDGMENT

M.L. Varma, J.

(1) The petitioner has challenged the order dated 9.12.89 passed by Shri P.C.Ranga, Sub Judge 1st Class, Delhi in Suit No.M-17/86. The impugned order had been passed on an application filed under Section 151 Civil Procedure Code . by the petitioner herein which application was dismissed.

(2) Some relevant dates and facts may be noticed before proceeding further. The respondents herein had filed a suit being Suit No. M. 17/86. This suit had actually been filed on 5.3.83. On 1.2.84, the suit was dismissed in default. On 3.2.84, an application for restoration of the suit was filed in which the petitioner herein had filed hisreply, and issues were framed. The case was fixed for evidence on the issues framed in this application (for restoration). The next relevant date is 10.1.86. On that date the case is supposed to have been adjourned to 12.3.86. The case, however, was not put up on 12.3.86 but was put up on 14.3.86 as has been noticed in paragraph 6 internal page 4 of Annexure-'A' to the revision petition which is an order dated 25.4.89 in the same suit. The respondent's counsel is supposed to have noted down the date as 12.4.86 instead of 12.3.86 and 'it has been the case of the respondents that they were wrongly informed that on 12.3.86 itself their application for restoration of the suit filed on 3.2.84 had been dismissed in default.

(3) On 29.7.88, another application was filed by the respondents herein praying that the order dated 20th August, 1986 be set aside. It may be noticed here that as per the order sheet of the original records, the suit was dismissed in default on that date also. There is some overwriting in this order but no grievance has been made on behalf of the petitioner on account of this over-writing. Notice was given of the application dated 29.7.88 to the petitioner herein and reply had also been filed on behalf of the petitioner. In this reply the petitioner did not take the pleas either to the effect that the application dated 29.7.88, was barred by the principles of the res judicata or that in view of the fact that there was already an application made earlier for restoration of the' suit, this application was not maintainable for that reason. It may also be noticed that no steps had been taken by the petitioner against the order dated 20th August, 1986 on the ground that there was no question of dismissing the suit on that date when the tame was already dismissed. No such objection was raised in the reply to the application dated 29.7.88.

(4) The application of 29.7.88 was allowed by an order dated 25.4.89 which is'Annexure-'A' to the revision petition. By this order the suit was restored subject to costs of Rs. 300.00 . On the next date of hearing on 19 7 89 the costs were paid and received by the petitioner herein. On 28.7.89, replication was filed in the suit and on 19.8.89, admission/denial of documents was done and issues were framed. On 3.10.89, the suit was set down for evidence on which date four witnesses of the respondent herein were present.

(5) It appears that for some inexplicable reason, on 10.11.89, an application was made under Section 151C.P.C. on behalf of the petitioner inter-alia contending that the order dated 1.2.84 by which the suit was dismissed in default had not been set aside, and that, therefore, the order of 25.4.89 was liable to be recalled. From-the perusal of Annexure-'A' to the revision- petition as well as the impugned order it is evident that there has been some confusion in the proceedings of this suit and this appears to be also on account of the fact that there were two parallel proceedings going on between the parties, as pointed out by Mr. Malhotra, learned counsel for the petitioner. This application under Section 151 Civil Procedure Code . was dismissed by the impugned order against which, as noticed above, the petitioner has filed this revision petition.

(6) It may be noticed here that the earlier application for restoration had probably been misplaced and had not been placed before the Counsel and it was for that reason that according to the respondents a fresh application had been filed on 29.7.88 on which the order of 25.4.89 had been passed restoring the suit. Admittedly, no proceedings were taken against the order of 25.4.89 on behalf of the petitioner and the same became final.

(7) Mr. Malhotra, learned counsel for the petitioner, has vehemently contended that all proceedings on or after 25.4.89 in the suit were/are null and void because unless the order of 1.2.84 was set aside there was no question of the suit proceeding any further. He has, therefore, contended that the Court lacked inherent jurisdiction to proceed with the suit. It is, however, not 'disputed that the Court had jurisdiction to deal with the case. Mr. Malhotra has contended that the order of 25.4.89, only restored the application which had been filed on 3.2.84, However, the order of 25.4.89-in actual terms restores the suit on payment of costs which costs were accepted by the petitioner herein. Further proceedings continued for nearly seven months before the application question under Section 151 Civil Procedure Code . was filed on behalf of the petitioner.

(8) In this revision petition, I am not called upon to decide the correctness or otherwise of the order of the trial court dated 25.4.89 whereby the suit had been restored. That is not the impugned order in the present petition. The petitioner herein should have taken recourse to such remedies as were open to it in law if according to the.petitioner that order could not or should not have been passed or was erroneous in any way. Nothing of the kind was . done and the. same became -final. The petitioner participated in the proceedings for merely seven months and also accepted costs. Then, it appears, as an after thought, the application in question under Section 151 Civil Procedure Code . bad been filed in which the impugned order has been passed.

(9) A perusal of this application under Section 151 Civil Procedure Code . shows that it was in effect an application seeking the review of the order of 25.4.89 and the prayer was to recall that order. It may be noticed that the time for filing a petition under Section 115 Civil Procedure Code . or under Order 47 Civil Procedure Code . had expired when this application under Section 151 Civil Procedure Code . was filed for recalling the order of 25.4.89. I am, therefore, of the opinion that this application had been filed to circumvent the provisions relating to the period of limitation for taking necessary steps against the order which was passed on 25.4.89.

(10) Learned counsel for the petitioner has fairly conceded at the bar that a review petition could only be filed under Order 47 and not under Section 151 Civil Procedure Code . His contention, however, is that since according to him all proceedings after 25.4.89 are null and void, therefore, he could invoke the inherent jurisdiction of the. Court to recall/review the order of that date. In support of this argument, Mr. Malhotra has cited before me four judgments. They are: 1.Surinder Singh Aurora v. Major Sohan Singh Aurora . 2. M/s. Gammon India Ltd. and others vs. The Bihar State Electricity Board . 3. P.Gopalakrishna Naidu vs.The State of Madras . 4. Sardar Mahammad Hussain 'Khan and another v. Rasoolbur and others reported in Air (35)1948 Sind at page 124.

I am of the opinion that none of these authorities is of any help to the petitioner. In Surinder Singh's case, the question involved was with regard to review of an order, which was on an application made Order 47 Rule I read with Section 151 Civil Procedure Code . In the instant case, the period of limitation for filing a review application had admittedly expired long ago. The judgment of the Patna High Court was against an order restoring the suit and not against an order dismissing an application made against restoration of the suit. The proposition of law in this judgment that mistakes can be corrected suo moto by the Court- under Section 151 Civil Procedure Code . is not involved in the instant case and there can be dispute about that proposition. The judgment of the Madras High Court has been cited only to point out that there is no period of limitation for making an application under Section 151 Civil Procedure Code . The judgment of the Sind High Court is on the point that when an order is passed without jurisdiction then the Court has inherent power to set aside such an order.

(11) As I have already held that the application under Section 151 Civil Procedure Code . was really an application for review, such an application could not have been filed under Section 151 Civil Procedure Code . lam unable to agree with the contention of Mr. Malhotra that the Court's inherent powers could be invoked to seek review of an order which according to him was null and void. Further, there is no question of lack of jurisdiction of the Court when the order dated 25.4.89 was passed. In any case, if the petitioner had been aggrieved by that order, the petitioner should have taken appropriate steps at the right time. Not having done so, the petitioner cannot be allowed to, take recourse to Section 151 Civil Procedure Code . when in effect the petitioner wants to seek a review of the order of 25.4.89.

(12) I am not persuaded to hold that the impugned order dated 9.12.89 dismissing the application under Section 151 Civil Procedure Code . suffers from any jurisdictional error. In any event, I am of the opinion that the ends of Justice are subserved better by the restoration of the suit. This is also in view of the some confusion about dates in respect of which the trial court has made observations in the impugned order of 9.12.89 as well as the order of 25.4.89. The Revision Petition is dismissed. There will be no order as to costs.

(13) The records of the trial court should be returned immediately so as to reach before 15.11.90. The parties are directed to appear before the trial Court on 15th November, 1990.