Lt. Col. (Retd.) S.D. Surie ... vs Paramount Enterprises Ltd. & Ors.
2009 Latest Caselaw 3624 Del

.*         HIGH COURT OF DELHI : NEW DELHI

+          I.A. No. 3637/2009 in CS (OS) No. 788/1993

                                   Reserved on:       September 2, 2009

%                                  Decided on:     September 8, 2009

Lt. Col. (Retd.) S.D. Surie (Deceased)
Through LRs                                                      ...Plaintiff
                       Through : Mr. Ashok Sethi, Adv.

                     Versus
Paramount Enterprises Ltd. & Ors.                     ...Defendants
                     Through : Mr. B. Mohan, Adv. for D-1 to D-8

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                      No

2. To be referred to Reporter or not?                                   Yes

3. Whether the judgment should be reported                              Yes
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I shall dispose of I.A. No. 3637/2009 filed by

the defendants under Section 151 of the Civil Procedure Code, 1908 for

recalling of the order dated 8th April, 2008 passed by this court.

2. The brief facts leading up to the present application are as

follows. The plaintiff filed the present suit for declaration that alienation

and sale certificate of property bearing no. 6, Amrita Shergil Road

(hereinafter referred to as „suit property‟) are both void, illegal and

ineffective as regards the plaintiff‟s 1/3 share in the same and that the

said 1/3 share does not belong to the defendants. As per the plaintiff, his

father got a house built over the suit property and gave the same on rent

to Sh. B.M. Patel, who parted with its possession unauthorisedly.

Thereafter, after the death of the plaintiff‟s father in 1972, the plaintiff

and his two brothers filed an eviction petition against the said Mr. Patel.

3. The deceased left behind a Will which was duly probated by

this court on 29th February, 1980 by virtue of which the plaintiff became

one third owner of the suit property. During the probate proceedings, the

brothers of the plaintiff in collusion with objectors to the Will

manipulated the probate court into ordering public auction of the suit

property through the court auctioneer. It is the plaintiff‟s assertion that

the probate court lacked the requisite jurisdiction to order the auction

and further that the facts on which the said order was passed were

misrepresented by the plaintiff‟s brothers and other persons.

4. The plaintiff filed I.A. No. 516/1994 on 17th January, 1994

under Order VI Rule 17 of the CPC, 1908 praying for amendment of the

plaint to the extent that an alternative prayer for partition be added to the

same. By order dated 26th May, 2006 this court allowed the above-

mentioned application noting that the opposition on the ground of delay

was meritless as the said application was promptly filed but had

remained pending due to some reason or the other. The other objections

of the defendants were also rejected by this court. The plaintiff was

given two weeks to file the amended plaint and the defendants were

given four weeks thereafter to file the written statement. The case was

adjourned on September 22, 2006, October 13, 2006 and November 3,

2006. Due to lack of directions as to the impleadment of defendant no. 9,

on 19th January, 2007 this court allowed the said impleadment and

permitted the plaintiff to file the amended memo of parties as well as the

amended plaint in one week and the defendants to file written statement

within eight weeks. By order dated 2nd February, 2007 this court

corrected a typographical error and directed summons to be sent to

defendant no. 9 in three days.

5. The matter came up before the Joint Registrar on 30th April,

2007 wherein it was noted that since the written statement has remained

unfiled, if the defendants wish to file the same, they must explain their

delay and seek the court‟s permission to bring the same on record. On

14th May, 2007, counsel for defendants 1 to 8 submitted that the written

statement could not be filed due to want of instructions on behalf of his

clients. The court deferred its orders as regards non-filing of the written

statement as it was awaiting the filing of a notice alleged to be given to

defendants 1 to 8 by the counsel of defendants 1 to 8 as regards the

above. On the next date the matter was adjourned. By order dated 8 th

April, 2008 this court observed that since the defendants 1 to 8 had

received a copy of the amended plaint on 8th February, 2007 there was

no justification for granting any further time to the said defendants to file

their written statement and accordingly closed the defendants‟ right to do

the same.

6. It is this order dated 8th April, 2008 that the defendants 1 to 8

are seeking to recall by the instant application. It is claimed by the said

defendants that by their counsel‟s letter dated 22nd April, 2008 they were

informed that their right to file a written statement was closed. The said

defendants have submitted that the plaintiff failed to seek the apt relief in

the original plaint despite knowing all the facts etc. and thus filed the

amendment application. Further, it has been submitted that the plaintiff

took nearly eight months to file the amended plaint. As reason for the

delay caused in filing of the written statement, the defendants 1 to 8 have

stated that since the present suit has been on-going for very long, their

staff had either left or been assigned different responsibilities, thereby

delaying the giving of instructions. Further, it has been averred that the

said defendants‟ counsel withdrew in January 2009 and the present

counsel has promptly filed the present application after going through

the records of the case. The said application was filed on 13th March,

2009.

7. In their reply, the legal representatives of the deceased

plaintiff (hereinafter collectively referred to as „plaintiff‟) have stated

that the order dated 8th April, 2008 is a reasoned order which was passed

after several opportunities had been given to the said defendants to file

their written statement. It is further stated that the adjudication in the

said order was not challenged earlier and that such a challenge is now

barred by limitation as the order has become final and binding. It is

submitted that this court has no jurisdiction to grant the above-sought

recall by defendants 1 to 8.

8. The plaintiff has specifically denied the defendants‟

assertions and submitted that their submissions as regards the

amendment application are unnecessary, uncalled for and improper as

the order allowing the amendment was not challenged. Further, the

plaintiff has stated that the defendants have falsely portrayed the gap

between filing of the amendment application and filing of the

amendment plaint as a gap of eight months, though through those eight

months a typographical error was corrected and defendant no. 9

impleaded by this court. There were also two adjournments in between.

9. Learned Counsel for the plaintiffs, during the course of the

hearing, has focused his argument on the following points. Firstly, that if

the defendants found the impugned order unfair or improper, they could

have filed an appeal against the same. Secondly, if the defendants found

the impugned order disagreeable, they could have filed a revision

petition. They failed to do so intentionally as they were aware that a

revision petition would go to the same bench that had passed the

impugned order and that it may go against them again. The defendants

gave up those two opportunities and filed an application for recall of the

impugned order only after the roster changed. Learned counsel for the

plaintiffs has argued that keeping in mind the deliberate game plan of the

defendants, they should not be allowed to take advantage of their

calculated delay. Further, if a party has an opportunity to file an appeal

under a statute, they cannot ask the court to exercise its discretionary

powers under Section 151 of the CPC.

10. In support of his contentions, learned counsel for the

plaintiffs referred to a few decisions, the relevant portions of which are

reproduced below.

10 A. In State of U.P. & Ors. v. Roshan Singh (D) by LRs and

Ors. (2008) 2 SCC 488, the following was observed:

"7. The principles which regulate the exercise of inherent powers by a court have been highlighted in many cases. In matters with which the Code of Civil Procedure 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 Code of Civil Procedure 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 Code of Civil Procedure. The inherent powers of the court are not to be used for the benefit of a litigant who has a remedy under the Code of Civil Procedure. Similar is the position vis-à-vis other statutes.

8. The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the Code of Civil Procedure. Section 151 CPC will not be available when there is alternative remedy and the 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 on 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 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 under the Act."

10 B. Swadeshi Polytax Ltd. v. V.K. Goel and Ors. AIR 1987

DELHI 260, wherein it was held as follows:

"11. The Supreme Court in Jugal Kishore Paliwal v. S. Sat Jit Singh, (1984) 1 SCC 358 have expressed that this decision is no longer good law in view of the decision in the case of Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786. Paragraph 115 at page 1816 of the above referred decision was extracted:

"Thus, in other words, every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment. "

12. In Shah Babu Lal's case (supra), it was expressed that a judgment can be of three kinds, a final judgment, a preliminary judgment and intermediary or interlocutory judgment. The word "judgment" has undoubtedly a concept of finality in a broader and not a narrower sense. In respect of intermediary or interlocutory judgment, it was expressed (at pages 1815 and 1816) :

"Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43, rule 1, and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43, rule 1, but which also posses the characteristics and trappings of finality in that, the orders may adversely affect a valuable rights of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment, the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the trial judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on the his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant, it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as

to be appealable to a larger Bench. Take the converse case in a similar suit where the trial judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather to remote because the plaintiff still possesses his full right to show that the defense is false and succeed in the suit. Thus, such an order passed by the trial judge would not amount to a judgment within the meaning of clause 15 of the Letters Patent but will be purely an interlocutory order.

Similarly, suppose the trial judge passes an order setting aside an ex parte decree against the defendant, which is not appealable under any of the clauses of Order 43, rule 1, though an order rejecting an application to set aside the decree passed ex parte falls within Order 43, rule 1, clause

(d), and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant at a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has how to contest the suit and is deprived of the fruits of the decree passed in this favour. In these circumstances, therefore, the order passed by the trial judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and amounts to an interlocutory judgment and is, therefore, appealable to a larger Bench. "

10 C. The plaintiff has also cited Shah Babulal Khimji‟s case

(supra). The relevant extract of this case has been cited above as part of

another judgment.

11. The defendants, on the other hand, have submitted the

decision in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth

Hiralal, AIR 1962 SC 527 wherein the inherent powers of the Court

under Section 151 of the CPC have been discussed at length. The

relevant portion has been reproduced hereinbelow:

"18. ...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. The effect of the expression 'if it is so prescribed' is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.

20. Further, the provisions of Section 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. Section 151 reads :

"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 ends of the justice or to prevented abuse of the process of the Court.

21. These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justices."

12. I have gone through the records of the case. The present suit

has been an on-going one since very long. The amendment application

of the plaintiff was allowed, thereby allowing the additional relief of

partition. The original written statement had been duly filed by the

defendants before the amendment occurred. It seems to me that

disallowing the defendants from filing their written statement would

cause grave prejudice to them, although it appears that there is

negligence on the part of the defendant but one can assess as to whether

it is deliberate or bonafide but one thing is clear that due to non filing of

the amended written statement in time, no benefit would go to the

defendant as far as merit of the case is concerned. I agree with the

learned counsel for the plaintiffs that the order dated 8th April, 2008 is an

appealable order but the defendant Nos.1 to 8 have failed to challenge

the same. But one fact I must keep in mind is the ground stated in the

application by which it appears when the proper instructions and

knowledge about the order were received by that time appeal became

time barred. As regard the filing of review is concerned I agree with the

counsel for the defendant that the review against the order is not

maintainable therefore, probably it has not been filed. As regards the last

submission of the learned counsel for the parties as to whether

application under Section 151 CPC for extension of time in filing the

amended written statement is maintainable or not, while going through

two decisions referred to by the learned counsel for the parties, 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, in so far

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. In the interest of justice and equity, I hereby allow the present

application and permit to take on record the amended written statement

of defendants No. 1 to 8. Since the same has not been filed in the time

granted by the Court and even once the right for filing the amended

written statement was closed, therefore, the defendants No.1-8 are

burdened with the cost Rs.50,000/- to be paid to the plaintiff by the

defendants No.1-8 within three weeks from today.

The application stands disposed of.

CS (OS) No. 788/1993

List this matter before the Court on 3rd November, 2009.

MANMOHAN SINGH, J.

September 08, 2009 nn