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CASE NO.: Appeal (civil)  1367 of 2006

PETITIONER: Jet Ply Wood Private Ltd. & Anr

RESPONDENT: Madhukar Nowlakha & Ors

DATE OF JUDGMENT: 28/02/2006

BENCH: H.K.Sema & Altamas Kabir

JUDGMENT: J U D G M E N T (Arising out of SLP )  No.10024 of 2005) with CIVIL APPEAL NO.1368       OF 2006 (Arising out of SLP )  No. 9761-9762 of 2005)

Biswarup Banerjee & Ors.                                ...Appellants

Versus   Madhukar Nowlakha                                      ...Respondent

ALTAMAS KABIR,J.

               Leave granted in both the matters.

One Madhukar Nowlakha, the respondent No. I in   these appeals, entered into an agreement for sale in  respect of premises No. 4A, Lansdowne Place, P.S. Lake,  Kolkata-700029, together with the building and  structures thereon, with one Shri Biswarup Banerjee and  five others on 20th September, 1988.   Inasmuch as, the  said agreement was allegedly not acted upon for a long  time, the same was purportedly cancelled by the owners  on 15th June, 2002.

On 24th September, 2003, Shri Madhukar Nowlakha  filed Title Suit No. 32 of 2003 in the Court of Civil Judge,  (Senior Division) 9th Court at Alipore, for specific  performance of the agreement purported to have been  cancelled and for temporary injunction to restrain the  petitioners from alienating the suit premises.  Thereafter,  on 30th  October, 2003, the said Respondent No. I applied  to the Court for leave to withdraw the suit on the ground  that since there were talks of settlement between the  parties, he no longer wished to proceed with the suit.   No   leave was prayed for to file a fresh suit on the same cause  of action. On 11th July, 2004, the learned Judge allowed the  respondent No. I to withdraw the suit, but without liberty  to file a fresh suit on the same cause of action. On 23rd August, 2004, after termination of the  agreement and after withdrawal of the suit filed by the  Respondent No. I,  Shri Biswarup Banerjee and the other  co-owners sold the premises to M/S. Jet Ply Wood   Company Limited, the petitioner in SLP (C) No.  10024/2005. Within a month thereafter, on 24th September,

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2004, Shri Madhukar Nowlakha applied to the learned  Civil Judge (Senior Division) 9th Court at Alipore, for  recalling of the order by which the suit had been  permitted to be withdrawn on the ground  that he had  been misled into making such application on account of  the misrepresentation of Shri Biswarup Banerjee and the  other co-owners that they would sell the property to him  provided he withdrew the suit.   The learned Civil Judge  (Senior Division) 9th Court at Alipore, rejected the said  application filed by Shri Madhukar Nowlakha.  After rejection of his  said application for recalling  the order allowing withdrawal of the suit, Shri Madhukar  Nowlakha filed a second suit, being Title Suit No. 87 of  2004, which is  said to be pending.  His prayer for  interim injunction in the said suit was rejected.   Thereafter, on 23rd December, 2004, Shri Madhukar  Nowlakha filed an application before the High Court at  Calcutta under Article 227 of the Constitution, being  C.O. No.3982 of 2004, challenging the Trial Court’s order  dated  24th September, 2004, refusing to recall its earlier   order of 11th February, 2004.   While admitting the said  application, the High Court directed service of notice on  the opposite parties and directed status quo to be  maintained  for a period of eight weeks. On 4th February, 2005,  the  learned Single Judge of  the Calcutta High Court heard  and allowed the  revisional application, being C.O. 3982 of 2004, and  restored Title Suit No. 32 of 2002 for trial before the  Civil  Judge,  (Senior Division)  9th Court at Alipore.   Since according to Shri Banerjee and the other co- owners of the premises, their learned advocate was  unable to attend the hearing on 4th February, 2005, on  account of personal reasons, they filed an application,  being CAN No. 1999 of 2005, before the said learned  Judge for recall of his order dated 4th February, 2005.  The same was heard and dismissed on contest on 14th  March, 2005 with the learned Single Judge reaffirming  his order restoring the suit on 4th February, 2005. Both these two Special Leave Petitions have been  filed challenging the first order of the learned Single  Judge dated 4th February, 2005 restoring the suit of  respondent No. I.   In addition, Shri Banerjee and the  other co-owners of the property have also questioned the  legality of the second order passed by the learned Single  Judge on 14th March, 2005 rejecting their application for  recalling the order dated 4th February, 2005. Since the  Special Leave Petitions have been  preferred against the common order dated 4th February,  2005 of the Learned Single Judge of the Calcutta High  Court, we have taken them up together for hearing and  they  are being disposed of by this common judgment. It will be evident  from the facts  mentioned   hereinabove that  the only question to be decided in these  appeals is whether the learned Single Judge of the  Calcutta High Court acted within his jurisdiction in  restoring the suit of the Respondent No. I when the same  had been withdrawn by the said Respondent without any  specific prayer for leave to file a fresh suit on the same  cause of action.   In other words, we are required to  consider whether having regard to the provisions of Order   XXIII Rule 1 of the Code of Civil Procedure, the Learned  Single Judge of the Calcutta High Court could  restore  the suit when no leave had been granted to file a fresh  suit. Although, in his order dated 4th February, 2005, the

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Learned Single Judge was of the view that there was no  reason to allow the withdrawal of the suit without  permission or liberty to file another suit, which reasoning  we are unable to agree with, since the plaintiff had not  made any specific prayer for such leave, the same is not   relevant for the purpose of considering as to whether the  Court was within its jurisdiction to restore the suit  despite leave not having  been asked for nor granted but      specifically refused.    Appearing for the appellant, M/s. Jet Ply Wood  Private Limited and Ors., Mr. Mukul Rohtagi urged that  having regard to the provisions of Order XXIII Rule 1 of  the Code of Civil Procedure, in the absence of any prayer  for leave to file a fresh suit and a specific prohibition  having been included in the order of the Learned Judge  permitting  withdrawal of the suit, there was no further  scope either for the Trial Court or for the High Court to  allow the Respondent No. 1’s application for withdrawal  of the order passed by the Trial Court on 11th July, 2004,  permitting withdrawal of the suit. Mr. Rohtagi urged that the appellants had acquired  lawful title to the suit  premises and had incurred  considerable costs in getting  the property vacated and  starting construction thereon and it would be inequitable  at this stage to allow the Respondent No. 1’s application  for restoration of the suit. Mr. Rohtagi submitted that the order of the Learned  Single Judge of the Calcutta High Court impugned in  these appeals was erroneous  and was liable to be set  aside. Mr. Abhishek Manu Singhvi, learned senior counsel,  who appeared for the Respondent No. 1 in the first two  appeals on the other hand  urged that pursuant to the  agreement arrived at between Shri Nowlakha and the  owners of the property, Shri Nowlakha had taken steps to  get the property vacated and made ready for  construction.  However, on the assurance given by the  owners of the property, the respondent No. 1 had agreed  to withdraw his suit which fact will be reflected from the  application filed by him before the Learned Civil Judge  (Senior Division) 9th Court at Alipore for withdrawal of the  suit. Mr. Singhvi urged that the owners of the property  had resorted  to subterfuge to wriggle out of the  agreement and had misled the Respondent No.1 into  withdrawing  the suit and it  is on account of such  misrepresentation that the Respondent No. 1 was entitled  in law to have his suit restored. Mr. Singhvi submitted that it would not  be correct  to contend  that the Learned Trial Judge did not have the  jurisdiction to withdraw the order passed by him  permitting the respondent No.1 to withdraw his suit.   What  was relevant  was  whether in the circumstances  such a power  should  have been  exercised or not.    Since the learned Trial Judge had chosen not to exercise  such power, the High Court stepped in, in exercise of its   powers under Article 227 of the Constitution to restore  the suit filed by  the Respondent No.1. Mr. Singhvi urged that while dismissing the  application filed by Shri Biswarup Banerjee and others  recalling the order dated 4th February, 2005, the learned  Single Judge of the Calcutta High Court in his order  dated 11th March, 2005, had  referred to and relied upon  a Division Bench judgment of the Calcutta High Court in  the case of Rameswar Sarkar Vs. State of West Bengal &

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Ors. reported in AIR 1986 Calcutta 19, in support of his  order that when through mistake  a plaintiff withdraws  his suit, the court is not powerless to set aside such  order of dismissal in exercise of inherent powers even if  no leave to file a fresh suit had been prayed for. Mr. Singhvi urged that the order passed by the  learned Single Judge of the Calcutta High Court and  impugned in these appeals did not call for any  interference by this Court. Mr. Soli J. Sorabjee, learned senior counsel for the   Respondent No.1 in the second set of appeals while  adopting Mr. Singhvi’s submission, added that since the  Learned Single Judge of the Calcutta High Court had  acted within his jurisdiction to do justice between the  parties, the same did not warrant any  interference by  this Court.   Mr. Sorabjee submitted that this  was not a  case of the Court having acted without jurisdiction but  having acted in the  exercise of  its inherent  powers to do  justice  between the parties. 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) 9th 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 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:

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"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."

Based on the aforesaid principle, the Division Bench  of the Calcutta High Court, in almost identical  circumstances  in Rameswar Sarkar’s case, allowed the  application for  withdrawal of the suit in exercise of  inherent powers under Section 151 of the Code of Civil  Procedure, upon holding that  when  through mistake the  plaintiff had withdrawn the suit, the Court would not be  powerless to set aside the order  permitting withdrawal   of the suit. We are of the view that the law having been  correctly stated in the aforesaid case, the learned Single  Judge of the Calcutta High Court in making an order on  the same lines did not commit any error of jurisdiction  which calls for any interference in these appeals.   The appeals are, therefore, dismissed, but without  any order as to costs.