Madhya Pradesh High Court
Kamal vs Laxmibai on 6 May, 2019
...1... M.P.No.1587/2019
HIGH COURT OF MADHYA PRADESH BENCH AT
INDORE
M.P. No.1587/2019
(Kamal v. Laxmibai)
Indore dt.06.05.2019
Shri Rajeev Bhatjiwale, Advocate for the petitioner.
Shri A.S. Garg, learned Senior Advocate with Shri H.
Wadnerkar, Advocate for the respondent No.1.
Shri Vishal Lashkari, Advocate for respondent No.2. Heard.
(ORDER)
2. The petitioner has filed the present petition against the order dated 12.3.2019 whereby, the executing court has rejected the application filed under Section 151 of CPC by him.
3. The respondent No.1 being a owner of shop measuring 10 x 8 ft, situated in Ward No.20, House No.64/8, Bisanima Dharmshala Mahavir Marg, Baniawadi Dhar, filed a suit for eviction against the respondent No.2 on 1.12.2015. On 9.12.2015, the plaintiff and the defendant have filed the application under Order 23 Rule 3 of CPC for disposal of the suit by way of compromise.
4. By order dated 12.12.2015, the suit was disposed of by granting 3 years time to the respondent No.2 to vacate and handover the vacant possession to the plaintiff. He has also been directed to pay the rent at the rate of Rs.1000/- per month. Before passing the aforesaid decree, the statements of plaintiff and defendant were recorded by the Civil Judge Class II. After the expiry of 3 years, when the respondent No.2 did not handover the vacant possession, the respondent No.1 being a decree holder filed the application for execution of the judgment and decree on 22.1.2019, which is ...2... M.P.No.1587/2019 registered as MJC.No.2/2019. Vide order dated 7.2.2019, notices were issued to the respondent No.2. On 5.3.2019, one of the counsel appeared on behalf of the present petitioner as an objector, but the court has declined to accept his vakalatnama. Thereafter, on 12.3.2019, the present petitioner filed an application under Section 151 of CPC that the respondents No.1 and 2 have obtained the decree by way of collusion and in fact he is in possession in the shop in question since 2002 and behind his back the decree had been obtained. He has also filed a civil suit for the relief of declaration that the judgment and decree dated 12.12.2015 be declared as void.
5. The aforesaid application was opposed by the present respondent No.1. By order dated 12.3.2019, the learned civil court has dismissed the application, as the petitioner was neither the party in the civil suit nor in the execution proceeding. Therefore, the proceeding of the executing court cannot be stayed.
6. Being aggrieved by the aforesaid order, the present petition has been filed before this court.
7. Shri Rajeev Bhatjiwale, learned counsel submits that the petitioner filed the application under Section 151 of CPC, but the learned executing court ought to have considered it under the provisions of Order 21 Rule 99 and 100 of CPC. Such type of application is liable to be decided as a regular civil suit. The petitioner and the respondent No.2 are real brother, but he colluded with the respondent No.1 and the decree has been passed. Partition in the family had taken place in 2002 and the respondent No.2 was not in a possession of the suit shop. Hence, the learned executing court ought to have allowed the application under ...3... M.P.No.1587/2019 Section 151 of CPC, in the interest of justice.
8. Learned counsel for the respondent No.1 submits that the petitioner has no right to object the judgment and decree on the basis of a certificate issued by the competent authority under the M.P. Shops and Establishments Act, 1950. In the said certificate the address of the shop is mentioned as Ramkrishna Complex, 51 Baniyawadi, Dhar whereas, the address of the suit premises mentioned in the civil suit is Ward No.20, House No.64/8, Bisanima Dharmshala Mahavir Marg, Baniawadi Dhar. He further submits that the petitioner has filed the application under Section 151 of CPC, seeking stay of the execution proceeding therefore, the learned executing court has rightly rejected the same. He has also filed a civil suit against the respondent therefore, he cannot be permitted to pursue two remedies simultaneously.
9. Shri Vishal Lashkari, learned counsel for the respondent No.2 submits that the shop for which the decree has been passed and the shop for which the certificate under the M.P. Shops and Establishments Act, is issued is one and the same shop and the suit was filed against the respondent No.2 and in which he appeared and did agree to handover the vacant possession. Now the dispute is mainly between the petitioner and the respondent No.1.
10. The petitioner after appearance in the execution proceeding for objecting the judgment and decree ought to have filed an application under Order 21 Rule 99 to 100, CPC. Upon filing of such an application, the executing Court is liable to decide as a suit. The Apex court in the case of Shipping Corporation of India Ltd. V. Machado Brothers & Ors, (2004) 11 SCC 168 has held thus :-
19. Coming to the maintainability of I.A.No.20651/2001, the learned counsel for the appellant in support of his contention ...4... M.P.No.1587/2019 that an application under Section 151 CPC for the dismissal of the suit on the ground of same having become infructuous was maintainable, has relied on number of judgments. In M/s. Ram Chand & Sons Sugar Mills Pvt.Ltd. Barabanki (U.P.) vs. Kanhayalal Bhargava & Ors. (AIR 1966 SC 1899) while discussing the scope of Section 151 CPC this court after considering various previous judgments on the point held:-
"The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercise if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of S.151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the court."
20. From the above, it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the process of court. Therefore, the court exercising the power under section 151 CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application.
11. The High Court of Karnataka in the case of Mrs. Mangalabai V/s. The Sangli Bank Ltd, AIR 2003 Kar. 76 has observed that the power conferred u/s. 151 of the C.P.C. is an inherent power in addition and complimentary to the express powers granted under the Code. It can be exercised amongst other things to correct its own wrong or to recall its earlier order. Para 13 of the aforesaid judgment is reproduced below :
"13. Section 151 of Code of Civil Procedure saves the inherent power of Court. It reads :
"Nothing in the code shall be deemed to limit or ...5... M.P.No.1587/2019 otherwise affect the inherent power of Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court."
This inherent power is in addition and complimentary to the express powers granted under the Code. It can be exercised amongst other things to correct its own wrong or to recall its earlier order, if the proceedings culminated in the order suffered from inherent lack of jurisdiction. No doubt inherent power cannot be exercised if it were to operate either expressly or impliedly against any of the other power granted to the Court under other provisions of Code of Civil Procedure."
12. The petitioner has not only filed an application under Section 151 of CPC but argued the same. If he has filed application under the wrong provisions then, he ought to have requested the court to decide the same under Order 21 Rule 97 of CPC, but he argued on application under the provisions of Section 151 of CPC and when the same has been rejected, now he is contending that the matter may be remanded to the trial court with the direction to decide the said application under the provisions of Order 21 Rule 97 of CPC. Now a days tendency has been increased to file the application under Section 151, CPC in a very casual manner despite there being a specific provision in the CPC. Before filing the application, it is the duty of the counsel appearing for the parties to lis, to search and examine the specific provision available in the CPC. The petitioner has blindly filed application under Section 151 of CPC, seeking direction that the decree be not executed against him. Though it is settled law that the court must see the contents of the application not wrong provision under which it has been filed, but simultaneously, it is a duty of counsel also to examine the provisions of law before filing such an application. The valuable rights of the parties are in the hands of the counsel and it is expected from them at-lease to go through the provision and file ...6... M.P.No.1587/2019 the application. The mistake can be corrected before deciding the such application. In the present case, the petitioner filed an application under Section 151 of the CPC and the court has decided it rightly. No interference is called for in the order impugned.
13. If the petitioner is saying that application filed under Order 21 Rule 97 of CPC, have been decided then, such decision is liable to be decided by way of first appeal not by way of writ petition. The petitioner has also filed a civil suit seeking declaration that the decree has been obtained by fraud and the same is not binding on him. Therefore, he is not permitted to pursue two remedies simultaneously. Had he not filed the suit to challenge the judgment and decree this court would have granted him liberty to file fresh application under Order 21 Rule 99 - 100 of CPC. He cannot pursue two remedies simultaneously. Hence, the petition is accordingly, dismissed.
(VIVEK RUSIA)
JUDGE
Digitally signed by Shailesh
Sukhdev
SS/- Date: 2019.05.14 15:15:43
+05'30'