Gujarat High Court
Indian Oil Corporation Ltd & vs Prakash Trading Company on 24 April, 2014
Author: R.D.Kothari
Bench: R.D.Kothari
C/SCA/6127/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6127 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI
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1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair copy NO
of the judgment ?
4. Whether this case involves a substantial question NO
of law as to the interpretation of the constitution
of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ? NO
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INDIAN OIL CORPORATION LTD & 1....Petitioner(s)
Versus
PRAKASH TRADING COMPANY....Respondent(s)
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Appearance:
MR MANISH R. BHATT FOR MS MAUNA M BHATT, ADVOCATE for the
Petitioner(s) No. 1 - 2
MR BS NILAK, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 24/04/2014
ORAL JUDGMENT
1. Origin of this petition, in a sense, lay in obscurity because it arises from non-existent suit. To be precise, application for "restoration" (Exh.112) of suit came to be Page 1 of 11 C/SCA/6127/2010 JUDGMENT allowed by the trial court in exercise of power under Section 151 of CPC. Hence, the present petition. This petition, thus, therefore, raises question of scope of Section 151 of CPC and whether suit can be restored in exercise of inherent powers?
2. Few relevant facts are thus;
2.1 The respondent had instituted Regular Civil Suit No.1442 of 1995 before the Senior Division Court at Baroda in substance praying that petitioner herein be restrained from interfering or obstructing the plaintiff, - in taking delivery of Lot Nos.11 and 12 material. Earlier, the petitioner herein had issued advertisement to dispose of scrap and allied materials in 1994-95. Respondent's bid was accepted in respect of Lot Nos.11 and 12. This bid was accepted in 1995.
2.2 It is the say of the petitioner that it has issued delivery order on 23.2.1995. The respondent did not take delivery. Thereafter, some communication has taken place between the parties and finally, respondent has filed present suit against the petitioner. In the said suit, respondent had prayed for interim injunction. Said application was partly allowed by learned trial court by order dated 19.12.1996. Said order was challenged in AO before this Court by petitioner i.e. Appeal from Order No.268 of 1997. In the said AO, learned advocate for respondent had placed on record the letter received by him from his client. In pursuance to that letter, this Court has disposed of AO and has also passed an order that in view of that, suit be also treated as disposed of. This Court had passed said order on 15.7.1997. Thereafter, on respondent's Page 2 of 11 C/SCA/6127/2010 JUDGMENT application (Exh.78), learned trial court had passed an order on 6.2.1998 directing the petitioner to hand over the disputed material to the plaintiff. The petitioner had filed review application wherein the petitioner has pointed out that High Court has already disposed of the suit and therefore, respondent's application is without jurisdiction. The trial court passed a detailed order on review application and same was rejected by learned trial court. The petitioner filed MCA No.782 of 1998 against the said order of the learned trial court. Said MCA was disposed of by this Court on 8.5.1998 in view of the statement made by learned advocate for respondent that respondent would lift the Lot Nos.11 and 12 within 15 days. Thereafter, learned trial court has passed an order below Exh.1 on 15.5.2008 that suit is disposed of in view of High Court's order in (AO) No.268/1997. Thereafter, respondent has submitted an application on 16.9.2008. In his short application, applicant had prayed to restore the suit. Learned trial court, after hearing the learned advocates for the parties, was pleased to allow the application by order dated 16.3.2010. Propriety and validity of this order is herein challenged by the petitioner.
3. Heard learned Senior Advocate Shri Manish R. Bhatt with learned advocate Ms.Mauna Bhatt on behalf of the petitioner. Learned advocate Mr.Bhut has submitted that he has instructions to appear on behalf of learned advocate Mr.B.S.Nilak for the respondent.
4. Learned Senior Advocate Shri Manish R. Bhatt for the petitioner has, after drawing attention to the facts of the case and to the relevant material on record, has pointed out that Page 3 of 11 C/SCA/6127/2010 JUDGMENT in the circumstances of the case, the order passed by the learned trial court below Exh.112 is bad and illegal. It was submitted that suit was disposed of as early as on 15.7.1997 by this Court and that granting of application by the learned trial court in 2010 was bad and illegal.
5. While allowing the application, learned trial court has observed that suit is not disposed of by way of dismissed for default nor it is dismissed for "want of plaintiff's evidence"
and therefore, Order 9 of CPC would not be applicable. Learned trial court took the view that defendant has not made compliance of order passed by the High Court and therefore, the order of this Court disposing of the suit would not be operative. In view of non-compliance by the defendant, suit remained undisposed of. Holding so, it concluded that it is a fit case to exercise the power under Section 151 of CPC. Accordingly, it allowed the application of the respondent and Regular Civil Suit No.1442 of 1995 was taken on record to proceed further.
6. Invoking powers under Section 151 of CPC in the present case is neither proper nor legal. The order of the learned trial court gives impression that the parties or precisely the petitioner - defendant was to take some steps or was required to do something pursuant to the order passed by this Court. This view is erroneous. It would be clear from the order passed by this Court. This Court (Coram : M.S.Shah,J.) (as he then was) on 15.7.1997 has passed an order, which reads thus;
" Mr.G.I.Desai,learned Advocate appearing for opponent no.1 places on record letter received by him from his client stating that the material of lot nos. 11 Page 4 of 11 C/SCA/6127/2010 JUDGMENT and 12 will be lifted as under:
(1) The material of lot no.11 for which payment has been made, will be lifted by opponent no.1 on or before July 30, 1997, and (2) In respect of lot No.12 opponent no.1 shall make payment on or before August 7, 1997 and shall lift the entire material on or before August 30, 1997.
The said letter received by Mr.Desai from opponent no.1 is taken on record.
The parties are directed to abide by the aforesaid consensus. Opponent no.1 shall file an undertaking to the above effect before this Court on or before July 22, 1997.
In view of the aforesaid arrangement Mr.M.R.Bhatt learned Advocate for the appellant seeks leave to withdraw the Appeal from Order as having become infructuous. Permission granted. Appeal from Order No.268/97 accordingly stands disposed of on the aforesaid terms. The suit filed by opponent no.1 original plaintiff before the learned Civil Judge (S.D.) Baroda, being Regular Civil Suit No. 1442 of 1995 is also treated as disposed of as infructuous in view of the above arrangement.
Notice discharged. No order as to costs."
7. Thus, it would appear that petitioner - defendant neither asked by this Court to make any compliance nor the parties have agreed to any arrangement from which mutual compliance may be believed. The view taken by the learned trial court, therefore, is erroneous. Besides that, after the above order passed by this Court, respondent has submitted an application (Exh.78) wherein the learned trial court has directed the defendant to permit the respondent to lift the Page 5 of 11 C/SCA/6127/2010 JUDGMENT material. The petitioner had filed an application seeking review of the said order passed below Exh.78. The said review application of the petitioner was rejected by the learned trial court. The petitioner approached this Court by filing Civil Revision Application No.471 of 1998. This Court by order dated 8.5.1998 has disposed of the aforesaid CRA, which reads, thus;
"Mr.G.I.Desai, Ld.Advocate for the respondents makes a statement under the instructions of his client that the material of the Lot No.11 and 12, shall be lifted within 15 days, without any categorisation.
In view of the above, Mr.M.R.Bhatt, Ld. Advocate for the petitioner seeks permission to withdraw this CRA. Permission granted. The CRA is dismissed as withdrawn. Notice discharged."
8. Despite giving time bound assurance by the respondent to lift the material, the respondent has not cared to comply and lift the material. An assurance was given by the respondent earlier at the time of hearing of Appeal from Order No.268 of 1997 and on the basis of statement made on his behalf, said Appeal from Order was disposed of by an order dated 15.7.1997. Thereafter, in CRA preferred by petitioner, respondent has again made statement before this Court and in view of statement, said CRA was disposed of by this Court on 8.5.1998. The statement made before this Court in said CRA was to lift the material within 15 days. The respondent was to lift the material. Pursuant to statement on behalf of respondent, order was passed on 8.5.1998. Thereafter, the petitioner has written RPAD letter - detailed letter calling upon the respondent to lift the material. It is dated 30.5.1998. The respondent did not respond. Thereafter, Page 6 of 11 C/SCA/6127/2010 JUDGMENT another RPAD letter was written by the petitioner on 21.7.1998. It is also a detailed letter. The respondent did not respond to this letter also.
9. Learned trial court has rightly held that Order 9 of CPC is not applicable. In the present case, learned trial court had disposed of the suit by order dated 15.5.2008 in view of the order passed by this Court in Appeal from Order No.268 of 1997. In Appeal from Order No.268 of 1997, no conditional order was passed by this Court nor this Court directed any mutual compliance. Holding of the learned trial court, therefore, that petitioner - defendant has failed to make arrangement as per the order passed is, as observed above, erroneous. Bare reading of the above order passed by this Court would make it clear that respondent has made statement to lift the material and after making statement before this Court, respondent has not cared to lift the material. Invoking Section 151 of the CPC in the circumstances of the present case was uncalled for. Further, the proper course for the respondent was to move this Court as the order of disposing of the suit came to be passed by this Court. For that reason also, interference by the learned trial court is not proper. Learned trial court ought to have desisted from invoking inherent power in favour of respondent considering the conduct of the respondent.
10. Recently, Section 151 of CPC was considered by the Supreme Court in the case of Ram Prakash Agarwal & Anr. v. Gopi Krishan (Dead Through LRs.) and Ors., reported in (2013) 11 SCC 296. In that case, party had applied under Order 9 Rule 13 read with Section 151 of CPC for setting aside the judgment and decree passed earlier by the trial Page 7 of 11 C/SCA/6127/2010 JUDGMENT court. That application was rejected by the trial court. Against that, party had filed a writ petition before the High Court which came to be allowed. The party, who had applied for setting aside the decree passed by the trial court, was a third party and not the party to the suit, his writ petition allowed by the High Court. In further appeal before the Supreme Court, the Supreme Court had considered the earlier cases and was pleased to allow the said appeal. Relying on Ram Prakash Agarwal's case (supra), following principles can be laid down for considering an application under Section 151 of CPC :
(1) Section 151 is not a substantive provision. That being so, it does not confer any right to any person to get relief of any kind.
(2) It is procedural provision.
(3) Its importance lay in the fact that it would be activated when complaint is about conducting of cases inconsistent to or in violation of principles of justice and equity. In all those cases, none of the gaps or any kind of deficiency in the procedural provision would come in the way of the Court.
(4) Save in cases of fraud committed upon the Court, two conditions may be taken note of (I) Section 151 can be invoked in a pending suit and it cannot be invoked in dispose of suit and (II) Invocation should not be by the third party and it should be the party to the proceedings.Page 8 of 11
C/SCA/6127/2010 JUDGMENT
(5) Inherent powers cannot be used to re-open the settled
matters.
(6) To that extent i.e. inability of Court to re-open the
settled matters, it can be said that Legislature has abrogated the powers of the Court.
(7) Inherent powers cannot be invoked or exercised in contravention of or in conflict with or upon ignoring the express and specific provisions of law.
(8) It should be consistent with general principles of law and with the intention of the Legislature.
(9) In exceptional cases, it can be invoked while exercising powers under Order 9 Rule 13.
(10) Fraud vitiates everything and no technical procedural barrier would come in the way of the Court when it is a case of practicing fraud upon the Court. Inherent powers may be exercised to undo the result achieved by practicing fraud upon the Court. In those cases, length and breadth of power knows no limit.
(11) Similarly, the Court can resort to inherent powers to rectify any mistake committed by Court.
(12) Similar to the original jurisdiction of the trial court, the appellate court can also exercise power under Section 151 of the CPC.Page 9 of 11
C/SCA/6127/2010 JUDGMENT (13) If it is a case of committing fraud upon the party - as distinct from practicing fraud upon the Court - then proper and correct course for the aggrieved party is to file an appeal or to challenge such order or decree in independent and separate suit, and not application under Section 151.
11. Whether the suit can be restored in exercise of inherent powers? It is doubtful. Since Section 151 does not confer any right, prayer of restoration of suit must fail, if the application is filed only under Section 151. The suit cannot be restored solely under Section 151, save exceptional circumstances. If, on the other hand, the application is filed under Order 9 or under any other substantive provision then, in a given case, if required, Section 151 may be pressed into service in aid of Order 9 or other such substantive provisions, to meet with ends of justice.
11.1 In the present case, conduct of the respondent and the circumstances of the case shows that invoking inherent powers by the trial court is neither proper nor legal. Above discussion would show that exercise of power under Section 151 is neither proper nor legal.
12. In view of above, present petition is allowed. The order dated 16.3.2010 passed by learned 11 th Additional Senior Civil Judge, Vadodara passed below Exh.112 in Regular Civil Suit No.1442 of 1995 is hereby quashed and set aside. Rule is made absolute.
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(R.D.KOTHARI, J.)
vipul
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