Karnataka High Court
Cottage Industries Exposition Ltd vs Smt. Ratna M B on 27 March, 2019
Equivalent citations: AIRONLINE 2019 KAR 1052, 2019 (2) AKR 513, 2019 AIR CC 1958 (KAR), (2019) 4 KCCR 3185
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27th DAY OF MARCH , 2019
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION Nos.5452-5475/2019 (GM-CPC)
BETWEEN:
COTTAGE INDUSTRIES EXPOSITION LTD.,
NO.3 (OLD NO.5) CUNNINGHAM ROAD,
(ALSO CALLED SAMPANGI RAMASWAMY STREET),
BANGALORE-560 052,
A REGISTERED COMPANY
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
NATARAJAN.
... PETITIONER
(SRI D. R. RAVISHANKAR, ADVOCATE)
AND:
1. SMT. RATNA M B
(ALSO KNOWN AS B.E. RATNA)
AGED ABOUT 66 YEARS,
D/O LATE SRI L. H. ESHWARA MURTHY
NO.13 1ST MAIN ROAD,
NEHRU NAGAR
BANGALORE-560 020.
2. SRI B.E. RAMAKRISHNA
AGED ABOUT 64 YEARS,
S/O LATE SRI L. H. ESHWARA MURTHY,
NO.13, 1ST MAIN ROAD,
2
NEHRU NAGAR,
BANGALORE-560 020.
SINCE DECEASED REPRESENTED BY LRs
2(A) SMT. SUCHETHA,
AGED ABOUT 56 YEARS,
W/O LATE SRI B. E. RAMAKRISHNA,
2(B) R. LAKSHATH,
S/O LATE SRI B.E. RAMAKRISHNA,
BOTH ARE RESIDING AT
NO.13, 1ST MAIN ROAD,
NEHRU NAGAR,
BANGALORE-560 020.
3. SMT. C. VENKATALAKSHAMMA,
AGED ABOUT 81 YEARS,
W/O LATE SRI L. H. ESHWARA MURTHY
NO.13, 1ST MAIN ROAD,
NEHRU NAGAR,
BANGALORE-560 020.
4. SMT. B. E. SHASHIKALA,
AGED ABOUT 60 YEARS,
D/O LATE SRI L. H. ESHWARA MURTHY
NO.13, 1ST MAIN ROAD,
NEHRU NAGAR,
BANGALORE-560 020.
5. SMT. C. VENKATALAKSHAMMA
AGED ABOUT 66 YEARS,
W/O LATE SRI L. H. ESHWARA MURTHY
NO.13, 1ST MAIN ROAD,
NEHRU NAGAR
BANGALORE-560 020
6. SMT. ESHWARI GOPINATH,
ALSO KNOWN AS B.E. ESHWARI,
AGED ABOUT 62 YEARS,
3
D/O LATE SRI L. H. ESHWARA MURTHY,
NO.13, 1ST MAIN ROAD,
NEHRU NAGAR,
BANGALORE-560 020.
7. SMT. BINDU NEELAKANTA,
ALSO KNOWN AS B.E. BINDU
AGED ABOUT 38 YEARS,
D/O LATE SRI L. H. ESHWARA MURTHY,
NEHRU NAGAR,
BANGALORE-560 020,
8. SRI B.E. RAMACHANDRA,
AGED ABOUT 49 YEARS,
S/O LATE SRI L. H. ESHWARA MURTHY,
NO.13, 1ST MAIN ROAD,
NEHRU NAGAR,
BANGALORE-560 020.
... RESPONDENTS
(BY SRI UDAY HOLLA, SENIOR COUNSEL FOR
SRI VIVEK HOLLA, ADVOCATE FOR CR1/ TO R7)
****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDERS DATED 10.08.2018 PRODUCED HEREWITH AS
ANNEXURE-C1, THE ORDER DATED 17.01.2019 ON
I.A.NO.5/2018 PRODUCED HEREWITH AS ANNEXURE-J1 AND
THE ORDER DATED 17.01.2019 ON I.A.NO.6/2018 PRODUCED
HERWITH AS ANNEXURE-K1 MADE IN O.S.NO.3997/2012 ON
THE FILE OF XII ADDL. CITY CIVIL & SESSION JUDGE,
BENGALURU (CCH NO.7). TO QUASH THE ORDERS DATED
10.08.2018 PRODUCED HEREWITH AS ANNEXURE-C2, THE
ORDER DATED 17.01.2019 ON I.A.NO.5/2018 PRODUCED
HEREWITH AS ANNEXURE-J2 AND THE ORDER DATED
17.01.2019 ON I.A.NO.6/2018 PRODUCED HEREWITH AS
ANNEXURE-K2 MADE IN O.S.NO.5003/2012 ON THE FILE OF XII
ADDL. CITY CIVIL & SESSION JUDGE, BENGALURU (CCH NO.7)
AND ETC.
4
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, ARE COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
All these writ petitions are filed by the defendant against the Order dated 17th January, 2019 on I.A.5/2018 rejecting the application to recall the order dated 10.8.2018 and directing the defendant to pay the Court fee as directed on 3rd August, 2017; and the Order dated 17th January, 2019 on I.A.6/2018 allowing the application to recall the order dated 10th August, 2018 in so far as it pertains to hearing of additional issue No.1 regarding maintainability of the suits as a preliminary issue in O.S.Nos. 3997/2012 and connected suits (O.S.Nos. 5003/2012, 5005/2012, 5432/2012, 5433/2012, 5434/2012, 5435/2012 and 5458/2012). 5
I - FACTS OF THE CASE
2. The respondents, who are plaintiffs filed suits for ejectment against the present petitioner-defendant for vacating and delivering vacant physical possession of the suit "B" schedule property to them and to direct the defendant to pay a sum of Rs.1,40,000/- per month at such rate which the Court is pleased to determine, as damages, mesne profits to them from the date of the suits till the defendant hands over the vacant physical possession of the schedule 'B' property to the plaintiffs and to determine the mesne profits payable by the defendant under Order XX Rule 12 of the Code of Civil Procedure along with interest at the rate of 24% per annum on the sum decreed contending that the plaintiffs are the owners of the suit schedule properties and they had executed the Lease Deed on 3.3.1979 in favour of the defendant whereunder the property described in the 'A' schedule property was leased to the defendant and the same was registered in the Office of the Sub-Registrar, Gandhinagar, Bangalore. It was their further contention that 6 the said lease expired long back as there was no renewal and hence the defendant is in illegal occupation of the schedule 'A'. The plaintiffs and the other legal heirs of late Sri L.H. Eshwara Murthy partitioned 'A' schedule property amongst themselves as per the final decree for partition which was registered on 21.9.2007. A portion of the 'A' schedule property which is morefully described in Schedule 'B' herein had fallen to the share of the plaintiffs and the plaintiffs thus became the absolute owners of the 'B' schedule property.
3. It is the further case of the plaintiffs that the defendant was paying a sum of Rs.2,450/- per month till February, 2009 for the schedule 'A' property and he was paying the monthly rent by issuing two cheques for a sum of Rs.1,225/- each to the plaintiff's two brothers viz., B.E. Ramakrishna and B.E. Ramachandra and the rents upto February, 2009 were received by plaintiff, her brother, her sister and her mother. It is further contended that the plaintiffs required the said 'B' schedule property for bonafide 7 use and occupation as the private road is leading to their respective properties in the schedule 'A' property. The plaintiffs had terminated the lease after the expiry of the Lease Deed by issuing notice on 22.9.2010 to the defendant. It is further contended that the defendant had not sent reply to the plaintiffs' notice. The plaintiffs further submitted that they continued their occupation of the schedule 'B' property subsequent to the termination of the lease unlawfully and therefore, the defendant is liable to pay the mesne profits to the plaintiffs for the wrongful use and occupation of the suit schedule 'B' property which is situated in the prime locality of Bangalore City. Therefore, they contended that the defendant is liable to pay the mesne profit to them at the rate of Rs.1,40,000/- per month or at such rate as the Court determines from the date of the suit till the defendant hands over vacant possession of the schedule 'B' property to them.
4. It is further contended that inspite of notice issued to quit and deliver vacant possession of the suit schedule 'B' 8 property, the defendant failed to vacate and deliver vacant possession of the schedule 'B' property and continued to remain in wrongful use and occupation of the suit schedule 'B' property. Therefore, the plaintiffs filed the suits for the relief as sought for.
5. The defendant filed written statement in all the suits and also filed counter claim seeking independent judgment and decree be passed in favour of the defendant and against the plaintiffs contending that the plaintiffs predecessor executed an agreement in respect of suit schedule 'B' property for a sum of Rs.3 lakhs as the entire sale consideration was made by the Defendant in the month of February, 1980 to execute a registered Sale Deed in favour of the defendant and also filed counter claim to declare that the defendant is the owner in possession of the buildings and all the super structures standing in the suit property in terms of and pursuant to February 1980 agreements and transaction and for permanent injunction restraining the plaintiffs, their 9 agents or anybody acting under or through the plaintiffs from interfering with the peaceful possession and enjoyment of the suit schedule property and declare that the grants made in favour of him in February 1980 are irrevocable, alienating/encumbering or creating any third party interest in respect of the suit schedule properties and hence, sought for dismissal of the suits.
6. The plaintiffs filed applications for rejection of counter claim on the ground that proper court fee is not paid by the defendant for counter claim and to grant the reliefs as sought in all the suits. The said application is numbered as I.A.3 in all the suits which came to be disposed off by the order dated 26.7.2014 holding that the counter claim filed by the defendant in the present form is not maintainable. The said order was the subject matter of writ petition in W.P.No.49387/2014 and other writ petitions. This Court after hearing both the parties, by the order dated 8.9.2015 allowed the writ petitions holding that the counter claim 10 made in each of the suits are maintainable and directed the trial Court to club all the suits for recording common evidence.
7. The defendant filed I.A.4/2018 in O.S.No.3997/2012 and similar application in all the suits for framing issues specifically contending that the preliminary issue may be framed with regard to maintainability of the suits for ejectment as the suits for ejectment is not maintainable as the relief for ejectment was valued below Rs.3,00,000/- in all the suits. The trial Court considering the applications and objections, by the order dated 10.8.2018 framed the additional issues and ordered additional issue No.1 to be heard as a preliminary issue.
8. Thereafter the petitioner-defendant filed an application under Section 151 of the Code of Civil Procedure to recall the order dated 10.8.2018 which came to be numbered as I.A.5/18 in each of the suits and in turn, the plaintiffs filed objections to the said applications under 11 Section 151 of the Code of Civil Procedure requesting the Court to consider the additional Issue No.1 as the regular issue instead of preliminary issue which came to be numbered as I.A.6/18 in each of the suits of the plaintiffs'. The trial Court considering the applications and objections by the order dated 17.1.2019 dismissed the application-I.A.5/18 filed by the petitioner-defendant and allowed the application
- I.A.6/18 filed by the plaintiffs-respondents. Hence, the present writ petitions are filed by the defendant.
II - ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES
9. I have heard the learned Counsel for the parties to the lis.
10. Sri D.R. Ravishankar, learned Counsel appearing for the petitioner-defendant contended that the impugned orders passed by the trial Court on I.A.Nos.5/18 and 6/2017 are erroneous and contrary to the material on record. He would further contend that in the course of the order it is 12 observed by the trial Court that the defendant-Company has sought for specific performance of the contract and therefore, the prayer for declaration of ownership would automatically go away as the defendant-petitioner will become owner if he succeeds in the prayer relating to specific performance and therefore, the trial Court by the order dated 10.8.2018 directing the petitioner-defendant to pay the Court fee in terms of the order dated 3.8.2017 would not arise at all.
11. The learned Counsel would further contend that in view of the provisions of Section 13 of the Karnataka Court Fees and Suits Valuation Act, the parties are permitted to amend the prayer to restrict the claim and permit to amendment so that the Court fee paid would be adequate for the claim made in the amended plaint. Therefore, the trial Court by the order dated 10.8.2018 directing the defendant to pay the Court fee as per the order dated 3.8.2017 does not arise at all. Therefore, the trial Court ought to have allowed 13 the applications filed by the petitioner-defendant to I.A.5/2018 . Therefore, the same is not sustainable.
12. The learned Counsel would further contend that the error committed by the trial Court in allowing I.A.6/2018 by the order dated 17th January, 2019 is not sustainable as the trial Court has proceeded to hold that the valuation of the suit depending upon the valuation made by the plaintiffs and not on the basis of the contentions raised in the written statement. The reasoning of the learned Judge is unsustainable in law for the reasons that the plaintiffs have valued the relief for ejectment by computing the annual rent which is below Rs.25,000/-. The relief for ejectment is an independent relief based on independent cause of action. He would further contend that the issue relating to the maintainability of the suit for ejectment directing to be heard as preliminary issue by the order dated 10.8.2018 has become final and the parties are bound by the order and the question of recalling the said order in the present manner is 14 not permissible. Therefore, the order passed by the trial Court is unsustainable.
13. The learned Counsel would further contend that the question of jurisdiction with regard to taking cognizance of the suits for ejectment depends upon the valuation of the relief of ejectment and the relief of ejectment is with regard to the valuation, if cognizable by the Court of Small Causes, in that event the City Civil Court cannot entertain the suit for ejectment and this aspect has not been taken note by trial Court. Therefore, he sought to allow the writ petitions by setting aside the order passed by the trial Court. He would further contend that the consent of the parties cannot confer jurisdiction.
14. In support of his contentions, learned Counsel for the petitioner relied upon the following dictums of this Court:
i) Sri Sandeep Chowhan & Another -vs- Sri Krishnaraj Bhat reported in ILR 2015 KAR 4939;15
ii) Dr. Jagmittar Sain Bhagat -vs- Director, Health services, Haryana and Others reported in AIR 2013 SC 3060; and
iii) Abdul Wajid -VS- A.S. Onkarappa reported in ILR 2011 KAR 229.
15. Per contra, Sri Udaya Holla, learned Senior Counsel for the plaintiffs-respondents sought to justify the impugned orders passed by the trial Court and contended that if the mistake committed by trial Court can be rectified by exercising inherent powers under Section 151 of the Code of Civil Procedure, the same has been done in the present case. He would further contend that if the Court has power to recall the order in respect of defendant's case with regard to Court fee, the same yardstick should be applied to the plaintiffs' also. The Small Causes Court has no jurisdiction to decide the complicated questions of law and should be dealt with only by the Civil Court. Earlier the Small Causes Court referred the matter to the Civil Court and subsequently, the 16 City Civil Court referred to the Small Causes Court. The order passed by the trial Court with regard to Court fee earlier is not challenged. The petitioner has not come to the Court with clean hands and hence, he is not entitled to any relief before this Court. He would further contend that though the counter claim is with regard to specific performance, he is enjoying the property in prime locality even without paying rents. The City Civil Court has got powers to recall the order, if it was passed by mistake or fraud played by the defendant in exercise of inherent powers. Therefore, he sought to dismiss the writ petitions.
16. In support of his contentions, the learned Senior Counsel for the plaintiffs-respondents sought to rely upon the following judgments:
i) The Newabganj Sugar Mills Co. Ltd. and Others
-vs- The Union of India and Others reported in (1976)1 SCC 120 para-4;17
ii) M/s Jaipur Mineral Development Syndicate, Jaipur -vs- the Commissioner of Income Tax, New Delhi reported in (1977)1 SCC 508 para-5;
iii) Indian Bank -vs- Satyam Fibres (India) Pvt. Ltd.
reported in (1996) 5 SCC 550;
iv) Budhia Swain and Others -vs- Gopinath Deb and Others reported in (1999)4 SCC 396.
III - THE POINTS FOR DETERMINATION
17. In view of the rival contentions urged by the learned Counsel for the parties, the points that arise for consideration in the present writ petitions are:
"1. Whether the trial Court is justified in rejecting the application filed by the defendant under Section 151 to recall the order dated 10.8.2018 directing the defendant to pay the Court fee as directed on 3.8.2017?18
2. Whether the trial Court is justified in allowing the application I.A.6/2018 filed by the plaintiffs under Section 151 of the Code of Civil Procedure to recall the order dated 10.8.2018 in so far as it pertains to hearing the additional issue No.1 regarding maintainability of the suits as a preliminary issue and to consider the said issue during the disposal of the main suits along with other issues in the facts and circumstances of the present case?"
IV - CONSIDERATION
18. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record carefully.
19. It is the specific case of the plaintiffs in all the suits filed for ejectment that the plaintiffs are the owners of the properties in question. The defendant is the tenant and the suit schedule properties are required for bonafide use and occupation of plaintiffs. The defendant filed written 19 statement, denied the averments made in the plaint and filed counter claim, originally sought for six reliefs in the counter claim, including the relief of specific performance of contract, declaration of contract, issuance of permanent injunction, declaration of estoppel. Therefore, the Trial Court, by the Order dated 03.08.2017 directed the defendant to pay court fee on the counter claim. Subsequently, defendant filed an application for amendment of counter claim to substitute the prayers mentioned at (a) to (d), with the prayer to direct the plaintiffs to execute sale deed in favour of the defendant in respect of plaint 'B' schedule property in an area of 9911 sq.ft. of land apart from 'A' schedule property for agreed and paid consideration and for permanent injunction restraining the plaintiffs from interfering with the peaceful possession and enjoyment of the plaint 'A' schedule property by the defendant. The said application came to be allowed on 10th August 2018 and held that, "the defendant proposed to delete the redundant prayers is just and proper, it may be allowed to be deleted as prayed. No substance in the contention of the 20 plaintiffs that only to avoid payment of court fee the prayer is being sought to be amended by the defendant in the counter claim. The said order passed by the Trial Court has reached finality. The plaintiffs have not challenged the said order.
20. Thereafter, the defendant filed an application under Order XIV Rule 5 of Code of Civil Procedure to frame additional issues in view of allowing of the application for amendment. The Trial Court, considering the application and objections and after hearing both the parties, by the Order dated 10th August 2018 allowed I.A.No.4 in part and framed five additional issues and additional issue No.1 to be heard as preliminary issue. The said order passed by the Trial Court has reached finality. Thereafter the defendant filed I.A.No.5/2018 under Section 151 of Code of Civil Procedure to recall the order dated 10.08.2018 directing the defendant to pay the court fee as directed on 03.08.2017. The plaintiffs also filed I.A.No.6/2018 under Section 151 of Code of Civil Procedure to recall the Order dated 10.08.2018 insofar as it 21 relates to hearing additional issue No.1 as preliminary issue. The Trial Court by the impugned order dated 17.01.2019 on I.A.No.5/2018 as per Annexure-J and I.A.No.6/2018 as per Annexure-K dismissed I.A.No.5 filed by the defendant and allowed the I.A.No.6/2018 filed by the plaintiff to recall the order dated 10.08.2018 insofar as additional issue No.1 regarding maintainability of preliminary issue holding that there is no need to consider the additional issue No.1 as preliminary issue and that can be considered during disposal of the main suit along with other suits, mainly on the ground that it is settled principle of law that pecuniary jurisdiction of the Court as determined by the valuation made by the plaintiffs in the plaint and not the contention taken by the defendant and apart from that, pecuniary jurisdiction has attained finality in as much as suits are returned to be presented before the Court of Small Causes and they have been reinstated before the Civil Court on being returned from the Court of Small Causes.
22
21. In Order to decide the controversy between the parties, it is relevant to consider the provisions of Section 151 of Code of Civil Procedure which reads as under:
"151. Saving of inherent powers of Court-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 justice or to prevent abuse of the process of the Court."
22. A careful reading of the said provision makes it clear that nothing in the Code of Civil Procedure shall be deemed to limit or affect the inherent powers of the Court to make such orders as necessary for the ends of justice or to prevent the abuse of the process of the Court. The provisions of Section 151 authorizes the Court to correct its own mistake. The Court may do so suo motu on the application of a party. The object of Section 151 of the Code is to supplement and not to replace the remedies provided for in the Code. Section 23 151 of the Code of Civil Procedure will not be available when there is alternative remedy and the same is accepted to be a well settled ration of law. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions.
23. Though several contentions were urged by the learned counsel for the parties with regard to maintainability of ejectment suit and relied upon various dictums regarding jurisdiction before the City Civil Court, this Court resisted to record any finding on the contentions urged by the learned counsel for the parties regarding maintainability as that is not the issue before this Court. The points for consideration are only with regard to recalling the Order dated 10.08.2018 directing the defendant to pay court fee as directed by the Trial Court on 03.08.2017 and recalling the order dated 10.08.2018 on I.A.No. 6/2018 insofar as additional issue No.1 regarding maintainability of the suit as preliminary issue 24 in exercise of powers under Section 151 of Code of Civil Procedure.
24. As already stated above, both, defendant as well as plaintiffs have not challenged the said orders before this Court. But, both defendant and plaintiffs filed application under Section 151 of Code of Civil Procedure to recall the said orders.
25. It is also not in dispute that the defendants filed an application for amendment under Order VI Rule 17 of Code of Civil Procedure to amend the prayers in the counter claim. The Trial Court has allowed the application for amendment on 10th August 2018. The said order has reached finality and the counter claim filed after the amendment is only with regard to specific performance and permanent injunction and necessarily the defendant has to pay court fee for the relief of specific performance and injunction under the provisions of the Karnataka Court Fee and Suits Valuation Act, 1958.
25
26. Inspite of the said order passed by the Trial Court allowing the amendment application filed by the defendant restricting his claim for specific performance and permanent injunction, amending to delete the declaration and ownership, the defendant need not pay the court fee as the original claim for declaration came to be deleted by way of amendment. But still the Trial Court directed the defendant to pay the court fee as directed on 03.08.2017 for declaration of title, is purely mistake on the Court. Therefore, for the mistake on the part of the Court, the party should not suffer, as it amounts to failure of justice. Under those circumstances, the inherent powers can be exercised under Section 151 of Code of Civil Procedure to rectify such mistakes either by recalling the said order or by passing any other appropriate order. The glaring mistake clearly depicts from the material on record that in view of allowing the application for amendment to counter claim which has reached finality, the defendant need not pay the court fee.
26
27. For the reasons stated above, the first point raised in the present petitions has to be answered in the negative holding that the Trial Court is not justified in rejecting the application filed by the defendant under Section 151 of Code of Civil Procedure to recall the order dated 10.08.2018 directing the defendant to pay court fee as directed on 03.08.2017.
28. It is also not in dispute that all the suits filed by the plaintiffs claiming ownership in respect of the very property in question, but separate suits in respect of the same property against same defendants for ejectment raising various contentions. It is also not in dispute that in all suits, the sole defendant filed counter claim to declare that he is absolute owner and subsequently application came to be filed for amendment which came to be allowed and now restricted his prayer in the counter claim for specific performance and injunction. It is also not in dispute that on 09.11.2011, in all the original suits, the applications filed for amendment came 27 to be allowed and directed plaintiffs to carry out amendment to the plaint before the Small Causes Court in view of the transfer of suits on the point of jurisdiction. It is also not in dispute that the defendant entered appearance in all the suits before the Small Causes Court and amendment to the plaint valuation came to be filed in all the suits before the Small Causes Court and amended valuation was more than Rs.1,00,000/-. The plaintiff sought to transfer all the suits to City Civil Courts. The Small Causes Court, in all the suits on different dates directed to return the plaints. Accordingly, the said suits were filed before Addl. City Civil and Sessions Judge, Bengaluru.
29. Admittedly, earlier the order passed by the Civil Court to transfer all the suits before the Civil Court to Small Causes Court was not challenged by either of the parties.
30. The Small Causes suits were transferred in the year 2012 to City Civil Court is also not challenged. The record also depicts that all the eight suits are clubbed 28 together and plaintiffs in all the suits have already led common evidence by way of affidavit of P.W.1 and marked documents Exs.P.1 to 80 and posted the matter on 06.04.2018 for cross examination of P.W.1. The P.W.1 filed affidavit of evidence stating several facts pertaining to estoppel of the Court jurisdiction to entertain the suit.
31. It is also not in dispute that the orders passed by the Civil Court Exs.P.55 to 72 transferring all the suits to Small Causes Court and thereafter the Order of Small Causes Court Exs.P.73 to 80 returning the plaint to file before the Civil Court and the conduct of the defendant in all the above suits are all facts which have to be gone into in order to decide the additional issue regarding maintainability.
32. In view of the events that took place between the parties and matter being conducted before the Civil Court by both the parties from 2012 till the impugned orders passed and the suits are in progress, it is the settled principle of law that the pecuniary jurisdiction of the Court is determined by 29 the Valuation made by the plaintiff as per the plaint and not on the contention taken by the defendant and the question of pecuniary jurisdiction has already attained finality in the suits as has been returned to be presented before the Small Causes Court and thereafter, they have been reinstituted before the Civil Court by virtue of the Orders passed by the Small Causes Court in the year 2012. The said Orders have reached finality.
33. Taking into consideration the peculiar facts and circumstances of the present case, the Trial Court is of the opinion that there is no need to lead additional issue as preliminary issue and can be considered during disposal of the main suit along with other issues. Accordingly, passed the impugned order by exercising inherent powers under Section 151 of Code of Civil Procedure.
34. The Hon'ble Supreme Court, while considering the provisions of Section 151 of Code of Civil Procedure, in the case of The Newabganj Sugar Mills Co. Ltd. and Others -vs- 30 The Union of India and Others reported in AIR 1976 SC 1152 at para-6 held as under:
6. Rejecting, therefore, the recommendations for solution of the problem arising here, as put forward by counsel for the appellants, we have to devise other measures. We are aware of our limitations:
"The judge" even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life.' Wide enough in all conscience is the field of discretion that remains."* * Benjamin Cardozo's 'The Nature of the Judicial Process, Yale University Press ( 1921) 31 The difficulty we face here cannot force us to abandon the inherent powers of the Court to do. "The inherent power has its roots in necessity and its breadth is co - extensive with the necessity", **Certainly, we cannot go against any statutory prescription. Had India had a developed system of class actions or popular organisation taking up public interest litigation, we could have hoped for relief otherwise than by this Court's order. We lag in this regard, although people are poor and claims are individually trivial. Legal aid lo the poor has a processual dimension. As things stand, if each victim were remitted to an individual suit the remedy could be illusory, for the individual loss may be too small, a suit too prohibitive in time and money and the wrong would go without redress. If there is to be relief, we must construct it here by simple legal engineering.
* Theoretical Basis of Inherent Powers Doctrine - Text material prepared by jim R. Carrigan-Publication of National College of The State Judiciary, USA.32
35. The Hon'ble Supreme Court, in the case of M/s Jaipur Mineral Development Syndicate, Jaipur -vs- the Commissioner of Income Tax, New Delhi reported in (1977)1 SCC 508 at para-5 held as under:
5. A party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons. In case such a party shows, subsequent to the order made by the High Court, declining to answer the reference, that there was sufficient reason for its non-
appearance, the High Court, in our opinion, has the inherent power to recall its earlier order and dispose of the reference on merits. We find it difficult to subscribe to the view that whatever might be the ground for non- appearance of a party, the High Court having once passed an order declining to answer the question referred to it because of the non- appearance of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits. The High Court in suitable cases has, as already mentioned, inherent power to recall the order 33 made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident. Suppose, further, in such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts 34 are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot, override the express provisions of law. Where however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for its non-appearance on the date of hearing.
36. The Hon'ble Supreme Court, in the case of Indian Bank Vs. M/s Satyam Fibres India Pvt. Ltd. 1996 (1996)5 SCC 550 at para-23 held as under:
"23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of Court, the Courts have been 35 held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. (See: Benoy Krishna Mukherjee vs. Mohanlal Goenka AIR 1950 Cal. 287; Gajanand Sha & Ors. vs. Dayanand Thakur AIR 1943 Patna 127; Krishna Kumar vs. Jawand Singh AIR 1947 Nagpur 236; Devendra Nath Sarkar vs. Ram Rachpal Singh ILR (1926) 1 Lucknow 341 = AIR 1926 Oudh 315; Saiyed Muhammad Raza vs. Ram Saroop & Ors. ILR (1929) 4 Lucknow 562 = AIR 1929 Oudh 385 (FB); Bankey Behari Lal & Anr. vs. Abdul Rahman & Ors. ILR (1932) 7 Lucknow 350 = AIR 1932 Oudh 63; Lekshmi Amma Chacki Amma vs. Mammen Mammen, 1955 Kerala Law Times
459.) The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (Ishwar Mahton & Anr. vs. Sitaram Kumar & Ors. AIR 1954 Patna 450) or to set aside the order recording compromise obtained by fraud. (Bindeshwari 36 Pd.Chaudhary vs. Debendra Pd. Singh & Ors. AIR 1958 Patna 618; Smt. Tara Bai vs. V.S. Krishnaswamy Rao, AIR 1985 Karnataka
270)."
37. The Hon'ble Supreme Court, in the case of Budhia Swain and Others -vs- Gopinath Deb and Others reported in (1999)4 SCC 396 at para-6 held as under:
6. What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s Satyam Fibres India Pvt. Ltd.
1996 (5) SCC 550. Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order
(i) obtained by fraud practised upon the Court,
(ii) when the Court is misled by a party, or
(iii) when the Court itself commits a mistake which prejudices a party.
In A.R. Antulay Vs. R.S. Nayak & Anr. AIR 1988 SC 1531 (vide para 130), this Court 37 has noticed motions to set aside judgments being permitted where
(i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,
(ii) a judgment was obtained by fraud,
(iii) a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.
38. The Hon'ble Supreme Court, in the case of Ram Prakash Agarwal and Another -vs- Gopi Krishan and Others reported in (2013)11 SCC 296 at para-13, 14, 18 and 19 held as under:
38
13. Section 151 CPC is not a substantive provision that confers the right to get any relief of any kind. It is a mere procedural provision which enables a party to have the proceedings of a pending suit conducted in a manner that is consistent with justice and equity. The court can do justice between the parties before it. Similarly, inherent powers cannot be used to re-open settled matters.
The inherent powers of the Court must, to that extent, be regarded as abrogated by the Legislature. A provision barring the exercise of inherent power need not be express, it may even be implied. Inherent power cannot be used to restrain the execution of a decree at the instance of one who was not a party to suit. Such power is absolutely essential for securing the ends of justice, and to overcome the failure of justice. The Court under Section 151 CPC may adopt any procedure to do justice, unless the same is expressly prohibited.
14. The consolidation of suits has not been provided for under any of the provisions of the Code, unless there is a State amendment 39 in this regard. Thus, the same can be done in exercise of the powers under Section 151 CPC, where a common question of fact and law arise therein, and the same must also not be a case of misjoinder of parties. The non- consolidation of two or more suits is likely to lead to a multiplicity of suits being filed, leaving the door open for conflicting decisions on the same issue, which may be common to the two or more suits that are sought to be consolidated. Non- consolidation may, therefore, prejudice a party, or result in the failure of justice. Inherent powers may be exercised ex debito justitiae in those cases, where there is no express provision in CPC. The said powers cannot be exercised in contravention of, or in conflict with, or upon ignoring express and specific provisions of the law. (See: B.V. Patankar & Ors. v. C.G. Sastry, AIR 1961 SC 272; Ram Chandra Singh v. Savitri Devi & Ors., AIR 2004 SC 4096; Jet Plywood Pvt. Ltd. v. Madhukar Nowlakha, AIR 2006 SC 1260;State Bank of India v. Ranjan Chemicals Ltd. & Anr., (2007) 1 SCC 97; State of Haryana & Ors. v. Babu 40 Singh, (2008) 2 SCC 85; Durgesh Sharma v.
Jayshree, AIR 2009 SC 285; Nahar Industrial Enterprises Ltd. v. H.S.B.C. etc. etc., (2009) 8 SCC 646; and Rajendra Prasad Gupta v.
Prakash Chandra Mishra & Ors., AIR 2011 SC 1137).
18. Similarly, in Dadu Dayal Mahasabha v. Sukhdev Arya & Anr., (1990) 1 SCC 189, this Court examined the issue as to whether the trial court has the jurisdiction to cancel an order permitting the withdrawal of the suit under its inherent powers, if it is ultimately satisfied that the suit has been withdrawn by a person who is not entitled to withdraw the same. The court held that:
"6. .......the position is well established that a court has the inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties".41
However, the Court pointed out that there is a distinction between cases where fraud has been practised upon the court and where fraud has been practised upon a party, while observing as under:
"7. ........If a party makes an application before the court for setting aside the decree on the ground that he did not give his consent, the court has the power and duty to investigate the matter and to set aside the decree if it is satisfied that the consent as a fact was lacking and the court was induced to pass the decree on a fraudulent representation made to it that the party had actually consented to it. However, if the case of the party challenging the decree is that he was in fact a party to the compromise petition filed in the case but his consent has been procured by fraud, the court cannot investigate the 42 matter in the exercise of its inherent power, and the only remedy to the party is to institute a suit". (Emphasis added)
19. In view of the above, the law on this issue stands crystalised to the effect that the inherent powers enshrined under Section 151 CPC can be exercised only where no remedy has been provided for in any other provision of CPC. In the event that a party has obtained a decree or order by playing a fraud upon the court, or where an order has been passed by a mistake of the court, the court may be justified in rectifying such mistake, either by recalling the said order, or by passing any other appropriate order. However, inherent powers cannot be used in conflict of any other existing provision, or in case a remedy has been provided for by any other provision of CPC. Moreover, in the event that a fraud has been played upon a party, the same may not be a case where inherent powers can be exercised."
43
39. For the aforesaid reasons, the second point raised for consideration has to be answered in the affirmative holding that the Trial Court is justified in allowing I.A.No.6/2018 filed by the plaintiff exercising inherent powers under Section 151 of Code of Civil Procedure to recall the order dated 10.08.2018 insofar as it pertains to hearing additional issue No.1 regarding maintainability as preliminary issue and to consider the said issue during the disposal of the main suit along with other issues. The material on record clearly depicts that the dispute is pending adjudication between the parties from the year 2012. Admittedly, in view of the earlier order passed by the Civil Court, the suits were transferred to the Court of Small Causes and in the year 2012, the Small Causes Court transferred the suit to the Civil Court. The said orders are not at all been challenged either of the parties to the lis. The plaintiff in the suits was examined as P.W.1 and marked the documents Exs.P.1 to P.80. Taking into consideration the peculiar facts and circumstances of the events that took place between the parties, the Trial court has 44 proceeded to pass the impugned order dated 17.01.2019 on I.A.No.6/2018 in the ends of justice and to prevent the abuse of the process of the Court by the parties to the lis. The same is in accordance with law. The petitioner has not made out any ground to interfere with the same in exercise of powers under Article 227 of the Constitution of India.
V - CONCLUSION
40. Admittedly, the defendant also filed I.A.No.5/2018 to recall the order dated 10.08.2018 directing the defendant to pay the court fee as directed on 03.08.2017. The said I.A.No.5/2018 came to be dismissed by the Trial Court and this Court by a detailed order on point No.1 stated supra set- aside the said order passed by the Trial Court and allowed I.A.No.5/2018 in exercise of power under Article 227 of the Constitution of India in the ends of justice and to prevent the abuse of the process of Court. The same yardstick has to be applied to the plaintiffs whose I.A.No.6/2018 came to be allowed by the Trial Court exercising inherent powers under 45 Section 151 of Code of Civil Procedure in order to maintain equality between plaintiffs and defendant, since both the parties have filed application for recalling the Orders under Section 151 of Code of Civil Procedure and in the interest of justice of both the parties. Taking into consideration the facts and circumstances of the present case, the Trial Court was not justified in dismissing I.A.No.5/2018 filed by the defendant and justified in allowing I.A.No.6/2018 filed by the plaintiffs.
41. In view of the aforesaid reasons, writ petitions are allowed in part. The impugned order passed by the Trial Court dated 17.01.2019 on I.A.No.5/2018 is hereby quashed. I.A.5/18 filed by the defendant is allowed. The order dated 17.01.2019 on I.A.No.6/2018 allowing the application filed by the plaintiff to recall the order dated 10.08.2018 insofar as it pertains to hearing additional issue No.1 regarding maintainability as preliminary issue and to consider the said 46 issue at the time of disposal of the main suits along with other issues, is confirmed.
42. Since the suits are filed in the year 2012 and plaintiff in all the suits examined as P.W.1 and already marked Exs.P.1 to P.80, and we are in 2019 and already seven years have elapsed, the Trial Court is directed to expedite the suit itself, subject to cooperation by both the parties.
Ordered accordingly.
Sd/-
JUDGE Nsu/- kcm