1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2106 OF 2010 IN FIRST APPEAL NO. 1714 OF 2009 Venubai w/o Yeshwant Govind Kini .... Applicants alias Bhandari & Ors. Vs. The Municipal Corporation of .... Respondent Greater Mumbai Mr. G.S. Godbole a/w Mr. Paresh Madkaikar i/by Mr. Nitin Mulye for applicants. Mr. Vinod Mahadik, Advocate for respondent. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 2nd July, 2010 P.C. : 1. This civil application is filed for recall of the order dated 18th December 2009 passed in the above first appeal. By the said order, the appeal filed by the appellant was allowed to be withdrawn, as the plaint in the suit from which the appeal arose did not disclose cause of action. Mr. Godbole, the learned counsel for the applicant submits that the applicant desires this order to be recalled only to enable him to withdraw the suit and seek liberty to file a fresh suit for the same reliefs. Mr. Godbole points out that otherwise the applicant will not be able to file a fresh suit on the same cause of 2 action for the same reliefs, because the trial Court has despite the plaint not disclosing any cause of action while dismissing the suit made observations on the merits of the appellant s claim in the suit. ’ There can be no dispute that withdrawal of the appeal and the suit can cause no prejudice whatsoever to the respondent Municipal Corporation. 2. Mr. Godbole submits relying upon the decision of the Hon ble ’ Supreme Court in the case of Jet Ply Wood (P) Ltd. and another vs. Madhukar Nowlakha and others, reported in (2006) 3 Supreme Court Cases, page 699 and the decision of Calcutta High Court in the case of Rameshwar Sarkar vs. State of West Bengal and others, reported in AIR 1986, CACUTTA, page 19 that since the Code of Civil Procedure does not provide for getting an order passed on withdrawal application set aside, the court can resort to its inherent powers under Section 151 Code of Civil Procedure. He draws attention of this court to the following observations of the Apex Court in the judgment.: 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 3 substantial justice between the parties. This Court had occasion to observe in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal as follows : (SCR p.459) 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.” 3. Considering the facts and circumstances of the case, in my opinion, this is just case for exercise of inherent powers of the Court. Hence, the application is allowed. The order dated 18th December 2009 is hereby recalled. 4. On the application of Mr. Godbole, the applicant is allowed to withdraw L.C. Suit No.2230 of 2006 filed in the Bombay City Civil Court at Bombay with liberty to the applicant to file a fresh suit on the same cause of action. In view of the withdrawal of the suit, the appeal does not survive, the same is accordingly disposed off. (Smt. R.P. SondurBaldota, J)