1 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT S.B. Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. Date : 25.3.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Manish Shishodia ) Mr.Jagat Tatia ) for the petitioners. Mr.Dinesh Mehta, for the respondent. - - - - - BY THE COURT REPORTABLE Heard learned counsel for the parties. The present writ petition raises an important question of law and that is whether after amendment of C.P.C. by Code of Civil Procedure (Amendment) Act, 2002, the High Court can pass appropriate order when a case is made out of abuse 2 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. of process of court, obviously in civil court and can dismiss the frivolous litigation by exercising power under Section 151 CPC. Brief facts of the case are that a suit being suit no.17/2004 (106/1989, 23/1994) for eviction of one Bhagwati Prasad was filed by the trustees of one trust who are ten in number alleging that the suit property was gifted to the trust and the defendant is running a school in the suit premises and that act was unauthorised act of the defendant. That suit was contested by the said defendant Bhagwati Prasad and ultimately, after about 10 years in the trial court, the suit for eviction was decreed by the trial court i.e. Court of Additional District Judge (FT) Churu on 11.12.2004. S.B. Civil First Appeal No.133/2005 was preferred by Bhagwati Prasad to challenge the decree dated 11.12.2004 which was dismissed by this Court vide judgment dated 14.7.2005. It will be worthwhile to mention that the appeal was argued at length and thereafter, counsel for the appellant sought time to take instructions from 3 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. the appellant and the matter was adjourned and then it is stated before this Court that the appellant is inclined to withdraw the appeal on condition that the appellant is granted some reasonable time to vacate the suit premises. On this, this Court dismissed the appeal preferred by Bhagwati Prasad and granted time to vacate the premises by 15.5.2007 on usual conditions. Then, present respondent Bajrang Lal Swami, another member of management of the same school, filed civil original suit no.53/2005 for declaration and permanent injunction against the defendants/decree holders in civil original suit no.17/2004 for the same property. The said suit was dismissed by the trial court under Order 7 Rule 11 CPC vide judgment and decree dated 13.1.2006. To challenge the judgment and decree of the trial court dated 13.1.2006, respondent Bajrang Lal preferred regular first appeal before this court being S.B. Civil First Appeal No.68/2006. Said appeal was heard and by detail judgment, was dismissed by this Court on 3.7.2006. Against the judgment of this Court dated 4 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. 3.7.2006, respondent preferred Special Leave to Appeal before the Hon'ble Apex Court which is registered as Special Leave to Appeal (Civil) No.13107/2006. In the above leave to appeal, the prayer for grant of interim relief was refused by the Hon'ble Apex Court vide order dated 18.8.2006 (Annex.4). It is submitted by the petitioners that same person i.e. respondent Bajrang Lal submitted one application under Section 340 Cr.P.C. and also submitted a criminal complaint to prosecute the trustees of the trust who were the plaintiffs in the civil original suit no.17/2004 and who were the defendants in the respondent's civil original suit, which was rejected by the trial court under Order 7 Rule 11 CPC and which order was upheld by this Hon'ble Court and injunction was refused by the Hon'ble Apex Court. Facing this abuse of process in criminal court, the petitioners approached this Court under Sections 397 r/w 401 Cr.P.C. wherein this Court on 12.12.2007 stayed the further proceedings in pursuance of the order dated 5.12.2007 arising out of criminal case no.563/2007. After the stay of criminal proceedings by 5 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. order dated 12.12.2007, same Bajrang Lal submitted an application under Section 151 CPC before the trial court on 2.1.2008. In this application filed under Section 151 CPC, it has been prayed that this application may be allowed and the decree dated 11.12.2004 passed in civil original suit no.17/2004 (106/89, 23/94) may be recalled and the plaintiff's suit referred above may be dismissed. This application was registered by the trial court by order dated 3.1.2008. The petitioners' contention is that the process initiated by the respondent by moving application under Section 151 CPC is clearly a grave case of abuse of process of the Court. It is submitted that the abuse is so grave that this Court may exercise its supervisory jurisdiction under Article 227 of the Constitution of India to quash the entire proceedings. It is submitted that a decree which was passed as back as on 11.12.2004 in a suit instituted in 1989 and the decree of the trial court has been upheld by this High Court, no petition/application for recalling the decree can be entertained by the trial court. The decree passed by the trial court dated 11.12.2004 merged in the appellate decree passed by this Court dated 6 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. 14.7.2005. It is also submitted that in the application, the prayer of the respondent is for recalling of the decree dated 11.12.2004 and this relief cannot be granted by the civil court in any manner because of the plain and simple reason that if the decree dated 11.12.2004 is recalled, then there will be two judgments in one suit, namely, one dismissing the suit by the trial court and another judgment which will be of the High Court upholding the decree. It is also submitted that the application admittedly has been filed by the respondent in the trial court on 2.1.2008 and that too for recalling of the order under Section 151 CPC which was passed more than three years ago on 11.12.2004. Section 3 of the Limitation Act cast a duty upon the Court to reject the suit or petition filed beyond the period of limitation. It will further be worthwhile to mention here that the respondent was not party in the civil original suit no.17/2004 yet he is seeking the recalling of the decree which he cannot seek. Learned counsel for the petitioners also submitted that Article 227 of the Constitution of India empowers the High Court to exercise supervisory jurisdiction and Section 151 of the Civil 7 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. Procedure Code has been enacted long ago which is not a power given to the Court by Section 151 CPC for passing any order which may be necessary for ends of justice or to prevent abuse of process of the Court but recognises inherent power of the Court by specifically saying that this power is limitless. Learned counsel for the respondent has raised preliminary objection about the maintainability of the writ petition and submitted that the High Court can entertain and issue writ under Articles 226 and 227 of the Constitution of India. Article 226 of the Constitution of India empowers the High Court to issue writ against any authority and not upon any Court as the Court is not the authority. It is also submitted that Article 227 of the Constitution of India is a specific provision empowering High Court to have superintendence over all the Courts, Tribunals falling within the jurisdiction of the High Court. It is submitted that the Code of Civil Procedure is self contained code and prescribes the procedure of the civil Court by which the Court shall proceed to decide any suit, petition or application. The petitioners 8 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. shall have full opportunity to appear before the trial court and submit objections before the trial court upon which the trial court will pass appropriate order. The petitioners straightaway approached this Court without approaching the trial court, therefore, merely on this ground alone, the petitioners' petition may be dismissed. Learned counsel for the respondent further vehemently submitted that Section 151 CPC is not at par with Section 482 CrPC as under Section 482 CrPC, one can approach the High Court directly for redressal of his grievance but Section 151 CPC is not the said power and Section 151 CPC recognizes only civil court's inherent power. It is also submitted that there are facts which are required to be gone into before passing the order by the trial court, therefore, the petitioners can approach the trial court with full facts. Learned counsel for the respondent also submitted that there is no illegality in the order registering the respondent's application under Section 151 CPC because of the reason that the trial court could not have nor should have any reason to reject the application filed by the respondent. It is submitted that it was a grave case of collusion 9 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. between the plaintiff/decree holder and defendant Bhagwati Prasad and the school which was run by applicant Bajrang Lal and who is claiming title by adverse possession, will suffer grave irreparable injury in case, this extraordinary jurisdiction is exercised by this Court denying opportunity to the respondent to prove the facts alleged by him. I considered the submissions of learned counsel for the parties and perused the documents annexed with the writ petition. Section 151 CPC recognises civil court's power to pass order to do justice or to prevent abuse of process of the court. Learned counsel for the respondent pointed out that the revisional jurisdiction of the High Court has been curtailed by amended Section 151 CPC with effect from 1.7.2002 and learned counsel for the respondent may be right to some extent but Article 227 of the Constitution of India is not controlled by the Civil Procedure Code which is clear from Section 141 CPC. Article 227 of the Constitution of India is a constitutional provision and gives 10 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. jurisdiction to the High Court of superintendence over all the Courts situated within the territories over which the High Court has jurisdiction. The power of superintendence cannot be a power without jurisdiction to pass appropriate order when facts require for interference by the supervisory court. In fact, the powers of superintendence of the High Court in pending civil matters are not exercised by the High Court directly normally and unless a case of exceptional nature and a case of rarest of rare nature is not made out and, therefore, it is difficult to find the judgment of interference by High Court under Article 227 of the Constitution of India directly in pending civil proceedings or suits. The obvious reason is that a complete procedure is provided in the Code of Civil Procedure which takes care of almost every eventuality empowering the civil court to pass appropriate order. The areas which may not have been covered specifically for taking care of frivolous litigation have been taken care by judicial precedents which made it clear that the civil court has full power to do the justice for which they have been created and to prevent the 11 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. abuse of process of court, the Court can pass the appropriate order even of dismissal of suit under Section 151 CPC as held by the Hon'ble Supreme Court delivered in the case of Shipping Corporation of India Ltd. vs. Machado Brothers and others reported in 2004 AIR SCW 1842. Whether it is a fit case of rejection on the ground of availability of alternate remedy depends upon the facts of each case and is also upon the discretion of the High Court and it is not because of any statutory provision of law taking away the jurisdiction of the High Court in exercising the power. Here in this case, I found that the respondent miserably failed to show that how his application could have been entertained by the trial court ? The respondent could not utter a single word how his application is maintainable. A decree passed by the trial court can be set aside by the same court by reviewing the judgment and decree by exercising the powers given by Order 47 CPC. The application is neither under Order 47 CPC nor it can be treated to be an application under Order 47 12 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. CPC because of the plain and simple reason that the respondent is seeking recalling of the judgment and decree on the ground of fraud and collusion. The allegation of fraud and collusion can be gone into in a suit and not by way of application. There is a specific provision made in the Indian Limitation Act providing limitation for filing suit for cancellation or to set aside an instrument or decree under Article 59 of the Indian Limitation Act, 1952. Order 21 Rule 97 CPC takes care of all the objections which may be raised by the judgment debtor or a stranger to the decree. Order 21 Rule 97 CPC very specifically provides that even a stranger can move an application in the executing court for determining, as per Rule 101, the question relating to right, title or interest in the property which may arise between the parties to the proceedings on application under Order 21 Rule 97 or Rule 99 CPC. The person who has been dispossessed in execution of the decree, even his right, title and interest can be determined by the executing court with the help of Rule 99 and the executing court can pass appropriate order even of restoration of possession of a person who has been 13 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. dispossessed wrongfully. Here in this case, when the facts are not in dispute and the facts show that judicial pronouncements by the courts either attained the finality or the applicant could not get the relief in his own suit and appeal and further appeal, then he submitted this application under Section 151 CPC before the court which cannot entertain the application for the relief prayed and there is no plea even for namesake how the application of the respondent is maintainable, then this Court is not inclined to reject the writ petition of the petitioners to perpetuate the harm which may be caused by the continuation of the proceedings in the court below initiated on the application filed by the respondent. At this juncture, this fact cannot be ignored that the judgment debtor in the civil original suit no.17/2004 is not a stranger but alleged to be closely associated with the present respondent Bajrang Lal and it is alleged that both Bhagwati Prasad and Bajrang Lal were members of the management committee governing the school in question. 14 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. The further reason for entertaining this petition is that the respondent's suit itself has been dismissed by the trial court under Order 7 Rule 11 CPC and that dismissal has been upheld by this Court vide detail judgment dated 3.7.2006 and the Hon'ble Apex Court rejected the respondent's prayer for grant of interim relief. The respondent, therefore, is virtually trying to undo what has been done by the orders of the Court in his own suit by the trial court by judgment and decree dated 13.1.2006 and by this Court by judgment dated 3.7.2006 and furthermore, when injunction application has been dismissed by the Hon'ble Apex Court. How the respondent, who is pursuing his suit, can during pendency of that suit, seek a relief under Section 151 CPC which will necessarily involve determination of his right, title or interest in the property in question. It is case of rarest of rate nature because of the reason that the plaintiffs who were successful in the litigation initiated in the year 1994 after consuming ten years in the trial court and thereafter successful in the High Court wherein this Court dismissed the appeal of the judgment debtor and the respondent lost in his 15 SB Civil Writ Petition No.1052/2008 Satya Narain & Ors. vs. District Judge, Churu & Ors. suit and regular appeal and the Hon'ble Apex Court specifically refused the interim relief, the High Court may under Article 227 of the Constitution of India exercise jurisdiction in pending proceedings in civil court in rarest of rate case and it is one of such case where the continuation of the proceedings in the trial court will amount to abuse of process of the court. In view of the above reasons, this writ petition is allowed, the order of the trial court dated 3.1.2008 registering the application of the respondent under Section 151 is quashed and the respondent's application under Section 151 CPC is dismissed. (PRAKASH TATIA), J. S.Phophaliya