Civil Revision No.1646 of 2008(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1646 of 2008(O&M) Date of Decision: February 22, 2011 Krishan Lal .....Petitioner v. Om Pal .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.P.N.Aggarwal, Advocate for the petitioner. Mr.Manoj Bajaj, Advocate and Mr.Saurabh Bajaj, Advocate for the respondent. ...... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India against order dated 3.3.2008 passed by learned Additional District Judge, Karnal, vide which application filed by present petitioner under Section 151 of the Code of Civil Procedure (hereinafter to be referred as the `Code') for setting aside order dated 21.4.2004 vide which appeal filed by petitioner was dismissed as withdrawn, was dismissed. I have heard learned counsel for the parties and have gone through the whole record carefully, including the impugned orders passed by learned Additional District Judge, Karnal. Facts relevant for the decision of present revision petition are that respondent-plaintiff filed a suit for specific performance of agreement to sell allegedly executed in his favour by present petitioner-defendant on 31.3.1998. The suit was contested by present petitioner-defendant. He was represented by Shri G.S.Kadyan, Advocate. The suit was decreed in favour of the respondent-plaintiff. The appeal was filed by the present petitioner alongwith an application for permission to sue in forma pauperis. The application was contested by respondent-plaintiff. Evidence was adduced on the said application. When petitioner-defendant was not allowed by Civil Revision No.1646 of 2008(O&M) -2- learned appellate Court to sue in forma pauperis, counsel for the petitioner made a statement dated 21.4.2004 before learned appellate Court that he did not want to pursue the present appeal any further and hence on the basis of this statement of counsel for the petitioner-defendant, the appeal was ordered to be dismissed as withdrawn by learned Additional District Judge, Karnal by passing the following order on 21.4.2004:- “Present: Sh.G.S.Kadyan, counsel for the appellant. Sh.A.K.Sahni, counsel for the respondent. Appellant does not want to prosecute the present appeal further, in view of his counsel's statement recorded separately. Therefore, the present appeal stands dismissed as withdrawn. File be consigned to the record room.” Therefore, execution petition was filed by respondent-plaintiff. In the execution petition, objections were also filed on behalf of the petitioner through the same counsel, i.e., Shri G.S.Kadyan, which were dismissed and the possession was also handed over to respondent-plaintiff as per the decree in his favour. Thereafter the present application for recalling the said order, vide which appeal was dismissed as withdrawn, has been filed on 31.1.2007, i.e., after about three years of passing of the said order. Plea taken in the application for setting aside the order of dismissing the appeal as withdrawn by present petitioner is that he had never instructed his counsel, Shri Gurdial Singh Kadyan to withdraw the appeal and hence, his counsel has committed fraud upon him in collusion with respondent-plaintiff and hence, the said statement is not binding upon him. Further, plea has been taken that he came to know about the dismissal of the appeal when respondent-plaintiff tried to take forcible possession from him on 28.4.2006. Application has been opposed by respondent-plaintiff which was dismissed by learned appellate Court vide impugned order, by observing as under:- “5. Learned counsel for the applicant has placed reliance on Banwari Lal versus Smt.Chando Devi (through L.R.) and another, AIR 1993 Supreme Court page 1139 wherein it has Civil Revision No.1646 of 2008(O&M) -3- been observed that where a compromise in a suit was not lawful and in these circumstances court is competent to recall the order recorded in compromise and even the compromise is recorded under Order 23 Rule 3 of the CPC. In the case supra the compromise recorded in the court was withdrawn as the same was based on fraud and a fabricated petition for compromise was filed, although no compromise was effected between the parties. Whereas in the present case no such allegation of fraud played upon the party by his counsel has been levelled. Moreover, the present application has been filed after more than two years after satisfaction of the decree. Therefore, in my opinion the application filed by the applicant was not maintainable. 6. On the other hand learned counsel for the respondent has placed reliance on Kashmiri Devi versus Aziz-U-Din 1978, PLJ page 17 wherein Hon'ble High Court has relied upon case Nain Singh vs. Koonwarjee and others AIR 1970 SC page 997 wherein it has been held that inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Moreover, further reliance can be placed on Sri Krishna Rajendra Mills Ltd. Mysore versus Majety Seshagiri Rao and others, AIR 1962 Andhra Pradesh 506 wherein the plaintiff has not availed of the remedy by way of appeal and he could not invoke the inherent powers of the trial Court. It was not open to the trial Court to set aside the order of dismissal of the suit after it had become final. 7. So, in view of my above discussion, the present application filed by the Krishan Lal applicant under Section 151 of the CPC for setting aside the order dated 21.4.2004 Civil Revision No.1646 of 2008(O&M) -4- was not maintainable and same is hereby dismissed without costs. Trial Court record be sent back. File be consigned to the record room.” It has been contended by learned counsel for the petitioner that the application for setting aside the order for dismissing the appeal as withdrawn is maintainable under Section 151 of the Code as there is no other specific provision in the Code for the said purpose and hence it is contended that learned trial Court should have decided the application on merit instead of dismissing the same as not maintainable. He has also placed reliance on a number of judgments on the point reported as Banwari Lal v. Smt.Chando Devi (through L.R.) and another, AIR 1993 Supreme Court 1139, Jagir Singh Sobha Singh and another v. Settlement Commissioner, Pepsu and others, AIR 1959 Punjab 457, Smt.Tara Bai v. V.S.Krishnaswamy Rao, AIR 1985 Karnataka 270 and Jet Ply Wood (P) Ltd. and another v. Madhukar Nowlakha and others, (2006) 3 Supreme Court Cases 699. He has further contended that the order has been passed by learned trial Court on the ground of fraud being committed upon petitioner- defendant by his counsel and hence, the same is not binding upon him. He has also placed reliance upon S.P.Chengalvaraya Naidu v. Jagannath,` 1994 (2) Civil Court Cases 131 (S.C.) and Hamza Haji v. State of Kerala and another, (2006) 7 Supreme Court Cases 416. He has also argued that even vakalatnama in favour of Shri Gurdial Singh Kadyan, counsel, was not signed by present petitioner-defendant. On the other hand, it has been argued by learned counsel for the respondent-plaintiff that it was Shri Gurdial Singh Kadyan, who had been defending the suit on behalf of the present petitioner before the trial Court and it was he, who filed appeal on behalf of petitioner-defendant. It is further contended that he was his counsel in execution petition as well, and he had taken objections on behalf of the petitioner-defendant. It is also stated that Shri Gurdial Singh is also counsel in several other litigation involving the present petitioner-defendant. It is also contended that he remained his counsel even after the alleged controversial statement given by him in the Court for withdrawing the appeal. It is further contended that in fact the appeal was withdrawn as petitioner-defendant did not want to affix Civil Revision No.1646 of 2008(O&M) -5- ad valorem court fee and hence after getting the appeal dismissed as withdrawn, objections were filed in the execution petition, which were dismissed and thereafter the decree was also satisfied and it is only thereafter that the present application was filed, which cannot be said to be a bona fide one. It has also been contended that the entire facts are before this Court and hence even this Court can look into the fact as to whether there is any merit in the application filed by present petitioner-defendant for recalling the order dismissing the appeal as withdrawn by learned appellate Court. There is no dispute in the legal proposition that an application under Section 151 of the Code is maintainable for recalling the order dismissing the appeal as withdrawn and however, it depends upon facts and circumstances of each case as to whether any case for recalling the order is made out or not. The present case is not in which appeal was withdrawn on the basis of any alleged compromise. The present case is only on the ground that appeal was got dismissed as withdrawn by counsel for the petitioner- defendant without his instructions and that the same was not in his knowledge. Hence, this Court is to see as to whether the application is a bona fide one and as to whether the appeal was withdrawn by counsel for the petitioner-defendant without his instructions and without his knowledge. Respondent-plaintiff has placed on record copy of summon which was issued in the execution petition filed by respondent-plaintiff after dismissal of the appeal as withdrawn filed by petitioner-defendant and the summons were received by present petitioner-defendant on 3.6.2004. Thereafter, he appeared before learned Executing Court through the same counsel, namely, Shri Gurdial Singh Kadyan and filed objection petition, Annexure R2. Hence, it cannot be said that the factum regarding dismissal of appeal as withdrawn came to the notice of present petitioner much later. Petitioner also filed an application dated 15.6.2005 before learned Executing Court which was signed by him. Same counsel had been representing the present petitioner in execution proceedings as well as in some other litigation involving the present petitioner. Hence, in view of these facts, it cannot be said that the appeal was withdrawn by Shri Gurdial Singh Kadyan, Advocate, without knowledge and without instructions of Civil Revision No.1646 of 2008(O&M) -6- present petitioner-defendant or that he was having no authority to withdraw the appeal. As already stated above, even after his alleged controversial statement made in the Court on behalf of the petitioner, he had been engaged by the petitioner as his counsel in the execution petition and in some other litigation. The present application has been filed after about three years of the dismissal of the appeal as withdrawn, after decree was satisfied and the possession was also delivered to respondent-decree holder. Hence, the same cannot be said to be a bona fide one. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned appellate Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. The present revision petition is, hereby, dismissed being devoid of merit. 22.2.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.