Case: Jet Ply Wood Private Ltd.  Vs. Madhukar Nowlakha

to allow the Respondent No. 1s application for restoration of the suit. Mr. Rohtagi submitted that the order of the Learned Single Judge of the Calcutta High Court impugned in these appeals was erroneous and was liable to be set aside. Mr. Abhishek Manu Singhvi, learned senior counsel, who appeared for the Respondent No. 1 in the first two appeals on the other hand urged that pursuant to the agreement arrived at between Shri Nowlakha and the owners of the property, Shri Nowlakha had taken steps to get the property vacated and made ready for construction. However, on the assurance given by the owners of the property, the respondent No. 1 had agreed to withdraw his suit which fact will be reflected from the application filed by him before the Learned Civil Judge (Senior Division) 9th Court at Alipore for withdrawal of the suit. Mr. Singhvi urged that the owners of the property had resorted to subterfuge to wriggle out of the agreement and had misled the Respondent No.1 into withdrawing the suit and it is on account of such misrepresentation that the Respondent No. 1 was entitled in law to have his suit restored. Mr. Singhvi submitted that it would not be correct to contend that the Learned Trial Judge did not have the jurisdiction to withdraw the order passed by him permitting the respondent No.1 to withdraw his suit. 6. What was relevant was whether in the circumstances such a power should have been exercised or not. Since the learned Trial Judge had chosen not to exercise such power, the High Court stepped in, in exercise of its powers under Article 227 of the Constitution to restore the suit filed by the Respondent No.1. Mr. Singhvi urged that while dismissing the application filed by Shri Biswarup Banerjee and others recalling the order dated 4th February, 2005, the learned Single Judge of the Calcutta High Court in his order dated 11th March, 2005, had referred to and relied upon a Division Bench judgment of the Calcutta High Court in the case of Rameswar Sarkar Vs. State of West Bengal & Ors. reported in AIR 1986 Calcutta 19, in support of his order that when through mistake a plaintiff withdraws his suit, the court is not powerless to set aside such order of dismissal in exercise of inherent powers even if no leave to file a fresh suit had been prayed for. Mr. Singhvi urged that the order passed by the learned Single Judge of the Calcutta High Court and impugned in these appeals did not call for any interference by this Court. Mr. Soli J. Sorabjee, learned senior counsel for the Respondent No.1 in the second set of appeals while adopting Mr. Singhvis submission, added that since the Learned Single Judge of the Calcutta High Court had acted within his jurisdiction to do justice between the parties, the same did not warrant any interference by this Court. Mr. Sorabjee submitted that this was not a case of the Court having acted without jurisdiction but having acted in the exercise of its inherent powers to do justice between the parties. As indicated hereinbefore, the only point which falls for our consideration in these appeals is whether the Trial Court was entitled in law to recall the order by which it had allowed the plaintiff to withdraw his suit. From the order of the Learned Civil Judge (Senior Division) 9th Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances set out in the order of 24th September, 2004, the learned trial court felt that no case had been made out to recall the order which had been made at the instance of the plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the plaintiff. The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. 7. 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 substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , as follows: "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." 8.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]From the order of the Learned Civil Judge (Senior Division) 9th Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances set out in the order of 24th September, 2004, the learned trial court felt that no case had been made out to recall the order which had been made at the instance of the plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the plaintiff. The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between theis 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 substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , asis 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."