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

2. One Madhukar Nowlakha, the respondent No. I in these appeals, entered into an agreement for sale in respect of premises No. 4A, Lansdowne Place, P.S. Lake, Kolkata-700029, together with the building and structures thereon, with one Shri Biswarup Banerjee and five others on 20th September, 1988. Inasmuch as, the said agreement was allegedly not acted upon for a long time, the same was purportedly cancelled by the owners on 15th June, 2002.3. On 24th September, 2003, Shri Madhukar Nowlakha filed Title Suit No. 32 of 2003 in the Court of Civil Judge, (Senior Division) 9th Court at Alipore, for specific performance of the agreement purported to have been cancelled and for temporary injunction to restrain the petitioners from alienating the suit premises. Thereafter, on 30th October, 2003, the said Respondent No. I applied to the Court for leave to withdraw the suit on the ground that since there were talks of settlement between the parties, he no longer wished to proceed with the suit. No leave was prayed for to file a fresh suit on the same cause of action. On 11th July, 2004, the learned Judge allowed the respondent No. I to withdraw the suit, but without liberty to file a fresh suit on the same cause of action. On 23rd August, 2004, after termination of the agreement and after withdrawal of the suit filed by the Respondent No. I, Shri Biswarup Banerjee and the other co-owners sold the premises to M/S. Jet Ply Wood Company Limited, the petitioner in SLP (C) No. 10024/2005. Within a month thereafter, on 24th September, 2004, Shri Madhukar Nowlakha applied to the learned Civil Judge (Senior Division) 9th Court at Alipore, for recalling of the order by which the suit had been permitted to be withdrawn on the ground that he had been misled into making such application on account of the misrepresentation of Shri Biswarup Banerjee and the other co-owners that they would sell the property to him provided he withdrew the suit. The learned Civil Judge (Senior Division) 9th Court at Alipore, rejected the said application filed by Shri Madhukar Nowlakha. After rejection of his said application for recalling the order allowing withdrawal of the suit, Shri Madhukar Nowlakha filed a second suit, being Title Suit No. 87 of 2004, which is said to be pending. His prayer for interim injunction in the said suit was rejected.4. Thereafter, on 23rd December, 2004, Shri Madhukar Nowlakha filed an application before the High Court at Calcutta under Article 227 of the Constitution, being C.O. No.3982 of 2004, challenging the Trial Courts order dated 24th September, 2004, refusing to recall its earlier order of 11th February, 2004. While admitting the said application, the High Court directed service of notice on the opposite parties and directed status quo to be maintained for a period of eight weeks. On 4th February, 2005, the learned Single Judge of the Calcutta High Court heard and allowed the revisional application, being C.O. 3982 of 2004, and restored Title Suit No. 32 of 2002 for trial before the Civil Judge, (Senior Division) 9th Court at Alipore. Since according to Shri Banerjee and the other co- owners of the premises, their learned advocate was unable to attend the hearing on 4th February, 2005, on account of personal reasons, they filed an application, being CAN No. 1999 of 2005, before the said learned Judge for recall of his order dated 4th February, 2005. The same was heard and dismissed on contest on 14th March, 2005 with the learned Single Judge reaffirming his order restoring the suit on 4th February, 2005. Both these two Special Leave Petitions have been filed challenging the first order of the learned Single Judge dated 4th February, 2005 restoring the suit of respondent No. I. In addition, Shri Banerjee and the other co-owners of the property have also questioned the legality of the second order passed by the learned Single Judge on 14th March, 2005 rejecting their application for recalling the order dated 4th February, 2005. Since the Special Leave Petitions have been preferred against the common order dated 4th February, 2005 of the Learned Single Judge of the Calcutta High Court, we have taken them up together for hearing and they are being disposed of by this common judgment. It will be evident from the facts mentioned hereinabove that the only question to be decided in these appeals is whether the learned Single Judge of the Calcutta High Court acted within his jurisdiction in restoring the suit of the Respondent No. I when the same had been withdrawn by the said Respondent without any specific prayer for leave to file a fresh suit on the same cause of action. In other words, we are required to consider whether having regard to the provisions of Order XXIII Rule 1 of the Code of Civil Procedure, the Learned Single Judge of the Calcutta High Court could restore the suit when no leave had been granted to file a fresh suit. Although, in his order dated 4th February, 2005, the Learned Single Judge was of the view that there was no reason to allow the withdrawal of the suit without permission or liberty to file another suit, which reasoning we are unable to agree with, since the plaintiff had not made any specific prayer for such leave, the same is not relevant for the purpose of considering as to whether the Court was within its jurisdiction to restore the suit despite leave not having been asked for nor granted but specifically refused.

Reasoning:
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."