Pankoo Chemicals & Fertilizers And Ors. vs Himachal Pradesh Financial Corporation

This appeal is directed against the order passed by the Tribunal below dated 20th July, 2012 whereby the application filed by the appellant under Section 19(25) of the RDDBFI Act read with Order 9 Rule 13, CPC for setting aside the judgment dated 7th May, 2004 has been dismissed.

The OA filed by the Himachal Pradesh Financial Corporation was allowed by the Tribunal below on 7th May, 2004. This claim had been made by respondent in a civil suit filed before Himachal High Court which was transferred to the Tribunal and dealt with as OA. This OA came to be thus adjudicated by the Tribunal. Instead of filing appeal against the order passed in the OA by the Tribunal below, the appellant herein chose to file an application under Section 19(25) of the RDDBFI Act read with Order 9 Rule 13, CPC on 19th March, 2009. The prayer in this application was that one of the issues framed by the Himachal Pradesh High Court reading "Whether the plaintiff corporation is estopped from claiming the suit amount on account of its acts, deed and conduct, etc. as alleged? OPD" was not adjudicated by the Tribunal. In this background, the application was filed for setting aside of the judgment dated 7th May, 2004 passed in the OA.

The Tribunal below has considered the prayer and ultimately dismissed this MA against which the appellants have filed the present appeal.

At the outset, the Counsel for the appellants was required to satisfy this Tribunal as to how this application under Section 19(25) of the RDDBFI Act read with Order9 Rule 13, CPC would be maintainable to challenge the order passed in OA on merits when the appellant was represented. The Counsel has not been able to advance any submission in this regard.

Section 19(25) of RDDBFI Act is a provision empowering the Tribunal to make such order and give such directions as may be necessary to give effect to its orders or to prevent the abuse of its process or to secure the ends of justice. By no stretch of imagination this provision can be used as substitute for appeal. If permitted to be done, it in itself may amount to abuse of the process of the Tribunal. Application to set aside judgment passed by the Tribunal cannot be maintained under the provision.

This provision is akin to Section 151, CPC which has saved the inherent powers of Court. This section provides that nothing in the code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. While talking about the scope of Section 151, CPC, the Court has held as under:

"The settled position is that after the passing of the judgment, decree or order, the Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order."

Inherent powers are to be exercised where specific provision does not meet the necessity of the case. Order 9 Rule 13 regulate the setting aside decree ex parte against the defendant. This provision is not applicable at all as the judgment passed by the Tribunal was not ex parte. Thus, it is clear that the application was not maintainable at all and the Tribunal below was misconceived in entertaining this application.

The only remedy for the appellant was to file an appeal against the order passed in the OA which till date has not been done. I am clear in my mind that the application under Section 19(25) of the RDDBFI Act read with Order 9 Rule 13, CPC for setting aside of the judgment passed by the Tribunal below was not maintainable.

At this stage, the Counsel for the appellants states that he may be permitted to withdraw this appeal. Dismissed as withdrawn.