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Judgment
R.V. Ghuge, J.—Heard learned Advocates for the respective parties.
A peculiar grievance has been raised for the consideration of this Court by this Writ Petition, touching the scope and ambit of Sec. 151 of the Code of Civil Procedure, 1908 ("CPC" in short).
Respondent No.1, along with other respondents, had preferred RCS No.48 of 1999 before the trial Court, claiming that a resolution dated 19.2.1999, by which their membership was cancelled by petitioner No.1, be quashed and set aside. Original plaintiffs 1,2,3 and 9, who are respondents 3 to 6 respectively, are no longer alive. Respondent No.2 was the original defendant No.4, who is not a contesting party. Out of the plaintiffs, only one plaintiff, who is respondent No.1 in this petition, is the contesting respondent.
The trial progressed in RCS No.48 of 1999 with the petitioners filing their written statement on 3.3.1999. Issues were cast on 28.2.2011. The plaintiffs moved an application Exhibit 49 dated 31.3.1999 seeking a direction to the petitioners to produce the resolution dated 19.2.1999 by which the membership of the plaintiffs was cancelled. By order dated 19.1.2011, the plaintiffs were permitted to apply to the petitioners herein for seeking certified copy of the resolution and were also permitted to produce the resolution before the trial Court. Application Exhibit 49 was, therefore, rejected.
Before the rejection of the Exhibit 49 application, the plaintiffs had moved another application Exhibit 50 dated 13.3.1999, filed on 31.3.1999. By an order dated 19.1.2011, Exhibit 50 was also rejected along with Exhibit 49 for the reason that the order was already passed on Exhibit 49.
The petitioners, therefore, contend that, immediately, pursuant to the order below Exhibit 49, the contesting plaintiffs should have applied for obtaining certified copies to the petitioners as per the liberty granted by the Court. They slept over the order and thereafter participated in the entire trial of the suit. Finally, on 30.9.2013, the rival parties advanced oral submissions finally and the trial Court reserved the matter for judgment to be delivered on 14.10.2013.
The roznama placed on record indicates that the judgment was not pronounced on 14.10.2013, 28.10.2013 and 13.11.2013. On 27.11.2013, instead of delivering the judgment, the trial Court suo motu and without affording an opportunity of addressing the Court to the litigating parties, proceeded to pass an order holding that the orders at Exhibits 49 and 50 have been passed irregularly. By invoking powers u/s 151 of the Code of Civil Procedure, 1908 ("CPC"), the stage of the matter is reversed to the position of directing the petitioner to produce the resolution dated 19.2.1999 and both the parties were directed to lead further evidence in the matter for proving the said document.
The petitioners, being aggrieved by the said order, contend that this is a strange and unusual approach adopted by the trial Court. Scope of the Court''s power u/s 151 of the CPC has been expanded to accord a meaning that there are no fetters on the trial court and it can set aside the earlier orders passed by the same Court. Section 151 gives uncontrolled and unfettered powers / jurisdiction to the trial Court, seems to be the belief of the learned Judge.
The petitioners have placed reliance upon Order XX Rule 1 of the CPC and have also relied upon the reported judgments of this Court as well as the Apex Court to buttress their contention that the trial Court was left with the only option of delivering the judgment. It was precluded from reopening the entire case as is evident from the impugned order.
Shri Syed, learned Advocate appearing for respondent No.1 submits that the intent and object of the law is to do justice to all the litigants. The trial Court realised that the resolution was not on record and has, therefore, invoked its inherent powers u/s 151 of the CPC to pass the impugned order. While supporting the impugned order, the respondent has relied upon the reported judgments of the Apex Court in the cases of Rajendra Prasad Gupta Vs. Prakash Chandra Mishra and Others, , K.K. Velusamy Vs. N. Palanisamy, , Vinod Kumar Singh Vs. Banaras Hindu University and Others, and the judgments of this Court in the cases of Kanhaiyalal Kewalramani Vs. Anil Gurubakshani, and Wasudeo Sonone and Another Vs. Jagannath Ramlalji Jugele,
It is undisputed that by orders dated 19.1.2011, passed below Exhibits 49 and 50, the respondent was given the liberty to apply to the petitioners for a certified copy of the resolution and produce the same on record. His applications for production of documents at Exhibits 49 and 50 have been rejected. While doing so, liberty was granted, which was not availed of by the respondents.
It clearly appear that the respondents did not take any steps and did not endeavour to bring on record the said resolution in their own interest. Finally, the respondent has tacitly given up the said right to obtain the certified copy and produce the document, which is evident by the fact that the final oral submissions were also advanced. The mind of the court was addressed for delivering a judgment in the matter. After the oral submissions were concluded, the trial Court had closed the matter for judgment.
Section 151 of the CPC reads as under:-
"151. Saving of inherent powers of Court Nothing in this 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."
I do not find from the said provision that the Court was empowered to virtually set aside its own orders, both dated 19.11.2011, by terming them to have been irregularly passed and amounting to an irregularity. In my view, the scope of Section 151 of the CPC cannot be expanded to this extent that the same Court would review its own orders and conclude that the orders have been passed irregularly. Instead of delivering a judgment, it issued directions to a party to produce a document, with a further direction to commence recording of additional oral evidence.
The respondents have not been able to point out a single judicial pronouncement, which would interpret the scope of Section 151 of the CPC to mean that the Court can set aside its own orders at the stage of delivering the judgment on the plea that the orders are either unsustainable or irregular or have been irregularly passed.
In the case of Rajendra Prasad (supra), the application praying for withdrawal of the "withdrawal application" was being considered. In these facts, the apex Court interpreting the scope of Section 151 of the CPC ruled that an application praying for withdrawal of a withdrawal application can be permitted u/s 151 of the CPC to do so.
In the case of K.K.Velusamy (supra), the issue was for recalling a witness for further examination. Order XVIII Rule 17 read with Section 151 of the CPC was invoked and it was in those circumstances that the apex Court concluded that under Order XVIII Rule 17 of the CPC a witness could be recalled only at the behest of the Court itself and for putting questions to the said witness by the Court. Relevant paragraph 9 of the K.K.Velusamy judgment (supra) reads as follows :-
"There is a no specific provision in the Code enabling the parties to re-open the evidence for the purpose of further examination- in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power u/s 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination. This inherent power of the Court is not affected by the express power conferred upon the Court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications."
In the case of Vinod Kumar (supra), it was held that it is in very exceptional cases that Section 151 of the CPC could be invoked in order to alter or modify the judgment, which was delivered but not signed and that the said power could be exercised judiciously, sparingly and only for adequate reasons. It is, however, further observed that once the stage is reached and the Court has pronounced the judgment, the same should not be reopened unless there is some exceptional circumstance or a review is asked for and such a review is granted.
The Apex Court (3 Judges Bench) has, in the case of Arjun Singh Vs. Mohindra Kumar and Others, held in paragraph 17 and 19 as follows :-
"17. So far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an application under O. IX, r. 7 would operate as res judicata when the same question of fact is raised in a subsequent application to set aside an ex parte decree under O. IX, r. 13. This is because it is not disputed that in order to operate as res judicata, the court dealing with the first matter must have had jurisdiction and competency to entertain and decide the issue. Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O. IX, R.7. The opening words of that rule are, as already seen, ''Where the Court has adjourned the hearing of the suit ex parte''. Now, what do these words mean? Obviously they assume that there is to be "a hearing" on the date to which the suit stands adjourned. If the entirety of the "hearing" of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment of "the hearing" of the suit, for there is nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil Judge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant could participate was to hear the judgment pronounced and that on the terms of rules 6 and 7 he would permit him to do that. If, therefore, the hearing was completed and the suit was not "adjourned for hearing", O. IX, r.7 could have no application and the matter would stand at the stage of O. IX, r. 6 to be followed up by the passing of an ex parte decree making r. 13 the only provision in order IX applicable. If this were the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application dated May 31, 1958 purporting to be under O. IX, r. 7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under O. IX, r. 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order.
On this submission, which we might mention has been urged for the first time in this court, the first question that arises is whether the Court has the inherent jurisdiction which learned counsel contends that it has. For the purpose of the discussion of the question in the context of the relevant provisions of the Code, it is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be predicated that a Court has the inherent jurisdiction which is saved by s. 151 of the Civil Procedure Code. It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a Particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates, We shall confine our attention to the topic on hand, namely applications by defendants to set aside ex parte orders passed against them and reopen the proceedings which had been conducted in their absence. Order IX, r. 1 requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record is apprised of the fact that the summons has not been duly served on the defendant in order to acquaint him with the proceedings before the Court. Rule 2 contains a proviso applicable to cases where notwithstanding the absence of service of summons, the defendant appears. Rule 3 deals with a case where the plaintiff along with the defendant is absent when the suit is called on and empowers the Court to dismiss the suit. Rule 5 deals with a case where the defendant is not served properly and there is default on the part of the plaintiff in having this done. Having thus exhausted the cases where the defendant is not properly served, r. 6(1)(a) enables the Court to proceed ex parte where the defendant is absent even after due service. Rule 6 contemplates two cases: (1) The day on which the defendant fails to appear is one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and (2) where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case O. IX, r. 13 would come in. The defendant can, besides filing an appeal or an application for review, have recourse to an application under O. IX, r. 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of O. IX, r. 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non- appearance on the previous day or days he might have the earlier proceedings recalled" set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing ''of a suit has been provided for and O. IX, r. 7 and O. IX, r. 13 between them exhaust the whole gamut of situations that might arise during the course of the trial. If, thus, provision has been made for every contingency, it stands to reason that there is no scope for, the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak however, strenuously contended that a case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not been provided for. We consider that the suggestion ''that there is such a stage is, on the scheme of the Code, wholly unrealistic. In the present context when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) Where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that O. XX, r. 1 permits judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the stage contemplated by O. IX, r. 7 is passed the next stage is only the passing of a decree which on the terms of O. IX, r. 6 the Court is competent to pass. And then follows the remedy of the party to have that decree set aside by application under O.IX. r. 13. There is thus no hiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of O. IX, r. 7. We are, therefore, of the opinion that the Civil Judge was not competent to entertain the application dated May 31, 1958 purporting to be under O. IX, r. 7. and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under O. IX, r. 13 filed by the appellant."
(Emphasis supplied).
This Court has considered a similar situation in the case of Wasudeorao (supra). An application for cross-examination under Order XVIII Rule 2 of the CPC was filed. This Court concluded that once the case is covered by Order XX Rule 1 of the CPC, application for further cross-examination was not maintainable and cannot be entertained. Once the case was closed for judgment, the Court cannot entertain an application for cross-examination.
This Court in the case of Dinkar S/o Pandhari Gole Vs/ Shri Vithal S/o Namdeo Bobde and others, 2010(1) All MR 766, placing reliance upon the judgment of the Apex Court reported at AIR 1964 SC 998, held that once the stage was fixed for pronouncement of the judgment, the trial Court is left with nothing more to do but to deliver a judgment. The trial Court cannot cause a hearing of the suit by allowing the application under Order VIII Rule 1 of the CPC for vacating "No Written Statement" order and for filing Written Statement.
In the light of the above, in my view, the trial Court has adopted an unusual and unforeseen approach. The scope and ambit of Section 151 of the CPC has been totally mis-understood and misconstrued by the trial Court. Such an approach is not permitted by law and is against cannons of justice. The trial Court, after reserving the case for judgment on 30.9.2011, was expected to pronounce it within a period of 60 days as is provided in law. The impugned order is, therefore, wholly unsustainable.
Writ Petition is, therefore, allowed. The impugned order dated 27.11.2013 is quashed and set aside. The trial Court is expected to deliver its judgment on the basis of the pleadings of the parties, the issues cast, oral and documentary evidence adduced before it and in the light of the oral submissions put forth by the parties.