Calcutta High Court
Sk. Mansur Ali & Anr vs Sri Kulnath Kapoor & Ors on 15 January, 2025
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
G.A. No. 5 of 2024
In
CS No. 220 of 2019
Sk. Mansur Ali & Anr.
Versus
Sri Kulnath Kapoor & Ors.
Mr. Arabinda Chatterjee, Sr. Adv.
Mr. Shyamal Mukhopadhyay
Ms. Priyanka Chatterjee
... For the plaintiffs.
Mr. Suman Dutt, Sr. Adv.
Mr. Rohit Banerjee
Mr. Satrajit Sen
Mr. Subhankar Chakraborty
Mr. Saptarshi Bhattacharjee
Ms. Sayani Gupta
Ms. Neelanjana Roy
Mr. Sakabda Roy
... For the defendants.
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Hearing Concluded On : 23.12.2024
Judgment on : 15.01.2025
Krishna Rao, J.:
1. The defendants have filed the present application under Order IX, Rule
13 of the Code of Civil Procedure, 1908 being G.A. No. 5 of 2024
praying for setting aside ex-parte the Judgment and Decree passed by
this Court dated 24th March, 2023 in C.S. No. 220 of 2019.
2. Mr. Suman Dutt, Learned Senior Advocate representing the defendants
submits that the defendants first time in the Month of March, 2024
received a copy of Execution Case No. 503 of 2023 wherein the
defendants first time came to know that this Court has disposed of C.S.
No. 220 of 2019 directing the defendants to pay sum of Rs. 53,20,416/-
along with interest at the rate of 10% per annum from the date of
receipt of final bill till the date of realization of the decretal amount.
3. Mr. Dutt submits that writ of summons was not served upon the
defendants and the services of summons upon defendants were
improper.
4. Mr. Dutt submits that the plaintiffs have filed the suit as non-
commercial suit before the Ordinary Original Civil Jurisdiction of this
Court but the alleged dispute between the parties arises out of a Work
Order for construction of a building for setting out of a leather factory
over a land allotted to the defendants at the Kolkata Leather Complex.
He submits that the disputes between the parties are commercial
3
disputes, the plaintiffs ought to have filed the suit before the
Commercial Division of this Court and not before the Ordinary Original
Civil Jurisdiction.
5. Mr. Dutt submits that the decree passed by this Court in C.S. No. 220
of 2019 dated 24th March, 2023 is without jurisdiction and has to be
considered as nullity and non-est.
6. Mr. Arabinda Chatterjee, Learned Senior Advocate representing the
plaintiffs submits that the writ of summons was sent to the defendants
in the address given in the cause title in both ways i.e. through the
Sheriff of this Court as well as through the postal services but with the
mala fide intention, the defendants did not receive summons. He
submits that thereafter in terms of the order passed by this Court,
paper publications were also made but the defendants chose not to
enter appearance in the suit and this Court proceeded the suit as an
“Un-Defended Suit”.
7. Mr. Chatterjee submits that notice was also affixed in the conspicuous
place in the premises of the defendants and conspicuous place of the
court premises even then the defendants have not appeared in the suit.
Mr. Chatterjee submits that application under Order IX, Rule 13 of the
Code of Civil Procedure, 1908 can be made by the defendants if the
defendants satisfy this Court that the summons was not served or the
defendants were prevented by any sufficient cause from appearing
4
when the suit was called for hearing but in the present case nothing so
happened.
8. Mr. Chatterjee submits that for availing the jurisdiction of Commercial
Court one has to raise dispute. He submits that dispute means a claim
or demand of one side met by contrary claim by another side. He
submits that the claim raised by the plaintiffs have not been denied or
disputed by the defendants. He submits that merely a failure and
inaction to pay which does not lead to the inference of the existence of
any dispute and until and unless there is a dispute there cannot be any
adjudication by the commercial court. He submits that in the present
case, no denial has been raised thus the plaintiffs did not have any
opportunity to exhaust the remedy of pre-institution mediation for
settling the issue under Section 12A of Commercial Courts Act, 2015.
In support of his submissions, he has relied upon the judgments in the
case of Standard Chartered Grindlays Bank Ltd. Vs. Union of
India reported in (2005) 12 SCC 738, Canara Bank Vs. National
Thermal Power Corporation reported in (2001) 1 SCC 43 and Major
(retd.) Inder Singh Rekhi Vs. Delhi Development Authority reported
in (1988) 2 SCC 338.
9. Mr. Chatterjee submits that even assuming but not admitting the
decree has been passed by the Hon’ble Court having no jurisdiction in
that case, the defendants cannot take the remedy of filing an
application under Order IX, Rule 13 of the Code of Civil Procedure,
1908 for setting aside the ex-parte decree. In support of his
5
submissions, he has relied upon the judgments in the case of Emars
Mining and Construction Pvt. Ltd. vs. Manjunath Hebbar reported
in (2021) SCC OnLine Cal 34 and State of Uttar Pradesh and
Others vs. Roshan Singh (Dead) by Lrs. and Others reported in
(2008) 2 SCC 488.
Relying upon the said judgments, he submits that the inherent
power of the Court cannot be exercised by the Court to do justice
between the parties where there is other remedies provided in the Code
of Civil Procedure, 1908.
10. Heard the Learned Counsel for the parties, perused the materials on
record and the judgments relied by the plaintiffs. The defendants have
filed the present application for setting aside the ex-parte judgment and
decree on the ground of non-service of writ of summons and the suit
filed by the plaintiffs is connected with commercial dispute but this
Court passed ex-parte judgment and decree in the Non-Commercial
Division.
11. Let this Court first examine whether the writ of summons served upon
the defendants or not. The plaint was presented before this Court on
27th September, 2019 and on the same day this Court granted leave to
the plaintiffs under Clause 12 of the Letters Patent, 1865 as well as
under Order II, Rule 2 of the Code of Civil Procedure, 1908 and
admitted the plaint subject to scrutiny by the department.
6
12. Writ of summons either through the Sheriff or through the postal
services were not served upon the defendants. On the prayer of the
plaintiffs, this Court allows the plaintiffs for substituted service by
affixation the notice of the suit at premises of the defendants and at the
conspicuous place of the Court premises. Affixation of notice was issued
on 23rd August, 2021 and as per the report of the Deputy Sheriff of
Calcutta, on 25th August, 2021, the notices were affixed on the notice
board of this Court and at the 8th Floor of the outer wall of the premises
No. 105, Park Street, Kolkata- 700016. Though the defendants have
denied with respect to affixation of notice but have admitted that the
defendants have received notice from the Registrar of this Court on 25th
August, 2021 with respect to the suit but have not received copy of the
plaint and accordingly, by a letter dated 24th September, 2021, Learned
Counsel for the defendants requested the Registrar, Original Side to
provide copy of plaint along with documents for taking appropriate
steps but inspite of receipt of the request from the defendants, no copy
of the plaint was served upon the defendants.
13. It is also find from record that even after affixation of notice at the
premises of the defendants and in the notice board of this Court, the
defendants have not entered appearance in the suit and accordingly,
the plaintiffs have prayed for publication of notice of the suit in Bangla
and English Daily News Paper for the information of the defendants. By
an order dated 4th May, 2022, this Court allowed the plaintiffs to
publish the notice of the suit in the Bengali Daily News Paper
7
“Bartamaan” and English Daily News Paper “The Statesman”. In terms
of the order passed by this Court, the plaintiffs have published the
notice of the suit in the said News Papers and have filed affidavit of
service showing the publication of the notice in the News Papers as
directed by this Court.
14. After publication of notice, the plaintiffs have obtained report from the
department wherein it reveals that defendants have not appeared in the
suit either in person or through their Learned Advocate even after
publication of the notice and by an order dated 12th July, 2022, this
Court had placed the suit in the list of “Un-Defended Suit”.
15. The defendants have taken the defence that the notices were not affixed
at the premises of the defendants but the report of the Deputy Sheriff
proved that the notices were affixed at the outer wall of the premises of
the defendants and in the notice board of this Court. On the other
hand, it is admitted by the defendants that the defendants have
received notice from the Registrar, Original Side of this Court and the
defendants by their communication requested the Registrar to provide
copy of plaint and documents but the same was not provided to the
defendants. It is not the case of the defendants that this Court has fixed
the suit in the list of “Un-Defended Suit” due to non-filing of written
statement.
16. Taking into consideration of the above, this Court finds that though the
writ of summons were not served upon the defendants through Sheriff
8
or through the postal services but thereafter the notices of the suit were
affixed at the outer wall of the premises of the defendants, notice board
of this Court, publication of notice in the Bangla News Paper and
English News Paper were also made and the plaintiffs have also
received notice from the Registrar of this Court, thus it cannot be said
that the notice of the suit was not served upon the defendants.
17. Now the question whether the suit filed by the plaintiffs relating to the
commercial dispute or non-commercial dispute. The plaintiffs
contended that the as per Section 2(1)(c) of the Commercial Courts Act,
2015, Commercial Disputes means “a dispute arising out of” and in the
present case no dispute between the parties is raised, thus the
Commercial Court has no jurisdiction. Mr. Chatterjee relied upon the
definition of “Dispute” from Black Law Dictionary which reads as
follows:
“Dispute:- 1). to question or deny the
accuracy or validity of (a statement, etc),
2. to quarrel over rights to or possession of
something disputed territory.
3. to argu about something. In dispute being
debated or contested.
As per other dictionary word Dispute means:
A conflict or controversy; a conflict of claims or
rights; an assertion of a right, claim or demand on
one side, met by contrary claims or allegations on
the other. The subject of litigation; the matter for
which a suit is brought and upon which issue is
joined, and in relation to which jurors are called
and witnesses examined.”
The plaintiffs say that there is no document to show that the
defendants have raised any dispute. The plaintiffs have raised bills and
9
also sent notices to the defendants for payment but the defendants
have not disputed with regard to the claim raised by the plaintiffs or
sent any reply by disputing the claim of the plaintiffs thus there is no
dispute arose and it cannot be said that there is any dispute.
In the case of Major (Retd.) Inder Singh Rekhi (Supra), the
Hon’ble Supreme Court held that:
“3. Therefore, in order to be entitled to order
of reference under Section 20, it is necessary that
there should be an arbitration agreement and
secondly, difference must arise to which this
agreement applied. In this case, there is no dispute
that there was an arbitration agreement. There has
been an assertion of claim by the appellant and
silence as well as refusal in respect of the same by
respondent. Therefore, a dispute has arisen
regarding non-payment of the alleged dues of the
appellant. The question is for the present case
when did such dispute arise. The High Court
proceeded on the basis that the work was
completed in 1980 and therefore, the appellant
became entitled to the payment from that date and
the cause of action under Article 137 arose from
that date. But in order to be entitled to ask for a
reference under Section 20 of the Act there must
not only be an entitlement to money but there must
be a difference or dispute must arise. It is true that
on completion of the work a right to get payment
would normally arise but where the final bills as in
this case have not been prepared as appears from
the record and when the assertion of the claim was
made on 28-02-1983 and there was non-payment,
the cause of action arose from that date, that is to
say, 28-02-1983. It is also true that a party cannot
postpone the accrual of cause of action by writing
reminders or sending reminders but where the bill
had not been finally prepared, the claim made by a
claimant is the accrual of the cause of action. A
dispute arises where there is a claim and a denial
and repudiation of the claim. The existence of
dispute is essential for appointment of an arbitrator
under Section 8 or a reference under Section 20 of
10the Act. See Law of Arbitration by R.S. Bachawat,
first edition, page 354. There should be dispute
and there can only be a dispute when a claim is
asserted by one party and denied by the other on
whatever grounds. Mere failure or inaction to pay
does not lead to the inference of the existence of
dispute. Dispute entails a positive element and
assertion of denying, not merely inaction to accede
to a claim or a request. When in a particular case a
dispute has arisen or not has to be found out from
the facts and circumstances of the case.”
In the case of Canara Bank (Supra), the Hon’ble Supreme Court
held that:
“11. What the Court has directed in ONGC’s
case is that frivolous litigation between
Government Departments and Public Sector
Undertakings of the Union of India should not be
dragged in the Courts and be amicably resolved by
the Committee. The judgment is intended to prevent
avoidable litigation between the Government
Departments and the Undertakings of the Union of
India. In the present litigation there does not
appear to be a genuine dispute between the
Government of India undertakings. In this case one
of the public sector undertaking is shown to be
acting not as an undertaking but as Trustee of a
Trust. The Board was, therefore, justified in holding
“that the real litigation in this case, therefore, is
between the Mutual Fund and NTPC” and not
between the two undertakings. The meaning of the
word “dispute” is, “a controversy having both
positive and negative aspects. It postulates the
assertion of a claim by one party and its denial by
the other”. In the instant case the claim preferred
on behalf of the CBMF was not denied by the
Corporation but in turn a counter-claim with respect
to the liability of a subsidiary of the Bank was
raised. The dispute raised is without laying any
basis or placing on record any evidence in support
thereof. Imaginative disputes raised only to defeat
the undisputed claim of the Trustee could not be
made the basis to deprive the Trustees and
ultimately the public at large, of the value of the
bonds which had, admittedly, been received by the
11Corporation with unambiguous undertaking to
repay back the same.”
In the case of Standard Chartered Grindlays Bank Ltd.
(Supra), the Hon’ble Supreme Court held that:
“10. The principal issue, which requires
consideration, is whether the Central
Government was justified in making a
reference to the Industrial Tribunal in terms set
out earlier. Section 2(k) of the Act defines
“industrial dispute” and it means any dispute
or difference between employers and
employers, or between employers and
workmen, or between workmen and workmen,
which is connected with the employment or
non-employment or the terms of employment or
with the conditions of labour, of any person.
The definition uses the word “dispute”. The
dictionary meaning of the word “dispute” is: to
contend any argument; argue for or against
something asserted or maintained. In Black’s
Law Dictionary the meaning of the word
“dispute” is: a conflict or controversy, specially
one that has given rise to a particular law suit.
In Advance Law Lexicon by P. Ramanatha Iyer
the meaning given is: claim asserted by one
party and denied by the other, be the claim
false or true; the term dispute in its wider
sense may mean the ranglings or quarrels
between the parties, one party asserting and
the other denying the liability. In Gujarat
State Cooperative Land Development Bank Ltd.
Vs. P.R. Mankad and others (1979) 3 SCC 123,
it was held that the term dispute means a
controversy having both positive and negative
aspects. It postulates the assertion of a claim
by one party and its denial by the other.”
18. The plaintiffs have filed suit for recovery of an amount of Rs.
53,20,416/- along with interest at the rate of 18% per annum against
12
the defendants. The claim of the plaintiffs is that, a piece and parcel of
Government land being Plot No. 618, Zone-8, Kolkata Leather Complex,
allotted to the defendants with the condition that the defendants would
establish a leather industry on the said plot and would use the same for
commercial purposes. The defendants acquainted with the plaintiffs
and requested the plaintiffs for quotation of rates for construction of
building for setting up leather factory over the said allotted plot to the
defendants. The plaintiffs have submitted their quotation and being
satisfied with the quotation, the defendants placed work order dated
24th June, 2014 for a value of Rs. 1,79,22,500/- for the work mentioned
in the work order. The plaintiffs undertook the work of construction as
per work order and completed the entire work with the satisfaction of
the defendants. The plaintiffs have submitted final bill of Rs.
53,20,416/- but the defendants have not paid the said amount along
with interest inspite of repeated requests made by the plaintiffs to the
defendants.
19. Under Section 2(1)(c) of the Commercial Courts Act, 2015, meaning of
Commercial dispute already defined which reads as follows:
“2.(1) In this Act, unless the context otherwise
requires,-
(c) “commercial dispute” means a dispute arising
out of–
(i) ordinary transactions of merchants,
bankers, financiers and traders such as
those relating to mercantile documents,
including enforcement and interpretation of
such documents;
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(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime
law;
(iv) transactions relating to aircraft, aircraft
engines, aircraft equipment and helicopters,
including sales, leasing and financing of the
same;
(v) carriage of goods;
(vi) construction and infrastructure contracts,
including tenders;
(vii) agreements relating to immovable property
used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements
pertaining to the services industry including
outsourcing services and financial
services;.”
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to
registered and unregistered trademarks,
copyright, patent, design, domain names,
geographical indications and
semiconductor integrated circuits;
14
(xviii) agreements for sale of goods or provision
of services;
(xix) exploitation of oil and gas reserves or
other natural resources including
electromagnetic spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the
above; and
(xxii) such other commercial disputes as may be
notified by the Central Government.
Explanation – A commercial dispute shall not
cease to be a commercial dispute merely because –
a. It also involves action for recovery of
immovable property or for realization of
monies out of immovable property given as
security or involves any other reliefs
pertaining to immovable property;
b. One of the contracting parties is the
State or any of its agencies or
instrumentalities, or a private body carrying
out public functions.”
20. The plaintiffs have relied upon the definition of “Dispute” from Black
Law Dictionary and also relied upon the judgments (supra). It is settled
law that meaning of word “dispute” is a controversy having both
positive and negative aspects. It postulates the assertion of a claim by
one party and its denial by other. The Counsel for the plaintiffs has
pressed the word “dispute” out of total sentence of Section 2(1)(c) means
“a dispute arising out of” but the Learned Counsel for the plaintiffs has
not considered that Section 2(1)(c) of the Commercial Courts Act, 2015
define the word “Commercial Dispute”.
15
As per Section 2(1)(c) of the Act of 2015, the definition of
“commercial dispute” means the dispute between the parties arose any
of the clauses i.e. from clause (i) to clause (xxii) including explanation.
21. In the present case, the claim of the plaintiffs is in connection with the
work order issued by the defendants to the plaintiffs for construction of
building for setting up leather factory and the plaintiffs have
constructed the building for leather factory in terms of work order but
the defendants have not paid the bill amount raised by the plaintiffs.
The case of the plaintiffs covered under the Clause (vi) of Section 2(1)(c)
of the Commercial Courts Act, 2015 which reads as follows:
“(vi). Construction and infrastructure contracts,
including tenders.”
22. The Division Bench of Andhra Pradesh High Court in Blue Nile
Developers (P) Ltd. v. Movva Chandra Sekhar,
MANU/AP/1486/2021: 2021:APHC:28878 has extensively dealt with
the above clause. The relevant extracts are reproduced below:-
“22. Hence from the above, it is clear that the
“legislature” has included the various types of
commercial transactions to bring under the fold of
“commercial dispute” in case of any dispute arises
from any of those transactions. On a careful
reading of the above said provision of the Act, it is
obvious that the legislature has taken due care
while incorporating the above said clauses from (i)
to (xxii) in Section 2(1)(c) of the Act by avoiding the
repetition of words and sentences without effecting
the full fledged meaning of the same even on
expansion of the said each clause. Therefore, either
giving any restrictive meaning or reading of a
clause in isolation and expansion of one word only
in the said clause would hamper and frustrate the
16meaningful definition of the said clause on it’s
expansion by abrogating certain category of
transactions from the purview of the benefit of the
above said Act which is not otherwise the
intendment of the legislature in bringing out the
said enactment.
23. For the sake of illustration, if we confine
the definition of clause (vi) of the above said
provision of the Act to the infrastructure contracts
only, then it would exclude the category of
construction contracts and construction and
infrastructure contracts from it’s purview.
24. Suppose, if it is read as “construction and
infrastructure contracts” as one word/one
sentence, then it would exclude the category of the
construction contracts and infrastructure contracts
separately from its purview.
25. But that is not the intendment of the above
said central enactment, as it is clear from the scope
and object of the Act. All the types of “commercial
transactions” are saved in the Section 2(1)(c) of the
Act subject to the condition that it satisfies the
“specified value” stipulated under the Act for the
purpose of assumption of the jurisdiction by the
Special Court/the Commercial Court. Except that no
category of commercial transaction is excluded from
the purview of the above said Act which is evident
from the reading of the above said section and its
clauses.”
23. In view of the above, this Court finds that the suit filed by the plaintiffs
is a commercial suit covered under clause (vi) of Section 2(1)(c) of the
Commercial Courts Act, 2015, but this Court passed Judgment and
Decree dated 24th March, 2023 in C.S. No. 220 of 2019 as non-
commercial suit.
24. The defendants have raised another issue that assuming that this
Court held that the judgement and decree passed by this Court without
17
having jurisdiction, this Court cannot set aside the said decree in an
application under Order 9, Rule 13 of the Code of Civil Procedure,
1908. He submits that inherent power of the Court can be exercised by
the Court to do justice between the parties where there is no other
remedies provided in the Code of Civil Procedure, 1908. He submits
that it cannot be used as an alternative remedy. In support of his
submissions, Mr. Chatterjee relied upon the judgment in the case of
Emars Mining and Construction Pvt. Ltd. (Supra) wherein the
Coordinate Bench of this Court held that:
“12. The Supreme Court in Ram Prakash
Agarwal v. Gopi Krishnan (Dead through LRS),
reported in (2013) 11 SCC 296 had held:
“15. In exceptional circumstances, the Court
may exercise its inherent powers, apart from
Order 9 CPC to set aside an ex parte decree. An
ex-parte decree passed due to the non-
appearance of the counsel of a party, owing to
the fact that the party was not at fault, can be
set aside in an appeal preferred against it. So is
the case, where the absence of a defendant is
caused on account of a mistake of the court. An
application under Section 151 CPC will be
maintainable, in the event that an ex parte
order has been obtained by fraud upon the
court or by collusion. The provisions of
Order 9 CPC may not be attracted, and in
such a case the court may either restore the
case, or set aside the ex parte order in the
exercise of its inherent powers.
There may be an order of dismissal of a suit
for default of appearance of the plaintiff, who
was in fact dead at the time that the order was
passed. Thus, where a court employs a
procedure to do something that it never intended
to do, and there is miscarriage of justice, or an
abuse of the process of Court, the injustice
so done must be remedied, in accordance
with the principle of actus curia neminem
18gravabit – an act of the court shall prejudice
no person.
16.**
17.**
18.**
19. In view of the above, the law on
this issue stands crystallised to the effect
that the inherent powers enshrined under
Section 151 CPC can be exercised only
where no remedy has been provided for in
any other provision of the CPC. In the event
that a party has obtained a decree or order
by playing a fraud upon the court, or where
an order has been passed by a mistake of
the court, the court may be justified in
rectifying such mistake, either by recalling
the said order, or by passing any other
appropriate order. However, inherent powers
cannot be used in conflict of any other existing
provision, or in case a remedy has been provided
for by any other provision of the CPC. Moreover,
in the event that a fraud has been played upon a
party, the same may not be a case where
inherent powers can be exercised.”
Mr. Chatterjee further relied upon the judgment in the case of
State of Uttar Pradesh and Ors. (Supra) wherein the Hon’ble
Supreme Court held that:
“7. The principles which regulate the exercise
of inherent powers by a court have been
highlighted in many cases. In matters with which
the Code of Civil Procedure does not deal with, the
court will exercise its inherent power to do justice
between the parties which is warranted under the
circumstances and which the necessities of the
case require. If there are specific provisions of the
Code of Civil Procedure dealing with the 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 powers of the
19court cannot be invoked in order to cut across the
powers conferred by the Code of Civil Procedure.
The inherent powers of the court are not to be used
for the benefit of a litigant who has a remedy under
the Code of Civil Procedure. Similar is the position
vis-à-vis other statutes.
8. The object of Section 151 CPC is to
supplement and not to replace the remedies
provided for in the Code of Civil Procedure. Section
151 CPC will not be available when there is
alternative remedy and the same is accepted to be
a well-settled ratio of law. The operative field of
power being thus restricted, the same cannot be
risen to inherent power. The inherent powers of the
court are in addition to the powers specifically
conferred on it. If there are express provisions
covering a particular topic, such power cannot be
exercised in that regard. The section confers on the
court power of making such orders as may be
necessary for the ends of justice of the court.
Section 151 CPC cannot be invoked when there is
express provision even under which the relief can
be claimed by the aggrieved party. The power can
only be invoked to supplement the provisions of the
Code and not to override or evade other express
provisions. The position is not different so far as
the other statutes are concerned. Undisputedly, an
aggrieved person is not remediless under the Act.”
25. The defendants relied upon the provisions of Order 43, Rule 1 of the
Code of Civil Procedure, 1908 and Section 151 of the Code of Civil
Procedure, 1908 and submit that error apparent on the face of record
and this Court can rectify the error by recalling or review of the
judgement to avoid multiplicity of proceedings.
26. In the case of My Palace Mutually Aided Co-operative Society Vs. B.
Mahesh and Ors. reported in MANU/SC/1030/2022, the Hon’ble
Supreme Court held that:
20
“33. The subsequent judgment of this Court
in Ram Prakash Agarwal v. Gopi Krishan,
(2013) 11 SCC 296 further clarifies the law on the
use of the power Under Section 151 of the Code of
Civil Procedure by the Court in cases of fraud and
holds as follows:
13. Section 151 Code of Civil Procedure is
not a substantive provision that confers the
right to get any relief of any kind. It is a mere
procedural provision which enables a party to
have the proceedings of a pending suit
conducted in a manner that is consistent with
justice and equity. The court can do justice
between the parties before it. Similarly,
inherent powers cannot be used to re-open
settled matters. The inherent powers of the
Court must, to that extent, be regarded as
abrogated by the legislature. A provision
barring the exercise of inherent power need
not be express, it may even be implied.
Inherent power cannot be used to restrain the
execution of a decree at the instance of one
who was not a party to suit. Such power is
absolutely essential for securing the ends of
justice, and to overcome the failure of justice.
The Court Under Section 151 Code of Civil
Procedure may adopt any procedure to do
justice, unless the same is expressly
prohibited.
Xxx
19. In view of the above, the law on
this issue stands crystallised to the effect
that the inherent powers enshrined Under
Section 151 Code of Civil Procedure can be
exercised only where no remedy has been
provided for in any other provision of Code of
Civil Procedure. In the event that a party has
obtained a decree or order by playing a fraud
upon the court, or where an order has been
passed by a mistake of the court, the court
may be justified in rectifying such mistake,
either by recalling the said order, or by
passing any other appropriate order.
However, inherent powers cannot be used
in conflict of any other existing provision,
or in case a remedy has been provided for
21
by any other provision of Code of Civil
Procedure. Moreover, in the event that a
fraud has been played upon a party, the
same may not be a case where inherent
powers can be exercised.”
27. The defendants have filed the application under Order IX, Rule 13 of
the Code of Civil Procedure, 1908 for setting aside the judgment and
decree on the ground of non-issuance of writ of summons and further
the suit is commercial in nature but judgment and decree passed in
non-commercial suit. As regard issuance of writ of summons, this
Court already held that it cannot be said that the notice of the suit was
not served upon the defendants. This Court already held that the suit
filed by the plaintiffs is commercial in nature but neither under Order
IX, Rule 13 nor under Section 151 of the Code of Civil Procedure, 1908,
this Court cannot recall/review the judgment and decree dated 24th
March, 2023 passed due to lack of jurisdiction as the defendants
having alternative remedy under the Code of Civil Procedure, 1908.
28. In view of the above, the G.A. No. 5 of 2024 is thus dismissed.
(Krishna Rao, J.)