DAYA ENGG. WORKS (SLEEPER) LTD. v. UNION OF INDIA & ANR.

Delhi High Court · 17 Jan 2023 · 2023:DHC:373

CHANDRA DHARI SINGH

O.M.P. (T) (COMM.) 1/2020

2023:DHC:373

civil petition_dismissed Significant

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The Delhi High Court held that inherent powers under Section 151 CPC to recall an order are limited to exceptional cases and dismissed the petitioner's application seeking recall of an order passed on merits without such circumstances.

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NEUTRAL CITATION NO:2023/DHC/000373

O.M.P. (T) (COMM.) 1/2020
HIGH COURT OF DELHI
Date of order : 17th January 2023

O.M.P. (T) (COMM.) 1/2020
DAYA ENGG. WORKS (SLEEPER) LTD. .... Petitioner
Through: Mr. Anant Agarwal, Advocate

VERSUS

UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Bhagvan Swarup Shukla, CGSC with Mr. Sarvan Kumar, Advocate for UOI

CORAM:

HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
CHANDRA DHARI SINGH, J (Oral)

I.A. 776/2023 (Delay)

ORDER

1. This is an application under Section 5 of Limitation Act, 1963 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter "CPC") for condonation of delay in filing the recall application.

2. For the reason stated in the application, the delay of 76 days in filing the recall application is condoned.

3. The application is disposed of. I.A. 775/2023 (Recalling of order dated 26th September, 2022)

1. The instant application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the petitioner seeking the following relief:- “a) Recall order dated 26.09.2022 passed by the Hon'ble Court and the present petition be decided on merits again…”

2. Learned counsel for the petitioner submitted that on 26.09.2022, the present case was listed and when the case was called out, the present counsel was arguing before another Bench and was thus, unable to appear before the Court and hence, this Court dismissed the petition vide its order dated 26.09.2022.

3. It is further submitted that vide order dated 09.01.2020 the arbitral record was summoned and this Order was communicated to the learned Arbitrator. However, the learned Arbitrator proceeded with the arbitral proceedings and instead of sending the arbitral record to the High Court, passed the arbitral award in utter disobedience of the orders of this Court.

4. It is further submitted that the aforesaid facts were not mentioned by the respondents and, that the counsel of the petitioner was arguing before another Bench of this Court and was thu s unable to appear before the Court at the time when the order dated 26.09.2022 was passed by the Court.

5. Per Contra, learned counsel for the respondent vehemently opposed the prayers made in the instant application and submitted that the proceedings in which the validity of the said order is being contested is not proper. The instant application accordingly merits to be dismissed.

6. Heard learned counsel for the parties and perused the record as well as the impugned order that is sought to be recalled.

7. The main petition had been filed under Section 14 read with Section 15 of the Arbitration and Conciliation Act, 1996 seeking termination of the mandate of the Sole Arbitrator and appointment of substitute Arbitrator for adjudicating the disputes that have arisen between the parties.

8. The said petition was dismissed by this Court vide its order dated 26.09.2022. The said order is extracted hereunder:

“1. None is present on behalf of the Petitioner. 2. Learned counsel for the Respondent submits that he has been handed over the Letter dated 16.08.2022 from the Respondent wherein it is mentioned that the Award had already been announced on 24.07.2020 and pursuant to the Award, a No Claim Certificate was received from the firm and thereafter the FDR has already been received vide Letter dated 11.01.2021. In view of the Letter submitted on behalf of the Respondent, nothing further survives in the present petition, which is hereby dismissed.”

9. A bare perusal of the Order makes it evident that the said Order has been passed on merits. Before delving into the matter, it is pertinent to peruse the law on recall of its order by a Court.

10. Section 151 of the CPC provides for Civil Courts to invoke their inherent jurisdiction and utilize the same to meet the ends of justice or to prevent abuse of process. Although the provision is broadly worded, the said provision has been interpreted to limit its ambit to only those circumstances where certain procedural gaps exist, to ensure that substantive justice is not obliterated by hyper technicalities. As far as back in 1961, this Court in Padam Sen v. State of U.P., AIR 1961 SC 218, observed as under:

“8. …The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.”

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11. In the case of Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396, the Hon’ble Supreme Court held as under:

“6. What is a power to recall? Inherent power to recall its

own order vesting in tribunals or courts was noticed in

Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5

SCC 550] Vide para 23, this Court has held that the courts

have inherent power to recall and set aside an order

(i) obtained by fraud practised upon the court,

(ii) when the court is misled by a party, or

(iii) when the court itself commits a mistake which prejudices a party.

In A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602: 1988 SCC (Cri) 372: AIR 1988 SC 1531, para 130] (vide para 130), this Court has noticed motions to set aside judgments being permitted where

(i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,

(ii) a judgment was obtained by fraud,

(iii) a party has had no notice and a decree was made against him and such party approaches the court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.

7. In Corpus Juris Secundum (Vol. XIX) under the chapter “Judgment —Opening and Vacating” (paras 265 to 284, at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.

8. In our opinion a tribunal or a court may recall an order earlier made by it if

(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,

(ii) there exists fraud or collusion in obtaining the judgment,

(iii) there has been a mistake of the court prejudicing a party, or

(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.”

12. The judgment of the Hon’ble Supreme 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 CPC by the Court and holds as follows:

“13. Section 151 CPC 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 CPC 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 CPC can be exercised only where no remedy has been provided for in any other provision of 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 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.”

13. Recently, in the case of My Palace Mutually Aided Coop. Society v. B. Mahesh, 2022 SCC OnLine SC 1063, the Hon’ble Supreme Court has held as under:

“27. In exercising powers under Section 151 of the CPC, it cannot be said that the civil courts can exercise substantive jurisdiction to unsettle already decided issues. A Court having jurisdiction over the relevant subject matter has the power to decide and may come either to a right or a wrong conclusion. Even if a wrong conclusion is arrived at or an incorrect decree is passed by the jurisdictional court, the

same is binding on the parties until it is set aside by an appellate court or through other remedies provided in law.

28. Section 151 of the CPC can only be applicable if there is no alternate remedy available in accordance with the existing provisions of law. Such inherent power cannot override statutory prohibitions or create remedies which are not contemplated under the Code. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals, revisions, or reviews. A party cannot find solace in Section 151 to allege and rectify historic wrongs and bypass procedural safeguards inbuilt in the CPC.”

14. In view of the aforesaid, it is evident that the scope of Section 151 of the Code is limited and the inherent powers enshrined therein can be exercised only where no remedy has been provided for in any other provision of law. The exceptions carved out where recall of order can be permitted, as outlined in the aforementioned judgments, has not been satisfied by the petitioner.

15. In any case, it is an established position of law that settled things cannot be permitted to be unsettled at the behest of a person who has not been careful enough with regard to his rights and claim.

16. Therefore, in the instant case, the Order sought to be recalled being passed on merits and no exceptional circumstances as outlined hereinabove being met, no case is made out to entertain the aforesaid application.

17. In light of the above, the instant application being devoid of merits stands dismissed.

18. The order be uploaded on the website forthwith.

JUDGE JANUARY 17, 2023 dy/@dityak Click here to check corrigendum, if any

DAYA ENGG. WORKS (SLEEPER) LTD. v. UNION OF INDIA & ANR.

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