TMI Blog2022 (8) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect 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 - 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. Recalling a final decree in such circumstances cannot be countenanced under Section 151 of the CPC. The High Court erred in exercising its jurisdiction under Section 151 of the CPC, to hear and pass a detailed judgment recalling its earlier final decree dated 19.09.2013, rather than directing the respondents to pursue the effective alternate remedies under law. It is a well established principle, both in jurisprudence and across the world, that [N]ot only must justice be done; it must also be seen to be done - In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court numbered as C.S. No. 7/1958. The suit along with certain applications were disposed of by a preliminary cum final decree dated 06.04.1959 passed by the learned Judge of the High Court of Andhra Pradesh. The judgment recorded that the plaintiff withdraws the suit against defendant Nos. 27 to 49. It also recorded that a compromise was affected amongst some of the defendants. The litigation relating to this original suit subsequently enters a complicated phase, wherein several different parallel proceedings take place. Suffice to state, that even after 60 years, the issues in the same are not settled. 5. It is the say of the present appellant that they acquired the property in Sy. No. 57 of Shamsguda Village under an Assignment Deed dated 16.09.2000 executed by the earlier predecessor in interest under the preliminary decree. The predecessors in interest had also executed a Conveyance Deed dated 03.08.2003 in favour of the appellant, conveying the schedule property with specific boundaries. As the earlier Assignment Deed dated 16.09.2000 and Conveyance Deed dated 03.08.2003 were unregistered documents, the predecessors in interest also executed a registered document in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/2020 To allow impleadment. 5/2020 To recall the order dated 19.09.2013 passed in the above mentioned application and to set aside and pass such other order or orders as deemed fit and proper in the circumstances of the case 6/2020. To direct the appellant to not to alienate, not to interfere, not to change peaceful possession, not register any documents in scheduled property in Sy No.57 and any subdivision numbers in Sy No 57 of Shamsguda in the above mentioned application 11. A Division Bench of the High Court of Telangana vide order dated 05.01.2021, allowed IA No. 1/2021 preferred by the respondents and granted them leave to file the application recalling the final decree dated 19.09.2013, passed by the learned Single Judge of the High Court in Application No. 837/2013 in C.S No. 7/1958. 12. The aforesaid order was challenged before this Court in an earlier Special Leave Petition, being SLP(C) No. 8025/2021. This Court, by order dated 06.07.2021, dismissed the said petition and gave the parties liberty to raise all objections when the substantial applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal. This Court dismissed the abovementioned application for impleadment vide order dated 22.07.2022. 18. The State of Telangana also filed separate Special Leave Petitions challenging the present impugned order dated 22.12.2020, as well and the earlier order dated 22.12.2020 dismissing their intra court appeal [SLP (C) No. 13453 of 2022 and SLP (C) No. 13454 13456 of 2022]. These Special Leave Petitions were heard on 01.08.2022 by this Court and were dismissed in light of the observations made by the High Court in paragraph 116 of the impugned order. In any case, the claim of the State over the scheduled property is not sufficiently supported by any documentary evidence. 19. Dr. A. M. Singhvi, learned Senior Counsel appearing on behalf of the appellant, submitted as follows: (i) No recall application could have been filed by the respondents. Their only remedy was a separate civil suit for declaration of title. (ii) The preliminary decree in the matter was passed on 06.04.1959 and the final decree in favour of the appellant was passed on 19.09.2013. The appeal preferred by the State of Telangana challenging the final decree was dismissed by the High Court on 22.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) The present litigation is nothing but a proxy litigation. Unrelated third parties are seeking to interfere in the present matter as the value of the subject property is very high. (iv) The allegations of fraud were never taken before any forum until the impugned recall application before the High Court. Such plea taken by the third party without any supporting documents cannot be raised at a belated stage. (v) Once the State s appeal against the final decree was dismissed on grounds of delay, the respondents recall application should have been similarly dismissed. 21. Mr. C. S. Sundaram, learned Senior Counsel appearing on behalf of respondent No. 1, submitted as follows: (i) respondent No.1 is claiming through the original pattedar of the property. The recall applications were filed soon after his possession over the property was sought to be disturbed. Therefore, the question of delay does not arise. (ii) The preliminary decree indicates that the title to the suit property was conditional. The respondents claim was upheld in the Atiyat Court, which was not shown before the learned Single Judge at the time of passing of the final decree on 19.09.2013. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 136 of the Constitution. 24. We have heard the learned Senior counsel on either side, perused the entire material on record. Though several grounds have been raised, the first ground taken is that the High Court erred in exercising jurisdiction under Section 151 of the CPC, when alternate remedies exist under the CPC. Second ground is that the Senior Judge on the Bench, who appeared for one of the parties, ought not to have heard the matter. 25. In response to the first leg of challenge, i.e., on the procedural aspect, we may note that the recall application was filed under Section 151 of the CPC against the final decree dated 19.09.2013. It is in this context that we must ascertain whether a third party to a final decree can be allowed to file such applications, by invoking the inherent powers of the Court under Section 151 of the CPC. 26. 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 such a provision is worded broadly, this Court has tempered the provision to limit its ambit to only those circumstances where certain procedural gaps exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties to the suit, they could have filed an appeal with the leave of the Court as an affected party. Section 96 of the CPC reads as under: 96. Appeal from original decree . (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. [(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed [ten thousand rupees.] 30. Sections 96 to 100 of CPC deals with the procedure for filing appeals from original decrees. A perusal of the above provision makes it clear that the provisions are silent about the category of persons who can prefer an appeal. But it is well settled legal position that a person who is affected by a judgment but is not a party to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (emphasis supplied) 34. The High Court, relying upon the above judgments of this Court which recognizes the power to recall, seems to have lost sight of the restrictions imposed while exercising jurisdiction under Section 151 of the CPC, which were elaborately discussed by this Court in the above referred judgment about exercising of the power under Section 151 of the CPC being only in circumstances where alternat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me time also look at the issue of whether right minded persons could consider there exists any real likelihood of bias. In the case of State of West Bengal v. Shivananda Pathak, 1998 5 SCC 513, this Court held as under: 34. In Metropolitan Properties Co. v. Lannon [(1968) 1 WLR 815 : (1968) 1 All ER 354] it was observed whether there was a real likelihood of bias or not has to be ascertained with reference to right minded persons; whether they would consider that there was a real likelihood of bias . Almost the same test has also been applied here in an old decision, namely, in Manak Lal v. Dr Prem Chand Singhvi [AIR 1957 SC 425 : 1957 SCR 575] . In that case, although the Court found that the Chairman of the Bar Council Tribunal appointed by the Chief Justice of the Rajasthan High Court to enquire into the misconduct of Manak Lal, an advocate, on the complaint of one Prem Chand was not biased towards him, it was held that he should not have presided over the proceedings to give effect to the salutary principle that justice should not only be done, it should also be seen to be done in view of the fact that the Chairman, who, undoubtedly, was a Senior Advocate and an ex Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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