Research › Browse › Judgment

Delhi High Court · body

1968 DIGILAW 53 (DEL)

MUNICIPAL CORPORATION OF DELHI v. SUNNI MAJLIS AUKAF

1968-04-19

I.D.DUA

body1968
I. D. Dua ( 1 ) THIS revision has been presented in this Court under section 115, Civil P. C. , and Article 227 of the Constitution of India and is directed against the order of a learned Sabordinate judge Class dated 2ndmay 1961, declining to review under section 151, Code of Civil Procedure, its earlier order dated 7th February, 1959 passed in Execution case No. 357 of 1957 (Municipal Com- mittee Delhi v. Sunni Majlis Aukaj etc ) ( 2 ) THE Municipal Corporation Delhi, it appears, had obtained a decree against Sunni Majlis Aukaf and Bhagwan Dass for possession of the suit property subject to the condition that the execution of the decree would be taken out alter the expiry of two years from its date This decree was a compromise decree based on a joint statement of the parties made at the trial on 18th May, 1953. The mesne profits were to be fixed after the inspection of the property by the Court and it was actually fixed at the rate of Rs. 20. 00 per month pending the recovery of possession. Possession, I am informed, was actually delivered on 30th April, 1957. Execution of the decree in regard to the mesne profits was sought, but the same was dismissed by Shri C D. Vashistha, Subordinate Judge II Class, Delhi on 7th February, 1959. It was observed by the executing Court that the execution petition could not be made unless a final decree was passed as provided by Order XX, Rule 12 (2), Code of Civil Produre. In the view of the executing Court, in the case in hand, the Court trying the suit had only laid down the mode of calculation of mesne profits and no definite sum was ascertained. Unless, therefore, a final decree was passed, the decree sought to be executed was inexecutable according to law at that stage because the executing Court could not calculate the amount. A final decree, according to the executing Court, had to be passed by the Court disposing of the suit. The concluding portion of the order was in the following words : - "in view of the reasons above mentioned, I hold that the mesne profits as claimed by the decree holder cannot be recovered in this execution application. Bat, there is no bar with respect to the recovery of costs. The concluding portion of the order was in the following words : - "in view of the reasons above mentioned, I hold that the mesne profits as claimed by the decree holder cannot be recovered in this execution application. Bat, there is no bar with respect to the recovery of costs. Hence, the costs be recovered from the J. D. according to law. " ( 3 ) FOR reasons best known to the Municipal Committee, Delhi this order was not appealed from and on 28th March, 1960, an application, out of which this revision arises, was presented under section 151, Civil P. C. . for reviewing the order dated 7th February, 1959. By means of the impugned order dated 22nd May, 1961, the Court below has rejected that application with the observation that the impugned order was appealable and also subject to review under Order XLVII, Civil P. C. , both of which remedies were subject to a period of limitation prescribed by statute. In face of these remedies, the Court felt helpless and declined to exercise its inherent power under section 151 of the Code. ( 4 ) ON revision before me, the learned counsel for the petitioner (now the Municipal Corporation of Delhi) Shri S. S. Chadha has very strongly urged that no litigant should suffer by a mistake committed by the Court and, therefore, in the present case, when the Court below has, in the impugned order, held that there was already in existence a decree, it should have reviewed and set aside the earlier order dated 7th February, 1959 and executed the decree made in favour of the petitioner- decree-holder. In support of this submission, he has strongly relied on Rajendra Singh v. Ramganit Singh, S. Dhillu Singh v. S. Sohan Singh and Hasan Vali Bagas v. Isap Bapuji Patet. ( 5 ) I my opinion, none of these decisions lays down any rule of law which can appropriately and justly be applied to the case in hand. It is conceded that the impugned order was appealable. It is also incontrovertible that such appeal is subject to a period of limitation, after the expiry of which the order becomes final. ( 5 ) I my opinion, none of these decisions lays down any rule of law which can appropriately and justly be applied to the case in hand. It is conceded that the impugned order was appealable. It is also incontrovertible that such appeal is subject to a period of limitation, after the expiry of which the order becomes final. It is not denied that remedy by way of review is provided by the Code of Civil Procedure in the form of section 114 and Order XLVII, and it is again not controverted that there is a period of limitation fixed for such review application. In such a situation, to resort to the inherent powers of the Court, as have been preserveo to it by section 151, Code of Civil Procedure, is a procedure which has to be justified by very strong exceptional circumstances. Nothing in this connection has been stated at the bar and all that has been submitted is that if the inherent powers of the Court are not allowed to be invoked in this case, great injustice will be done to the decree- holder. As to why the decree holder has not taken suitable steps for seeking the requisite relief within the prescribed period of limitation by having resort to remedies by way of appeal and review, has been left only to be guessed and not only has no material been brought on the record, but nothing has been stated even in the arguments at the bar to induce this Court to interfere under section 115, Civil P. C. or under Article 2-7 of the Constitution. No jurisdictional infirmity has been pointed out and all that has been contended is that the Court below has erronaously failed to exercise its jurisdiction by merely observing that the inherent powers cannot be invoked in face of the provisions by way of appeal and review. The view of the Court below on the facts of this case cannot, in my opinion, be said to be in any way infirm. The view of the Court below on the facts of this case cannot, in my opinion, be said to be in any way infirm. Section 151 of the Code merely reserves to the Court inherent power to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court and this power, though rightly undefined, cannot ordiarily be utilised fur permitting a Court to reverse its earlier order on the sole ground that it is later found to be erroneous on the merits. The gieat principle stated by Lord Cairns in Rodger v. The Comploir D eseomple De Paris, in the following words :- one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors", does not, in my view, mean that whenever a Court after wrongly deciding a case between two parties discovers that the decision was erroneons it has inherent jurisdiction to re-open the matter and to set it right by reversing the earlier decision. Ordinarily, when a Court has made a mistake, the aggrieved party has to get it corrected by appeal, revision or review and not by invoking the inherent power under section lo I of the Code which is only intended to secure the ends of justice or to prevent the abuse of the process of the Court. The ends of justice contemplated by section 151 extend to all the litigating parties. before the Court and are not confined to the right of only one of them I am not unmindful of the fact that the petitioner is a local authority which is being deprived of the fruits of the order in its favour, but it must not be forgotten that the law does not confer any special privilege on the local authority to sleep over its lights by neglecting the legal remedies open to it and after the expiry of limitation, to resort to the inherent powers of the Court, ignoring the rights which have, by reason its own neglect, accrued to the opposite. . party. The persona put in charge of the affairs of local bodies, like the petitioner in this Court, are more or less ia the portion of quasi trustees and they are expected to perform their duties with due care and attention. . party. The persona put in charge of the affairs of local bodies, like the petitioner in this Court, are more or less ia the portion of quasi trustees and they are expected to perform their duties with due care and attention. Failare to do so without reasonable cause, might well expose them to the risk of being; proceeded against for making good the loss suffered by the public body and it is high time that this aspect is duly considered by the authorities concerned and given the importance it deserves in a set-up like ours. This Court has to administer law equally and no favour outside the law can be shown to the local bodies like the petitioner on the facts and circumstances of this case. In my opinion, the order of the Court below is unexceptionable and it is not easy to hold that the Court below has committed any serious jurisdictional, constitutional or similar illegality in declining under section 131 of the Code to set aside the order made nearly 13 months earlier. ( 6 ) FOR all the foregoing reasons, this revision fails and is dismissed with costs.