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2014 DIGILAW 3072 (ALL)

Vinod Ji Nigam v. Additional District Judge, Court No. 8, Unnao

2014-10-07

MAHENDRA DAYAL

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JUDGMENT Mahendra Dayal, J. Heard learned counsel for the petitioner and the learned Standing Counsel on behalf of opposite party No. 1. No one has appeared on behalf of opposite party No. 2, although the list has been revised. 2. The petitioner has assailed the judgment and order dated 18.11.2013, passed by Additional District Judge, Court No. 8, Unnao, in SCC No. 03 of 2007, whereby the application No. 117-C for recall of the order dated 3.9.2012 has been allowed on payment of cost of Rs. 500/-. 3. The learned counsel for the petitioners submits that in the SCC Suit filed against the opposite party No. 2, the petitioners had moved application 69-C for striking off the defence on the ground that the requisite amount of arrears of rent has not been deposited by the opposite party No. 2. The learned court below by an order dated 3.9.2012 allowed the application of the petitioner and struck of the defence of opposite party No. 2. Thereafter the SCC suit proceeded and the evidence of the one of the witnesses of the petitioner was also recorded/Thereafter the opposite party No. 2 moved an application on 26.10.2013 for recall of the order dated 3.9.2012 has attained finality and there is also no ground for review, as such the application for recall should not be allowed. However, from the perusal of the impugned order, it reflects that the learned court below has proceeded and allowed the application merely on the ground that the principles of natural justice require that order should be passed on the merit after giving opportunity of hearing to both the parties. Learned counsel for the petitioners submits that the order dated 3.9.2012 was passed after giving opportunity of hearing to the parties. 4. It is also a submission on behalf of the petitioners that the against the order dated 3.9.2012 the opposite party No. 2 had an alternative remedy to approach higher Court by way of filing revision but he did not choose to avail that remedy, and as such, the order dated 3.9.2012 became final. After a gap of about one year when one of the witnesses of the petitioners was examined, the opposite party No. 2 feeling that he had no right to lead evidence in the suit and his defence would not be taken into consideration, filed the application for recall. 5. After a gap of about one year when one of the witnesses of the petitioners was examined, the opposite party No. 2 feeling that he had no right to lead evidence in the suit and his defence would not be taken into consideration, filed the application for recall. 5. The learned counsel for the petitioners has submitted |that there was no ground for recall of the order as well as for review of the order as there was no error apparent on the face of record to attract review of the order. The learned court below has taken recourse of the provision of Section 151 CPC which deals inherent power of the court. 6. The learned counsel for the petitioners has submitted that every court has inherent power but the said inherent power is exercised when there is no specific provision. In support of his contention learned counsel for the petitioners has placed reliance on the judgment of Hon’ble Supreme Court in the case of Padam Sen and another v. The State of UP., reported in AIR 1961 Supreme Court 218; in which the Hon’ble Supreme Court has held that the inherent powers of the Court are in addition to the powers specifically conferred on the Court b^ the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purpose mentioned in S. 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 powers is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code. The same principle has been followed by the Hon’ble Supreme Court in another case reported in AIR 1962 Supreme Court 527(1), Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal. 7. The learned counsel for the petitioners has also relied upon a case reported in AIR 1979 Allahabad 110, Kailash Singh Rajput v. Ram Prakash, in which the Hon’ble Allahabad High Court has held that the court has no power to review its order in exercise of its inherent power. It is well settled that the power of review is not inherent power. 8. It is well settled that the power of review is not inherent power. 8. From the perusal of the impugned order I find that the learned court below has assumed that the order dated 3.9.2012 was passed without giving opportunity of hearing to both the parties, while the facts are otherwise. A copy of the order dated 3.9.2012 has already been annexed with the writ petition, which clearly indicates that the said order was passed after giving full opportunity of hearing to both the parties, and as such, it cannot be said that the order was passed without hearing the parties. It is not mentioned in the impugned order that there was any error apparent on the face of record, and as such, learned court below had no jurisdiction to recall or review the order which had attained finality and the opposite party No. 2 had not availed of any remedy by approaching the higher Court. 9. In view of the above, the writ petition deserves to be allowed and is hereby allowed. The impugned order dated 18.11.2013 is hereby set aside. 10. No order as to costs.