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Madhya Pradesh High Court · body

2018 DIGILAW 37 (MP)

Alok v. Shashi Somani

2018-01-10

VIVEK RUSIA

body2018
ORDER 1. The petitioner has filed the present petition being aggrieved by order date 16.2.2017 by which application under section 151 of the CPC has been rejected. 2. The petitioner plaintiff filed the suit for specific performance of the contract. The plaintiff and the defendants are close relatives. Defendant No.1 executed an agreement to sale date 23.11.2007 in favour of the plaintiff in respect of the sale of House No. 530 Katju Nagar Ratlam, in total sale consideration of Rs. 23 lacs. According to the plaintiff at the time of execution of the agreement he paid amount of Rs. 3,50,000/- as an advance amount and the defendant has agreed to execute the sale deed within six months. Thereafter the plaintiff has paid amount of Rs. 4 lacs to the defendant No.1. 3. After notice, the defendant filed the written statement denying the averment made in the plaint. Thereafter the trial Court has framed the issues for adjudication. During evidence when the plaintiff has tendered the agreement to sale, the defendant raised an objection that it is neither registered nor properly stamped therefore, it cannot be marked as an exhibit. vide order date 25.2.2015 the trial Court has directed the parties to appear before the Collector (Stamps) on 17.3.2015 for the purpose of impounding but till today, the Collector has not passed any order for impounding. 4. The plaintiff filed an application under section 151 CPC on 5.12.2016 for recalling of order date 25.2.2015 in the light of the judgment passed by this Court in case of Chandmal and another v. Labhchand and another, reported in 2016 (3) MPLJ. The learned “trial Court after considering the judgment has rejected the application filed under section 151 of CPC hence, the present petition. 5. Learned Counsel for the petitioner submits that in a suit for specific performance the agreement to sale is not required to be registered therefore, the learned trial Court has wrongly referred the document to the Collector Stamps for impounding. 6. The learned trial Court vide order date 25.2.2015 has already referred the document to the Collector for impounding and the said order has not been challenged by the petitioner at the relevant time but filed the application under section 151 CPC on the basis of the judgment passed in the case of Chandmal (supra). 6. The learned trial Court vide order date 25.2.2015 has already referred the document to the Collector for impounding and the said order has not been challenged by the petitioner at the relevant time but filed the application under section 151 CPC on the basis of the judgment passed in the case of Chandmal (supra). After filing this petition, now the petitioner has filed an application for amendment to challenge the order date 25.2.2015 also. The provision of section 151 CPC cannot be invoked where a specific provision is available in the CPC. The plaintiff could have filed an application for review under the provisions of Order 47 CPC or could have challenged the order date 25.2.2015 by way of writ petition at the relevant point of time. He has filed an application under section 151 CPC on the basis of the judgment passed by this Court therefore, he has adopted wrong procedure of law. The order date 25.2.2015 has attained finality and the same cannot be challenged by way of amendment in this petition. The said order was passed three years back and since last three years, there is no progress in the civil suit hence, no interference is called for. 7. In the case of Durgesh Sharma v. Jayshree, reported in (2008)9 SCC 648 in para 56 it has been held as under:- 56 We are unable to agree with the view that in such cases, inherent powers may be exercised under section 151 of the Code as held by the High Court of Punjab and Haryana in SBI. It is settled law that inherent powers may be exercised in those cases, where there is no express provision in the Code. The said power cannot be exercised in contravention or in conflict of or ignoring express and specific provisions of law. Since the law relating to transfer is contained in sections 22 to 25 of the Code, and they are exhaustive in nature, section 151 has no application. Even that contention, therefore, cannot take the case of the respondent wife further. In the case of Shipping Corporation of India Ltd. v. Machado Brothers and others, reported in (2004)11 Supreme Court Cases 168 in para 19 and 20 it has been held as under : 19. Even that contention, therefore, cannot take the case of the respondent wife further. In the case of Shipping Corporation of India Ltd. v. Machado Brothers and others, reported in (2004)11 Supreme Court Cases 168 in para 19 and 20 it has been held as under : 19. Coming to the maintainability of IA No. 20651 of 2001, the learned counsel for the appellant in support of his contention that an application under section 151 CPC for the dismissal of the suit on the ground of same having become infructuous was maintainable, has relied on a number of judgments. In Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava while discussing the scope of section 151 CPC this Court after considering various previous judgments on the point held : (AIR p. 1902, para 5) "The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of section 151 of the Code, they do not control the undoubted power of the Court conferred under section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court." 8. From the above, it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under section 151 of the Code, the Courts have all the necessary powers under section 151 CPC to make a suitable order to prevent the abuse of the process of Court. Therefore, the Court exercising the power under section 151 CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application. 9. Therefore, the Court exercising the power under section 151 CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application. 9. The Apex Court in the case of Jai Singh v. Municipal Corporation of Delhi [ (2010) 9 SCC 385 ], has explained the nature and scope of writ petition under Article 227 of the Constitution of India and held as under : “The High Court, under Article 227 of the Constitution of India, has the jurisdiction to ensure that all subordinate Courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the wellknown adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a “bull in a china shop”, to correct all errors of judgment of a Court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.” 10. The learned trial Court has rightly dismissed the application. I do not find any substance in the writ petition. Hence, the same is, hereby, dismissed.