Vanlalchami Bawihtlung v. Lalngaihawmi, D/o. Chalthangi (L)
2022-02-03
MARLI VANKUNG
body2022
DigiLaw.ai
JUDGMENT : Both the parties are represented by their learned counsels. Heard the submissions made by Mr. Vanlalnghaka, learned counsel for the applicant/appellant and Mr. B. Lalramenga learned counsel for the opposite party. 2. The applicant has submitted this application for to adding “read with Section 151 CPC 1908” to the cause title in FAO No.1/2019. First Appeal Order was filed under Order 41 Rule 1 CPC praying for setting aside and quashing the Order dt.17.05.2019 passed by the Ld. Additional District & Sessions Judge-III in CMA No.299 of 2018, A/o RFA No.17 of 2018 wherein the Learned lower Court had condoned the delay of 3449 days. 3. Mr. Vanlalnghaka, learned counsel for the applicant/appellant has submitted that due to the haste in submission of the FAO No. 1/2019, he had mistakenly not added “read with section 151 CPC to section 41 Order 1 CPC in the cause title in FAO No.1/2019. That in allowing the addition of “read with section 151 CPC”, the court may invoke its inherent powers under section 151 C.P.C and admit the First Appeal Order and set aside the impugned order dated 17.05.2019 wherein the lower court had wrongfully condoned a delay of as many as 3449 days. That in the interest of equity and justice the court has the inherent power to convert an revision petition to an appeal and vice versa. He has relied on the Apex Courts decisions in Ram Prakash Agarwal and Another Vs. Gopi Krishan (dead through Lrs.) and Others reported in (2013) 11 SCC 296 para 19, Nawab Shaqafath Ali Khan v. Nawab Imdad Jah Bahadur 162 (2009) 5 SCC. 4. Mr. B. Lalramenga, learned counsel for the opposite party has on the other hand argued that there is no ground to amend the cause title of the connected Memo of Appeal filed by the applicant. In her application, the applicant quoted Order 41 Rule 1 CPC as the provision for filing the connected Appeal. However, the impugned Order dated 17.05.2019 which is not a decree and hence, it cannot be assailed under Order 41 Rule 1, CPC. Besides, the said Order dated 17.05.2019 is also not an appealable Order under section 104 CPC or under Order 43 CPC.
However, the impugned Order dated 17.05.2019 which is not a decree and hence, it cannot be assailed under Order 41 Rule 1, CPC. Besides, the said Order dated 17.05.2019 is also not an appealable Order under section 104 CPC or under Order 43 CPC. Moreover, there is no reason as to why the applicant should be allowed to amend the cause title of her Memorandum of Appeal by adding section 151 CPC inasmuch as the inherent power of the court under section 151 CPC cannot be invoked by the applicant to make good the irregularity/illegality in filing the connected Appeal. That, section 151 CPC is intended to apply where the Civil Procedure Code does not cover any particular procedural aspect and it is not a provision of law conferring power to grant any kind of substantive relief. The learned counsel has relied on the judgements of the Apex in State of Utter Pradesh & Others Vs. Roshan Singh (dead) by Lrs. & Others reported in (2008) 2 SCC 488 para 8, Ram Prakash Agarwal and Another Vs. Gopi Krishan (dead through Lrs.) and Others reported in (2013) 11 SCC 296 para 19, Vinod Seth Vs. Devinder Bajaj and Another reported in (2010) 8 SCC 1 para 30”. 5. On consideration of the submissions of both the parties, the maintainability of FAO No. 1 of 2021 in its present form and style, need to be considered along with I.A (Civil ) No. 116 of 2019. 6. The FAO No. 1 of 2021 is against the impugned order dated 17.05.2019 in CMA No. 229 of 2018 A/o RFA No.17 of 2018. The order dated 17.05.2019 passed by the learned lower court is an order condoning a delay of 3449 days under section 5 of the Limitation Act. This impugned order dated 17.05.2019 passed in CMA No.229 arises out of the main appeal in RFA 17 of 2018 which has not reached its finality and therefore the impugned order dated 17.05.2019 cannot be deemed to be a judgment or decree as envisaged under order 41 rule 1 of C.P.C. 7.
This impugned order dated 17.05.2019 passed in CMA No.229 arises out of the main appeal in RFA 17 of 2018 which has not reached its finality and therefore the impugned order dated 17.05.2019 cannot be deemed to be a judgment or decree as envisaged under order 41 rule 1 of C.P.C. 7. If the applicant is aggrieved by the order dated 17.05.2019 in CMA No.229 of 2018 A/o RFA No.17 of 2018 the appropriate remedy would be to approach this court by invoking its revisional powers which could be read with section 151 C.P.C. This court is of the considered view that seeking to remedy the inappropriate procedural law submitted under Order 41 rule 1 CPC by invoking section 151 CPC is unsustainable more so when there is an alternative procedural law provided under the Civil Procedure Code. In State of Utter Pradesh & Others Vs. Roshan Singh (dead) by Lrs. & Others (Supra) the Apex Court has held that : “The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the Code of Civil Procedure. Section 151 CPC will not be available when there is alternative remedy and the same is accepted to be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the court are in addition to the powers specifically conferred on it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the court power of making such orders as may be necessary for the ends of justice of the court. Section 151 CPC cannot be invoked when there is express provision ever under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions.” 8. In view of the above observations, granting leave to amend the cause in FAO No. 1 of 2019 to add “read with section 151 CPC” to order 41 rule1 CPC would be a futile exercise when the FAO No. 1 of 2019 itself is submitted under order 41 rule 1 C.P.C which is found to suffer from procedural defect.
In view of the above observations, granting leave to amend the cause in FAO No. 1 of 2019 to add “read with section 151 CPC” to order 41 rule1 CPC would be a futile exercise when the FAO No. 1 of 2019 itself is submitted under order 41 rule 1 C.P.C which is found to suffer from procedural defect. Thus this court is constrained to dismiss the I.A (C) No. 116/2019 with the FAO No. 1 of 2019. However, in the interest of justice and equity, liberty is granted to the appellant to file the matter afresh under the appropriate procedural law available. 9. Accordingly I.A (C) No.116/2019 with the FAO No. 1 of 2019 stands disposed.