Judgment:
(Prayer: This WP filed under Articles 227 of the Constitution of India praying to call for the records in Misc. Petition No.510/2013 on the file of the Hon'ble XXXIX Additional City Civil and Sessions Judge, Bangalore and etc.)
1. The present petition filed under Article 227 of the Constitution of India is directed against the order dated 12.1.2015 passed in Misc.510/13, a petition under Section 151, C.P.C.
2. The petitioner herein was the plaintiff of an original suit in O.S.6870/09, a suit filed for the relief of declaration to the effect that she is the legally wedded wife of Late Krishnachari who was working under the 1st respondent's farm at Hiriyur. The 2nd respondent herein is also claiming to be the wife of said Krishnachari. In view of her claim, the plaintiff was forced to file a declaration to the effect that she is the legally wedded wife of Krishnachari.
3. The marriage of the petitioner with Krishnachari, according to the plaintiff, was solemnized on 4.9.1972 as per Hindu customs and he had joined service prior to his marriage with the plaintiff. Both of them lived together for some time. Later on, Krishnachari is stated to have deserted her. Therefore she had filed a suit seeking maintenance in O.S.3/96 and the same was decreed, directing Krishnachari to pay Rs.1,000/- p.m. as maintenance. Since he did not pay the same, she had to file execution petition to recover the same.
4. Consequent upon the death of Krishnachari on 17.12.2008, she chose to file a suit against the employer of Krishnachari and Smt. Nagarathnamma for the relief of declaration and for the consequential relief of mandatory injunction to pay her all the monetary benefits arising out of the death of Krishnachari.
5. During the pendency of the suit, she filed a memo with a request to dismiss the suit with liberty to file a fresh suit on the same cause of action. The said memo came to be accepted by the court on 4.6.2012 and the suit was dismissed as not pressed and the original documents were returned to her.
6. On the basis of dismissal of the suit, Nagarathnamma who was the 2nd suit, being a nominee, approached the 1st defendant in the said respondent-defendant and got all pensionary benefits. When the plaintiff approached the employer with a request to settle all pensionary benefits in her favour, an endorsement was given to her stating that she was not entitled to any monetary benefits in view of the dismissal of her suit in O.S.6870/09. The endorsement of the 2nd respondent-defendant issued to the plaintiff is dated 22.7.2013.
7. Hence the petitioner chose to file an application under Section 151, C.P.C. in O.S.6870/09 requesting the court to recall the order of dismissal of her suit on the basis of the memo filed by her and to revive the said suit. The reason assigned by her is that she had got the suit dismissed essentially on the ground that she had not contemplated about the serious consequences of such dismissal. It is further stated that assurances had been given to her that pension would be settled in her favour if she got dismissed the suit.
8. The said application came to be registered as Misc.510/13. Objections came to be filed to the said application and an enquiry was held in which the petitioner is examined as PW-1 and three exhibits have been got marked on her behalf. Ultimately the learned judge has dismissed the said application vide considered order dated 12.1.2015.
9. Several grounds have been urged in this petition filed under Article 227 of the Constitution of India as set out in the memorandum of petition. The 1st respondent has filed objections.
10. Learned counsel for the 2nd respondent-Nagarathnamma has vehemently argued that the present petition under Article 227 of the Constitution of India is not at all maintainable since the impugned order, if set aside, would virtually revive the suit itself and therefore, a civil revision petition under Section 115, C.P.C. alone is maintainable. It is further argued that the petitioner got dismissed the suit on her own and nobody had asked her to get it dismissed. It is further argued that when the suit for declaration is got dismissed without obtaining leave to file a fresh suit on the same cause of action, the same cannot be revived. It is further argued that the alleged assurance given by the defendants to the plaintiff to get her suit dismissed and then only pensionary benefits would be settled in her favour, is a cooked up theory and she has not been able to substantiate the same in any manner. It is further argued that nowhere in the memo filed by her, such a reference is forthcoming.
11. Learned counsel for the petitioner, Ms.Maithreyi Krishnan has relied on a decision of the Hon'ble Supreme Court rendered in the case of JET PLYWOOD PRIVATE LIMITED and ANOTHER .v. MADHUKAR NOWLAKHA reported in AIR 2006 SC 1260 and another Division Bench decision of the High Court of Calcutta rendered in the case of RAMESWAR SARKAR .v. STATE OF WEST BENGAL AND OTHERS reported in AIR 1986 Cal 19 which is relied upon by the Hon'ble apex court in the case of JET PLYWOOD (P) LTD. It is argued that the inherent power of the civil court under Section 151, C.P.C. is wide enough to undo the injustice done to a lady like this and technicalities should not come in the way of doing substantial justice between the parties.
12. After going through the records and hearing the learned counsel for the parties, the following points arise for my consideration:
(1) Whether the petition under Article 227 is maintainable in the present case?
(2) Whether this is a fit case to invoke the inherent power vested in the civil court under Section 151, C.P.C. to set aside the dismissal of the suit based on the memo dated 4.6.2012?
REASONS
13. Point no.(1): The suit had been filed by this petitioner as plaintiff in O.S.6870/09 before the City Civil Judge, Bengaluru, against the administrative officer, University of Agricultural Sciences, GKVK Campus, Bengaluru, and Smt. Nagarathnamma @ Nagavenamma who is also claiming to be the legally wedded wife of Krishnachari on the basis of her name being shown as a nominee in the service register.
14. Following are the reliefs sought for by her in the suit in O.S.6870/09 consequent upon the death of Krishnachari:
WHEREFORE the plaintiff most respectfully pray that this Hon'ble Court be pleased to pass judgment and order against the Defendants as follows:
a) to declare that plaintiff is the Legal Wedded wife of Late Krishnachari
b) Not to disburse the monetary benefits like pension, Gratuity, Insurance etc. Payable by the employer of the deceased Krishnachari to the Defendant No.2, who is falsely claimed wife of Late Krishnachari;
c) To grant the pensionery benefits to the Plaintiff and such other relief/s as the Hon'ble Court may deem fit to grant under the facts and circumstances of the case;
d) To award the costs to the Plaintiff, in the interest of justice and equity.
In the said suit, the 2nd defendant had filed a detailed written statement on 15.10.2010. Plaintiff had filed an affidavit in lieu of examination-in-chief on 12.4.2012 and she had examined herself further. On 4.6.2012 she chose to file a memo before the court requesting the court to dismiss the suit as not pressed with a liberty to enable her to file a fresh suit and to return the original papers.
15. The memo filed on 4.6.2012 on the basis of which the suit came to be dismissed is as follows:
MEMO
The Plaintiff humbly submits that this Hon'ble Court the plaintiff is not intend to prosecute the above case and suit of the plaintiff may be dismissed as not pressed liberty to may be given to plaintiff to file fresh suit and direct the office to return the originals in the interest of Justice.
Sd/-
Plaintiff
Bangalore
Dated: 4.6.2012
Following is the order passed on 22.7.2013 based on the memo dated 4.6.2012:
Plaintiff present. HRS files a memo. Hence the suit of the plaintiff is hereby dismissed as not pressed. Return the original after getting certified copy signed.'
It is this order that the petitioner wanted to get it set aside by filing an application under Section 151, C.P.C. in the very suit in O.S.6870/09.
16. As per the facts in the case of JET PLYWOOD (supra), Madhukar Nowlakha, the respondent therein, had filed an application to dismiss the suit as withdrawn. On 11.7.2004, the learned judge had allowed the said application, but liberty had not been granted to file a fresh suit on the same cause of action. Within a month thereafter, i.e. on 23.8.2004, Madhukar Nowlakha, plaintiff in Title Suit No.32/03 filed an application for recalling the order by which the suit had been dismissed as withdrawn. It was his case that he was misrepresented in making such application and on account of such misrepresentation made by Biswarup Bannerjee and other co-owners that they would sell the property to him, he had withdrawn the suit.
17. The learned Civil Judge (Senior Divn.) of Aliporehad rejected the said application filed by Madhukar Nowlakha. Thereafter he filed a second title suit in Title Suit No.87/04 and it was pending. His prayer for interim injunction in Title Suit No.87/04 had been rejected. On 23.12.2004, Madhukar filed an application before the High Court of Calcutta in C.O.3982/04 challenging the trial court's order dated 24.9.2004 refusing to recall its earlier order dated 11.2.2004. The said petition filed under Article 227 of the Constitution of India had been admitted.
18. On 4.2.2005 the learned single Judge of the Calcutta High Court allowed the petition, C.O.3982/04 and restored Title Suit No.32/02 for trial before the Civil Judge (Senior Divn.) at Alipore. This was called in question before the Hon'ble apex court by Banerjee and other co-owners mainly on the ground that their advocate could not attend the hearing on 4.2.2005 and therefore they had filed the application in CAN. No.1999/05 before the learned single Judge to recall the order dated 4.2.2005. The said application was dismissed by order dated 14.3.2005 after contest and thus the order restoring the suit on 4.2.2005 was reaffirmed.
19. As a result of the same, two Special Leave Petitions came to be filed before the Hon'ble apex court, one in regard to the restoration of title suit by order dated 4.2.2005 and another questioning the order dated 14.3.2005 rejecting the application for recalling the order dated 4.2.2005. Both the S.L.Ps. were taken up together for common hearing. The question that was framed by the Hon'ble apex court while considering the S.L.Ps. was as follows:
Whether the learned single Judge of the High Court of Calcutta acted within his jurisdiction in restoring the suit of the 1st respondent-plaintiff despite leave neither having been asked for nor granted, but specifically refused?
It had been contended before the Hon'ble apex court on behalf of JET PLYWOOD that in the absence of any prayer for leave to file a fresh suit and specific prohibition being included in Order XXIII Rule 1, C.P.C., permitting withdrawal of the application filed to get the suit withdrawn, was impermissible, incorrect and improper and therefore, there was no scope for the trial court or the High Court to allow the application for withdrawal of the suit by order dated 11.7.2004.
20. On the basis of the submission made by the learned counsel representing the respondent therein, it was relevant for the Supreme Court to give a finding as to whether in the circumstances, such a power should have been exercised or not under Section 151, C.P.C. Since the learned judge of the trial court did not choose to exercise the power vested in the court under Section 151, C.P.C., the High Court stepped in, in exercise of its powers under Article 227 of the Constitution of India in order to restore the suit filed by the 1st respondent therein.
21. In fact reliance has been placed on a Division Bench decision rendered by the Hon'ble High Court of Calcutta in the case of RAMESWAR SARKAR (supra) wherein it has been reiterated that the civil court has inherent power under Section 151, C.P.C. to allow withdrawal of a suit, after setting aside the order dismissing the suit for non-prosecution. It is further reiterated that Order XXIII Rule 1, C.P.C. provides for withdrawal with or without liberty to file a fresh suit. It is further stated that Section 151, C.P.C. is wide enough and the court is not powerless to allow withdrawal of an application for withdrawal of a suit in exercise of inherent power, if there are justifiable reasons for allowing withdrawal of application for withdrawal of suit.
22. As per the facts of the case in RAMESWAR SARKAR, a revision petition under Section 115, C.P.C. before the High Court of Calcutta had been filed by Rameswar Sarkar against the State of West Bengal. Section 115, C.P.C. had not yet been amended providing the embargo to question the orders passed on interlocutory applications, and such an embargo is found in the proviso which has come into effect from 1.7.2002 in Section 115, C.P.C.
23. On a combined reading of the decisions in the case of JET PLYWOOD and RAMESWAR SARKAR (both supra), it is abundantly clear that any order passed under Section 151, C.P.C. is amenable to be questioned by filing a petition under Article 227 of the Constitution of India, though ultimately a suit would get revived on a petition under Article 227 being allowed. Even otherwise, as per the events that took place in the case of JET PLYWOOD, the Code of Civil Procedure had already been amended and it was in force from 1.7.2002 and the dates which are forthcoming in that case are subsequent to 1.7.2002. The petition was filed under Article 227 of the Constitution of India since the trial court had not invoked power under Section 151, C.P.C. The High Court of Calcutta did exercise inherent power under Section 151, C.P.C. on the ground that the trial court had not exercised the jurisdiction vested in it. Accordingly the petition filed under Article 227 of the Constitution of India is justified.
24. In the case of GIRIJA VALLABHAN .v. J.B.J.PLANTATION PVT. LTD. and OTHERS ([2012] 2 Kar.L.J. 309), the High Court of Kerala has held that In both the revision and also a challenge under Article 227 of the Constitution of India, what is involved is exercise of supervisory jurisdiction of the High Court. A remedy by way of revision, which is not linked with the substantive right of the party, is available to impeach the order of the subordinate court by itself would not debar the aggrieved person from invoking the constitutional remedy under Article 226/227 in cases where a writ of certiorari or the exercise of supervisory jurisdiction to keep the subordinate court within the bounds of its authority is made out.'
25. In the present case, in order to pursue her substantive right in the suit filed by her, the plaintiff wanted to invoke the inherent power in terms of Section 151, C.P.C. and set aside the order of dismissal of the suit made on the memo filed by her. Accordingly point no.(1) is, therefore, answered in the affirmative.
26. Point no.(2): As could be seen from the case of JET PLYWOOD, the plaintiff therein had not sought any prayer to file a fresh suit on the same cause of action. The petition had been dismissed without granting permission to file a fresh suit on the same cause of action. Of course the contention of the plaintiff therein that he had been assured to give him necessary relief if he withdrew the suit, had been emphatically denied. Even in the present case, the memo filed by the plaintiff does not make any reference about the alleged assurance given by the defendants to her to settle the pensionary benefits if she withdrew the suit. In the present case also, no permission is accorded on the same cause of action. But that does not, however, mean that by passing such order, the court is divested of its inherent power to recall the said order which fact is also evident from the order itself which indicates that the court did not find any scope to exercise its inherent power vested under Section 151, C.P.C. for recalling the order of dismissal passed by it earlier.
27. The act of refusing to recall the order is one of the court not exercising jurisdiction vested in it. It is not a question of lack of jurisdiction of the trial court, but a conscious decision of the court not to exercise such jurisdiction vested in it under Section 151, C.P.C. in favour of the plaintiff. The facts narrated in paragraph 23 of the judgment rendered in the case of JET PLYWOOD (supra) is aptly applicable to the present case and it is extracted below:
23. From the order of the learned Civil Judge (Senior Division) 9th Court of Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action which allowing the Plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find recalling the order passed by earlier. In the circumstances set out in the order of 24th September 2004, the learned Trial Court felt that no case had been made out to recall the order which had been made at the instance of the Plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the Plaintiff.
The apex court, while dealing with the case, has relied on its earlier decision rendered in the case of MANOHARLAL CHOPRA .V. RAJ BAHADUR RAO RAJA SETH HIRALAL reported in AIR 1962 SC 527, wherein it is held as follows:
It is well settled that the provisions of the Code are not exhaustive for the simple reason that the Legislature is incapable of contemplating all possible circumstances which may arise in future litigation and consequently for providing procedure for suits.'
28. What is held in the case of RAMESWAR SARKAR is that when the plaintiff withdraws a suit under mistake, the court would not be powerless to set aside the order permitting withdrawal of the suit. In the present case, materials have been placed on record to show that Krishnachari had filed a petition under Section 13(1)(b) of the Hindu Marriage Act seeking divorce from his wife, i.e. the plaintiff on the ground of desertion and that petition came to be dismissed after contest. She had executed the decree granted in her favour for recovery of maintenance at the rate of Rs.1,000/- p.m. Soon after dismissal of her suit consequent upon the memo filed on her behalf, the 2nd defendant-Smt. Nagarathnamma got all pensionary benefits on the basis of her claim as a nominee of Krishnachari. Her nomination does not confer the status as the wife of the deceased, unless the relationship of husband and wife is proved to the hilt.
29. Suffice to state that in the present case, prima facie materials are placed by the plaintiff to show that Late Krishnachari had treated her as his wife and had filed a case for divorce on the ground of desertion and had also suffered a decree for maintenance from the competent civil court. She had even executed the decree granted for maintenance and the some amount had been paid to her in the executing court by her husband. Apart from this, the petitioner-plaintiff has stepped into the witness box to demonstrate as to why she had to file the application for recalling the order of dismissal.
30. It is true that the memo does not make any reference about the reasons for getting the suit dismissed. Taking into consideration the peculiar facts of the case, it can be said that the trial court has refused to exercise the jurisdiction vested in it in terms of Section 151, C.P.C. It cannot be considered as one of a conscious decisionto reject the prayer. What is held in the case of RAMESWAR SARKAR is that the court has jurisdiction to allow withdrawal of an application for withdrawal of a suit in exercise of the inherent power vested in it in terms of Section 151, C.P.C. and that must be based on justifiable reasons.
31. One cannot forget that the inherent power has not been conferred upon the court; it is a power inherent in the court by virtue of its duty to do justice to the parties before it, as held in the case of MANOHARLAL CHOPRA (supra).
32. Procedure is a handmaid of justice and that procedural law is always subservient to and is in aid to justice. Any interpretation, which eludes or frustrates the recipient of justice, is not to be followed. Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.The above observation has been made by the Hon'ble apex court in the case of R.N.JADI and BROTHERS and OTHERS .v. SUBHASHCHANDRA (AIR 2007 SC 2571). Further observation in paragraph 15 of the decision is relevant and it is extracted:
Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against, lest, the very means designed for the furtherance of justice be used to frustrate it.'
Accordingly point no.(2) is also answered in the affirmative and the petition will have to be allowed.
33. Accordingly, for the reasons stated above, the following order is passed:
ORDER
The petition is allowed. The impugned order dated 22.7.2013 passed in O.S.6870/09 is set aside by invoking the inherent power vested in the civil court under Section 151, C.P.C. The said suit is restored to its original position as it stood on the date of dismissal.
In view of the revival of the suit, parties shall appear before the trial court on 31st July 2015 without fail and the learned judge to dispose of the suit as early as possible, preferably within six months from 31st July 2015. Parties and learned counsel to co-operate with the trial court in disposal of the suit as expeditiously as possible.
Parties to bear their own costs.