B.D. Agarwal, J.
1. The revision petitioner is assailing the order dated 31.8.2005 passed by the learned District Judge, Manipur West, Imphal in Original Review Petition No. 31 of 2005 restoring the original Probate Case No. 23 of 2003 vacating the order dated 5.6.2004, whereby the probate case was dropped on withdrawal.
2. I have heard oral arguments made by Shri H.S. Paonam, learned Counsel assisted by Ms. Harichhaya Devi, advocate for the petitioners and that of Shri H.NK Singh, learned senior counsel assisted by Mr. Genandro Hijam, advocate for the respondent No. 1. I have also perused the impugned order and the records.
3. Brief facts leading rise to filing of this revision application are that the respondent No. 1. filed an application under Section 276 of Indian Succession Act, 1925 in the Court of District Judge praying for issuance of a probate certificate of the estate of late Keisham Kunjo Singh, which was bequeath by the testator under Will dated 24.2.1999. The said application was registered as Original Probate Suit No. 46 of 2002. The said suit was withdrawn on 30.4.2003 on the ground that certain statutory information, including the value of the bequeathed property, were not reflected in the probate application.
4. Thereafter, the second probate application was filed on 16.6.2003 which was registered as Original (Probate) Suit No. 23 of 2003. This application was also withdrawn by the learned Counsel for the probate petitioner on 5.6.2004. The said order of withdrawal is extracted below:
The petitioner by counsel present. The respondents in person appear.
The learned Counsel for the petitioner has orally prayed for allowing him to withdraw the case with the submission that the probate of the will in question is no longer required in view of the decision of the Supreme Court reported in : [2001]2SCR43 Clarence Pais and Ors. v. Union of India. The petitioner is allowed to withdraw the case.
Announced.
5. Within a month of withdrawal of the probate case, the respondent No. 1. submitted an application under Section 114 read with Section 151 of the Code of Civil Procedure ('CPC in brief) seeking review of the order dated 5.6.2004 and allowing the respondents to continue with the probate suit. This petition was registered as Review Petition No. 31 of 2005. Upon hearing both parties, the learned District Judge has passed the impugned order restoring the probate suit. This order is under challenge.
6. Shri Poonam, learned Counsel for the petitioners submitted that the impugned order suffers from jurisdictional impropriety and as such, it deserves to be interfered with by this Court in exercise of powers conferred under Section 115 of the CPC. For better appreciation the relevant portions of Section 115 CPC are reproduced below:
115 Revision. - (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fits;
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(2) *** *** ***
(3) *** *** ***
7. The learned Counsel for the petitioners also submitted that the counsel engaged by the probate petitioner/respondent had acted within his powers and as such, the probate petitioner ought to have been estopped by the trial court from getting the suit restored on an unsubstantiated plea that the counsel was not authorized to withdraw the suit. According to the learned Counsel, the probate petitioner had withdrawn his earlier suit on 30.4.2003 and second suit was also withdrawn through counsel on 5.6.2004 and the same person has been permitted to continue with the suit for the third time. According to the learned Counsel, before doing so, the learned District Judge ought to have examined the counsel who was representing the probate petitioner in O.S. No. 23 of 2003 to ascertain the correctness of the allegation that he had obtained the suit without consent or consultation with the probate petitioner. Since the court below did not do this, the impugned order suffers from material irregularity covered by Clause (c) of Sub-section (1) of Section 115 CPC.
8. Shri Poonam, learned Counsel for the petitioners also cited the judgment of the Hon'ble Supreme Court rendered in the case of Uday Shankar Triya v. Ram Kalewar Prasad Singh and Anr. : AIR2006SC269 ; Delhi Development Authority and Anr. v. UEE Electrical Engineering (P) Ltd. and Anr. : AIR2004SC2100 , Sarjuga Transport Service v. State Transport Appellate Tribunal, UP Gwalior and Ors. : [1987]1SCR200 to buttress his point that the powers of judicial review should be exercised sparingly and only in case of substantial illegality, irrationality or procedural impropriety in the order.
9. Per contra, Shri H.N.K. Singh learned senior counsel representing the respondent No. 1. submitted that this Court should be slow and circumspect in interfering with any order passed by the trial court within its jurisdiction. Learned Sr. counsel repeatedly emphasized that powers conferred under Section 115 CPC are not co-extensive to that of an appellate power and as such, this Court has no authority to substitute its own opinion, vacating or modifying the view taken by the trial court. Precisely, it was contended that the revisional jurisdiction should be exercised only if the sub-ordinate court commits jurisdictional error sans any other ground. To substantiate his submission, the learned Counsel has cited hosts of authorities from the Apex Court as well as from different High Courts.
10. Learned senior counsel for the respondent No. 1 cited the judgments of Apex Court given in the case of Bhojraj Kunwarji Oil Mill & Ginning Factory and Anr. v. Yograjsinha Shankersinha Parihar and Ors. : AIR1984SC1894 . In this case, the Apex Court has held that exercise of powers under Section 115 CPC is not permitted only the ground that a different view is plausible in the impugned order. The next case was rendered in the case D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh and Ors. : [1970]2SCR368 . In this case, their Lordships have criticized irrational use of Section 115 CPC in the following terms:
8. The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High court to correct errors of fact, however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words 'illegality' and 'with materials irregularity' as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its powers under Section 115 of the Code. Merely because the High Court would have inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter, the High Court treated the revision virtually as if it was an appeal.
11. The next authority cited from Gujarat High Court was in the case of Hussens Hasanali Pulavwala v. Sabhirbhai Hasanali Pulavwala and Ors. : AIR1981Guj190 . In this case also, the general opinion of restricted and limited powers of revisional court has been reiterated. Another judgment from Delhi High Court, Devi Dayal Textile Co. and ors. v. Nand Lal : AIR1977Delhi7 , was also pressed into service. In this case, Delhi High Court has held that it is the discretion of the court to correct its mistake and recall its own order suo-moto under inherent powers conferred under Section 151 CPC and such orders are not justiceable under Section 115. Learned senior counsel for the respondent No. 1 has also cited the judgment of Hon'ble Supreme Court rendered in the case of Keisham Devo. v. Radha Krishana : [1953]4SCR136 . In this case also, the Apex Court has approved the action of the trial court which had restored the execution case suo-moto on the ground that the dismissal was wrong since it was done without informing the decree holders. The Apex Court has held that such an order under Section 151 CPC is simpliciter not appealable. However, the High Court set aside the trial court's order of restoration of execution case. Reversing this order of Section 115 CPC, the Apex Court has held that the trial judge neither acted in excess of his jurisdiction nor had he assumed any jurisdiction that he did not possess. The Apex Court further held that it could not be said that by restoring the execution case the judge had acted with any material irregularity or committed any breach of the procedure. In this way, the law laid down by the Apex Court more than five decades ago regarding powers of courts under Section 151 CPC and limited powers of interference of the High court under Section 115 CPC still hold the field.
12. Apparently and admittedly, the impugned order of restoration of the probate suit has been passed in exercise of powers conferred under Section 151 CPC. It is difficult to measure the length and breadth of the inherent powers given to the courts, irrespective of its status under the law. The inherent powers given under Section 151 CPC are plenary in nature and are not subject to any control by other provisions in the Code. The inherent power bestowed under Section 151 CPC is in addition to the powers specifically conferred in the Code and the courts are free to exercise this power bona fide and in the interest of justice. The only limitation to exercise this inherent power is that such power should not be in-conflict with other provisions of law. To put it differently, the inherent powers should not be exercised if the CPC provides alternative remedy for the situation.
13. Coming to the case at hand, it is an admitted position that the order dated 5.6.2004, allowing withdrawal of the case, was not an appealable one. Besides this, the suit was closed only on the oral request of the learned Counsel, which was based on a purported ratio of the Supreme Court judgment. In other words, the suit was not abandoned on merit but it was on the basis of a confused reading of a judgment. Hence, learned District Judge has held that the case has not been decided on merit and it was closed due to bona fide mistake of the counsel on misconception of a judgment. Hence, the District Judge has allowed the restoration of the suit on the ground that if the probate petitioner is not permitted to plead his case on merit, it may cause irreparable injury.
14. I agree with the view taken by the lower court. In my considered opinion also, the situation would have been different had the suit been abandoned on a written application by the probate petitioner himself, more particularly on facts. In the present case, neither the party himself nor his lawyer filed any written application. I need not repeat the extensive powers of a court to pass appropriate orders under Section 151 CPC to render complete and substantive justice. Such order cannot be interfered with by the High Court only on the ground that a different view was possible and a different nature of order could have been passed by the court. In my opinion, while comparing the limits of power conferred under Section 115 CPC vis-a-vis Section 151 of the CPC, the latter will grossly prevail over the former.
15. The authorities cited on behalf of the petitioners are not directly applicable in the present situation. In the case of Uday Shankar Triya (supra), the Apex Court was confronted with a defective vakalatnama. Despite such procedural irregularity, the appeal, with a defective vakalatnama, was allowed to be retained considering it to be a curable defect. The Apex Court has observed that such procedural defect should never be made a tool to deny justice or perpetuate injustice, except under certain statutory exceptions. However, in the case before me, the pertinent issue is to examine whether the restoration order suffers from any jurisdictional error, which I do not find.
16. Similarly the judgment of Delhi Development Authority (supra) is not directly applicable in the present case. In the said ruling, the Apex Court was reviewing the administrative action in relation to grant of a contract. The Apex Court has held that such administrative actions are subject to judicial review if they suffer from illegality, irregularity or procedural impropriety. The above judicial principle of review has been culled out in absence of any codified law in the field of administrative action. However, now I am dealing with a situation wherein specific parameters of revisional power have been set out under Section 115 CPC.
17. In the case of Sarjuga Transport Service (supra), cited on behalf of the petitioners, the Hon'ble Supreme Court was virtually examining a situation in which abandonment of a suit under Order 23 CPC would operate as res-judicata. In the present case, the respondent has neither filed any fresh suit without leave of the court nor sought for any permission for filing a fresh suit after its abandonment. Hence, the above authority is also not applicable in the present situation.
18. Shri Paonam, learned Counsel for the petitioners submitted that withdrawal of the suit by the counsel amounts to abandonment of the suit by the party himself and as such, the court below committed manifest error in restoring the suit, which amounts to its re-institution. Learned Counsel further submitted that if this practice is ignored/condoned, every party would take the benefit of the concessions given by the counsels in the court, which will not be in the interest of justice.
19. On the other hand, Shri H.N.K Singh, learned senior counsel for the respondent No. 1 submitted that the counsels are not permitted to abandon a suit without express consent of their clients. To supplement his submission, the learned senior counsel has referred to the judgment of Madras High Court given in the case of Ramaswami Pillai v. Badra Nayakar and Ors. AIR 1920 Madras 232.
20. In the aforesaid case, Madras High Court has held that a lawyer must be given specific power to withdraw the suit and such power cannot be implied from the general words authorizing the vakil to compromise.
21. I have certain reservations about the proposition of law laid down by the Madras High Court. It might have been taken under certain special circumstances because the suit was withdrawn in the midst of compromise between the parties. However, the view that specific power for withdrawal of a suit is necessary is not comprehendible. In the case of Sarjuga Transport Service (supra), the Hont)le Supreme Court has itself admitted the fact that very often learned counsels withdraw writ petitions without seeking permission of the courts to institute fresh writ petition. The Apex Court has held that the principle laid down under Order 23 CPC prohibiting institution of fresh suit under certain situations are also applicable to applications filed under Article 226 /227 of the Constitution of India. Hence, it is apparent that the counsels are not required to file special authority for withdrawing/abandoning their suits.
22. The method and procedure of appointment of pleaders have been laid down under Order III Rule 4 of CPC. Rule 4 nowhere mandates that separate authorization is required for withdrawal of a suit. The relevant portions of Rule 4 are reproduced below:
4 Appointment of pleader. - (1) No pleader shall act for any person in any Court, unless he has been appointment for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall, for the purpose of Sub-rule (1), be deemed to be in force until determined with the leave of the Court, or until the client or the pleader dies, or until all proceedings in the suit ended so far as regards the client.
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23. I have also consulted one such vakalatnama of the probate petitioner filed in the court of District Judge. In such vakalatnama, the petitioner had authorized his lawyers to conduct, to prosecute, to defend him in all the proceedings arising out of the suit. Besides this, the executant further agreed to ratify all acts and things done by his advocates lawfully.
24. In other words, the executant nowhere reserved/restricted the rights of his counsel for withdrawing the suit. In fact, in all the vakalatnamas, ordinarily filed in different courts in India, contain identical authority. Hence, I hold that withdrawal of the suit by the counsel was within his ambit and authority and the probate petitioner could not have been allowed to make a volte-face to contend that the abandonment of the suit was illegal since it was without his consent. Despite such illegal somersault by the petitioner I am not persuaded to interfere in the impugned order of restoration of the suit, under its peculiar circumstances narrated in this judgment. It has already been noted earlier that this is not permissible under Section 115 CPC, so long there is no jurisdictional error. For the same reason, I am also not inclined to interfere with the impugned order solely on the ground that the review prayer was allowed without examining the counsel, who had withdrawn the suit. In my opinion, examination of the counsel to elicit the fact of consent will not change the legal position.
25. For the reasons set out hereinabove I have come to the conclusion that the impugned order does not suffer from any jurisdictional error or illegality. Consequently, the revision application stands dismissed.
26. Send down lower court records with a copy of this Judgment.
27. Both parties are directed to appear in the court of District Judge, Manipur West on 11.01.2007 and receive further orders.