w w w . L a w y e r S e r v i c e s . i n



M/s Terai Infrastructures Ltd. v/s M/s Robin Commercial Pvt. Ltd. & Others


Company & Directors' Information:- C K INFRASTRUCTURES LIMITED [Active] CIN = U70200DL1997PLC089706

Company & Directors' Information:- D B INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U04520MP2006PTC018493

Company & Directors' Information:- R S INFRASTRUCTURES LIMITED [Active] CIN = U45201PB1997PLC020316

Company & Directors' Information:- TERAI INFRASTRUCTURES LIMITED [Active] CIN = U45309WB2005PLC106062

Company & Directors' Information:- K R INFRASTRUCTURES LIMITED [Active] CIN = U73100TG1992PLC013995

Company & Directors' Information:- I M B INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70102DL2009PTC195079

Company & Directors' Information:- Y K M INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45202CH2006PTC029960

Company & Directors' Information:- R 3 INFRASTRUCTURES LIMITED [Active] CIN = U45400DL2014PLC268953

Company & Directors' Information:- P G M INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U01119AP2007PTC054326

Company & Directors' Information:- N H INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45209CH2010PTC032243

Company & Directors' Information:- Y D INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70102UP2009PTC037603

Company & Directors' Information:- C 4 INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45201MH2013PTC242843

Company & Directors' Information:- B S V R INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45209TG2009PTC064901

Company & Directors' Information:- V AND K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200TG2001PTC036581

Company & Directors' Information:- J L INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200TN2008PTC066965

Company & Directors' Information:- T & C INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U70102TG2008PTC060995

Company & Directors' Information:- U R C INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200TG2008PTC058894

Company & Directors' Information:- R V A INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70102UP2013PTC056289

Company & Directors' Information:- S R G INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74110DL2005PTC134967

Company & Directors' Information:- S R G INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70101DL2005PTC134967

Company & Directors' Information:- N. C. R. INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45400UP2008PTC034623

Company & Directors' Information:- P T INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U51909DL2007PTC159635

Company & Directors' Information:- S. L. INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45203PB2007PTC031300

Company & Directors' Information:- V C H INFRASTRUCTURES PRIVATE LIMITED [Under Process of Striking Off] CIN = U45203KL2011PTC028762

Company & Directors' Information:- P A INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45208TN2009PTC071929

Company & Directors' Information:- A E K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45309TN2009PTC071702

Company & Directors' Information:- K G N INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74200DL2007PTC167982

Company & Directors' Information:- M A M INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70109KA2012PTC062160

Company & Directors' Information:- P N INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45201OR2010PTC012647

Company & Directors' Information:- R S INFRASTRUCTURES INDIA PRIVATE LIMITED [Strike Off] CIN = U45206TN2013PTC091533

Company & Directors' Information:- J S K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200MH2005PTC156097

Company & Directors' Information:- S A INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45400WB2013PTC192691

Company & Directors' Information:- L & W INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200DL2008PTC182372

Company & Directors' Information:- K R R INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U70102TG2008PTC061194

Company & Directors' Information:- INFRASTRUCTURES PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200JH2007PTC012792

Company & Directors' Information:- S AND A INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45206UR2012PTC000345

Company & Directors' Information:- J & K INFRASTRUCTURES LIMITED [Active] CIN = U40101JK2009PLC003034

Company & Directors' Information:- V. J. S. INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035636

Company & Directors' Information:- K R M INFRASTRUCTURES (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45209TG2011PTC073850

Company & Directors' Information:- M D INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45201CH2001PTC024224

Company & Directors' Information:- V K INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45400UP2008PTC034415

Company & Directors' Information:- K Y INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45201DL2004PTC127815

Company & Directors' Information:- A K C INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45200KL2010PTC025716

Company & Directors' Information:- D N D INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45203PN2008PTC133243

Company & Directors' Information:- G V R INFRASTRUCTURES INDIA PRIVATE LIMITED [Strike Off] CIN = U45209AP2008PTC059504

Company & Directors' Information:- K & K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74120KA2006PTC040900

Company & Directors' Information:- A & G INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U31900PB2012PTC036358

Company & Directors' Information:- Y R INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45201RJ2015PTC047298

Company & Directors' Information:- U D INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45400MH2010PTC203382

Company & Directors' Information:- J W INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U74120MH2015PTC268554

Company & Directors' Information:- G AND G INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45200MH2004PTC147316

Company & Directors' Information:- A. N. Y. INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45206MH2013PTC243735

Company & Directors' Information:- J V S M S INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45200TG2010PTC070371

Company & Directors' Information:- K S V V INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45209TG2010PTC069359

Company & Directors' Information:- A V R INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45400DL2009PTC186399

Company & Directors' Information:- A P S INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U70109DL2013PTC248564

Company & Directors' Information:- R R INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U70109DL2006PTC150324

Company & Directors' Information:- S D P INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45200HR2013PTC048666

Company & Directors' Information:- B P K INFRASTRUCTURES PRIVATE LIMITED [Active] CIN = U45203KA2009PTC049331

Company & Directors' Information:- T M R INFRASTRUCTURES PRIVATE LIMITED [Strike Off] CIN = U45400TG2007PTC054647

    R.V.W. No. 343 of 2016 With C.A.N. No. 10428 of 2016 With W.P. No. 3287 (W) of 2011

    Decided On, 21 February 2017

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MS. JUSTICE SAMAPTI CHATTERJEE

    For the Appearing Parties: Saktinath Mukherjee, Sagar Bandyopadhyay, Tanmoy Banerjee, Ashok Bhowmick, Susovan Sengupta, Rajsekhar Mantha, Gopa Chakraborty, Advocates.



Judgment Text

1. The present review application has been filed by Terai Infrastructures Ltd, a company incorporated under the Companies Act, 1956 being the respondent no.3 in the main writ petition.

2. The writ petitioner filed the said writ petition seeking following reliefs :-

"(a) Writ and/or Writs I the nature of Mandamus commanding the respondent authorities and/or each of them to :

(i) act in accordance with law

(ii) refund the said total sum of Rs.31,67,803/- as pleased in paragraphs 20, 21 and 22 herein to the petitioners forthwith

(b) Writ and/or Writs in the nature of prohibition prohibiting the respondent authorities and/or each of them from dealing with and/or disposing of and/or further encumbering and/or creating any third party right, title and interest over and in respect of the said property more fully and particularly described in schedule of the tender notice being annexure P-2 in any manner whatsoever.

(c) Writ and/or Writs in the nature of certiorari commanding the respondents nos.1 and 2 and /or each of them to transmit and certify each and every records, appears and documents relating to the instant case before this Hon'ble Court so that conscionable justice can be made by directing the respondents nos.1 and 2 no.1 and 2 to refund the total sum of Rs. 31, 67,803/- to the petitioners forthwith by quashing entire legal action of the respondents nos.1 and 2 no.2 and 2.

(d) Rule nisi in terms of prayers above.

(e) Rule be made absolute if no cause or insufficient cause is shown.

(f) Injunction restraining the respondents nos.1 and 2 and each of them and/or their men, agents, servants and assigns to deal with and/or dispose of and/or further encumbering and/or creating any third party right, title or interest over and in respect of the said property as more fully and particularly described in the said tender notice dated July 8, 2010 being annexure P-2 herein and in any manner whatsoever until the instant petition is disposed of.

(g) Directions upon the respondents nos.1 and 2 no.1 and 2 to forthwith refund the sake consideration to the petitioners.

(h) Ad interim orders in terms of prayers above.

(i) Costs of and/or incidental to this application be paid by the respondents.

(j) Such further or other order or Orders be made and/or Direction or Directions be passed as this Hon'ble Court may deem fit and proper."

3. At the time of disposing of the said writ petition on 26th September, 2016 learned Advocates representing the private respondent no.3 (petitioner herein) without taking proper instruction from their client submitted before this Court that schedule of the plaint of Title Suit No.52 of 2006 is different from the property sold to the writ petitioner by the bank. Learned Advocate for the respondent no.3/petitioner herein submitted before the Court that their names should be deleted from the cause title. Therefore, on 26th September, 2016 this Court disposed of the said matter thereby directing the respondent/bank to deliver possession of the said property to the writ petitioner within two weeks from the date of communication of the order and further directed the Officer-in-Charge, Bhaktinagar Police Station to render all assistance to the bank at the time of handing over possession of the said land to the petitioner.

Submissions of the Learned Advocates

4. Mr. Saktinath Mukherjee, learned senior counsel appearing for the respondent no.3/petitioner herein submitted that the submission of the learned Advocate who was appearing for the respondent no.3 was made before the this Court only on the basis of the plaint of Title Suit No.52 of 2006 and not on instruction.

5. Mr. Mukherjee further contended that immediately after getting server copy of the order dated 26th September, 2016 the petitioner detected the mistake in the schedule of the plaint of the T.S. No.52 of 2006 and therefore moved an amendment application before the Learned Civil Court for correction of the plaint of T.S No.52 of 2006 which has been allowed by the Learned Civil Judge (Senior Division) Jalpaiguri by an order dated 28th September 2016 thereby correcting the schedule of the plaint. The earlier schedule of the plaint and amended schedule of the plaint are respectively quoted below :-

"Earlier Schedule

(Description of the suit property)

All that piece and parcel of lands measuring about 0.2031 acres of lands more or less equivalent to cottahs 5 chhataks comprised in R.S. Khatina No.571 appertains to plot no.s 241 (part) and 245 (part) in sheet no.8 of Mouza Dabgram Pargana Baikunthapur, P.S. Bhaktinagr (formerly Rajganj P.S) J.L. No.5, Touzi No.3, District Jalpaiguri which is being butted and bounded as follows :

On the North (86'-6" in length) by the 30'-0" wide road

On the South (85'-6" in length) by the land of plaintiff.

On the East (102'-0" in length) by the land of Mr. R. Puri

On the West (105'-0" in length) by the land of plaintiff

Amended Schedule

(Description of the suit property)

All that piece and parcel of lands measuring about 0.2031 acres of lands more or less equivalent to 12 cottahs, 5 Chhataks comprised in R.S. Khatian No.571 appertains to plot Nos.244 (part) and 245 (part) in Sheet No.8 Mouza Dabgram Pargana Baikunthapur, Police Station Bhaktinagar (formerly Rajganj Police Station), J.L. No.2, Touzi No.3 District-Jalpaiguri which is being butted and bounded as follows :-

On the North-(86'-6" in length) by the 30'-0" wide road;

On the South- (85'-6" in length) by the land of plaintiff;

On the East- (102'-0" in length) by the land of Mr. R. Puri;

On the West- (105'-0" in length) by the land of plaintiff."

6. After the amendment application was allowed on 3rd October, 2016 the respondent no.3/petitioner herein obtained leave to file review application without certified copy and such leave was granted by this Hon'ble Court. Hence, the review application.

7. It was the contention of Mr. Susovan Sengupta, learned Advocate who appeared for the petitioner in the main writ petition that despite accepting a sum of Rs. 31,67,803/- in an auction sale by the respondent bank in respect of Plot Nos.244 and 245 (Part), J.L. No.2, Sheet No.-8, Khatian No.571, Holding No.2906, P.S. Bhati Nagar, Mouza-Debgram under Siliguri Municipal Corporation, those plots have not been handed over to the writ petitioner by the respondent no.1 and 2 namely Andhra Bank. Though submission of Mr. Sengupta was vehemently opposed by Mr. Mantha learned senior counsel for the respondent bank but he failed to produce any document showing that possession has been handed over to the petitioner. Therefore, this Court disposed of the said application on 26th September, 2016 with some direction as stated above.

In the said order the submission of the learned Advocate appearing for the respondent no.3/petitioner herein was also recorded to the effect that the property of the respondent no.3 relates to Plot Nos.241 and 245 (Part) J.L. No.5 and not J.L. No.2 . Therefore, Mr. Deb learned Advocate appearing for the respondent no.3/petitioner herein prayed before this Court that the name of the respondent no.3 should be deleted from the writ petition.

8. Mr. Mukherjee submitted that though in the original sale deed the amended schedule of property is appearing but in the said plaint by mistake wrong schedule has been mentioned which has been corrected subsequently by the Learned Civil Judge (Senior Division), Jalpaiguri vide order dated 28th September, 2016 thereby allowing the amendment application.

9. Mr. Mukherjee further vehemently urged that the wrong schedule was supplied to the learned Advocate by the petitioner at the time of filing the Title Suit No.52 of 2006. It is the mistake committed by the petitioner which was subsequently rectified by the Learned Court below thereby allowing the amendment application on 28th September, 2016. Therefore, the petitioner filed the present review application for review of the said order.

10. Mr. Mukherjee also vehemently urged that mistake was also made in the body of the writ petition which appears at Page-13 of the said writ petition.

11. Mr. Mukherjee further submitted that the bank was initially injuncted by the Learned Court below which was subsequently confirmed by order dated 24th March, 2015 (appears at page-35) of the review petition.

12. Mr. Mukherjee further contended that by filing application under Section 151 of Civil Procedure Code prayer for withdrawal of suit or amendment of some portion of the application also can be filed. In support of his contention Mr. Mukherjee relied on a decision of this Hon'ble Court reported in AIR 1986 (Cal) Page-19 Paragraphs 14 and 16 (Rameswar Sarkar v. State ) which was subsequently upheld by the Hon'ble Apex Court. Paras 14 and 16 are quoted below :-

"Para-14 - The scope of Section 151 is very wide. Where there is no provision under the Code of Civil Procedure prescribing any remedy, Section 151 will apply. Order 23, Rule 1 provides withdrawal of a suit with or without liberty to file a fresh suit. There is no provision for getting an order passed on withdrawal application set aside or praying for withdrawal of an application for withdrawal of the suit. In such circumstances, in our opinion, the Court is not powerless to allow withdrawal of an application for withdrawal of a suit in exercise of its inherent power in a proper and suitable case. In a Bench decision of this Court in Manik Mahato v. Gangapada Mahato, (1977) 81 Cal WN 950, it has been held that the Court has always jurisdiction to entertain and consider an application under Section 151 of the Code of Civil Procedure which is primarily directed for recall of an order passed earlier. Further, it has been held that notwithstanding that an appeal lies against an order rejecting a plaint, an application under Section 151 is maintainable as such an appeal would be of no avail to the plaintiffs as there would be no material before the Appellate Court to go by. In this connection, we may refer to a decision of Lord-Williams, J. in Bhagat Singh v. Dewan Jagbir Sawhney, AIR 1941 Cal 670. It has been observed by his Lordship that the Code is not exhaustive; there are cases which are not provided for in it, and the High Court must not fold its hands and allow injustice to be done. Further, it has been held that the law cannot make express provisions against all inconveniences, and the Court has, therefore, in many cases where the circumstances warrant it, and the necessities of the case require it, to act upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of which alone it exists.

Para-16 - In the instant case, according to the plaintiff he could not realise the seriousness of the prejudice that would be suffered by him if the suit was withdrawn without liberty to file afresh suit. It has been already noticed that the plaintiff has paid the maximum court-fee of Rs.10,000/-. It is true that the Court has passed an order dismissing the suit for non-prosecution on the application of the plaintiff but, in our opinion, that would be no ground to refuse to do justice. If through mistake the plaintiff has withdrawn the suit, the Court, in our view, will not be powerless to set aside the order of dismissal of the suit and allow the withdrawal of the application for withdrawal of the suit in exercise of its inherent power. Most respectfully we beg to differ from the view that the Court has no jurisdiction to allow withdrawal of an application for withdrawal of a suit in exercise of its inherent power as recognised under Section 151 of the Code of Civil Procedure. It is, however, made clear that there must be some justifiable reasons for allowing withdrawal of the application of withdrawal of the suit."

13. On the point of bona fide mistake committed by the litigant at the time of filing suit which can be rectified by the self same Court subsequently by filing application for amendment before the concerned Court Mr. Mukherjee relied on a Hon'ble Supreme Court decision reported in AIR 2006 SC Page-1260 Paragraphs 24 and 25 ( Jet Ply Wood Pvt. Ltd and Anr. v. Madhukar Nowlakha and Ors )which are quoted below :-

"Para-24 - From the order of the learned Civil Judge (Senior Division) 9th Court at 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 while 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 it self which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it 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. Para-25- The aforesaid position was reiterated by the learned single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005 in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the Court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, 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 the possible circumstances which may arise in future litigating and consequently for providing the procedure for them."

14. Before concluding his argument Mr. Mukherjee submitted that by mistake in some portion in the body of the plaint as well as in the prayer portion of the plaint plot numbers of the land of the petitioner has been wrongly quoted. But those have been rectified on 28th May, 2016 by the concerned Court below thereby allowing the amendment application. Therefore this Court should review/modify its order dated 26th September, 2016 as the entire episode has now been brought before this Hon'ble Court in the present review application.

15. Per contra, Mr. Rajsekhar Mantha, learned senior counsel appearing for the respondent bank, while dealing with the decision reported in Rameswar Sarkar case (supra) cited by Mr. Mukherjee submitted that in fact cited case is in favour of the bank.

16. Mr. Mantha further emphasized that after detection of the mistake the plaintiff filed application under Section 151 and the High Court passed the order under Section 151 in appeal. Mr. Mantha submitted that remedy of the petitioner lies before the appeal Court not before the interlocutory Court.

17. Mr. Mantha further vehemently urged that the respondent no.3/petitioner herein should have approached the Hon'ble Division Bench by preferring appeal against the order dated 26th September, 2016 instead of filling the review application before the Single Bench. In support of his contention Mr. Mantha relied on two decisions reported in (2011)11 Supreme Court Cases Page-275 Paragraph-12 (K.K. Velusamay v. N. Palanisamy) and (2008) 8 Supreme Court Cases Page-612 (State of West Bengal And Others v. Kamal Sengupta And Another) Paragraph 21 which are quoted below :-

"Para-12 - The respondent contended that Section 151 cannot be used for reopening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that Section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions [see Padam Sen v. State of U.P.; Manohar Lal Chopra v. Seth Hiralal; Arjun Singh v. Mohindra Kumar; Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava; Nain Singh v. Koonwarjee; Newabganj Sugar Mills Co. Ltd. v. Union of India; Jaipur Mineral Development Syndicate v. CIT; National Institute of Mental Health and Neuro Sciences v. C. Parameshwara and Vinod Seth v. Devinder Bajaj].

We may summarise them as follows :-

(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is "right" and undo what is "wrong", that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."

"Para-21-At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier."

18. Before parting with his submissions Mr. Mantha submitted that review petition should be dismissed since the remedy of the respondent no.3/petitioner herein lies in appeal but not in reviewing the order passed at the time of disposing the writ petition.

19. Mr. Susovan Sengupta, learned Advocate appearing for the writ petitioners after endorsing submission of Mr. Mantha submitted that the plaint was amended only on 28th September, 2016 after disposal of the writ petition on 26th September, 2016.

20. Mr. Sengupta further vehemently argued that admittedly at the time of disposing of the writ petition on 26th September, 2016 no amendment petition was ever filed before Learned Court below to amend the body as well as prayer portion of the plaint.

21. Mr Sengupta further argued that the concerned deed of conveyance was very much within the knowledge of the review petitioner, therefore they cannot take the plea that the concerned deed of conveyance was not in the knowledge of the petitioner at the time of filing of the said plaint.

22. Mr. Sengupta also strongly urged that the review petitioner has failed to satisfy the criteria provided in Order 47, Rule 1 of the CPC. Therefore, this review petition cannot be entertained by this Hon'ble Court for altering/modifying/reviewing the order dated 26th September, 2016.

To appreciate the scope of review Order 47, Rule 1 is quoted below :-

"Order 47 (XLVII) Rule-1 Application for review of judgment.-(1) Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes. And who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review."

Decision with Reasons

23. Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records and the decisions cited above I find that due to inadvertence and bona fide mistake on the part of the learned Advocate who was conducting the suit pending before Learned Civil Judge (Senior Division) at Jalpaiguri the Plot numbers 241 (Part) and 245 (Part) were wrongly mentioned in the body of the plaint in Title suit No. 52 of 2006 as well as in the Schedule of the plaint which was subsequently corrected on 28th September, 2016 when the amendment petition was allowed by the Learned Trial Court after the order passed by the Hon'ble Court on 26th September, 2016.

24. It is evident from the record of Writ Petition No. 3287 (W) of 2011 that till 26th September, 2016 there was no amendment either of the body of the plaint or the schedule of the plaint by the Learned Court below. But amendment was caused two days after the passing of the order by this Court. The High Court after accepting the submission advanced by the learned Advocates appearing for the petitioner disposed of the writ petition with some direction as indicated in the order dated 26th September, 2016.

25. It is also evident from record that Plot numbers 244 (Part) and 245 (Part) and J.L. No.2 are appearing in deed no.1-1362 but due to inadvertent and bona fide mistake on the part of the learned Advocate who was conducting the Title Suit No. 52 of 2006 on behalf of the petitioner different plot numbers and J.L. numbers were mentioned in the body of the plaint as well as in the Schedule of the said suit. But the correct numbers were subsequently mentioned by the Learned Court below vide order dated 28th September, 2016. I have to consider that High Court is the Court of records. Therefore, under Section 151 of Civil Procedure Code the Hon'ble Single Bench as well as the Hon'ble Appeal Bench have vested with inherent power to exercise power under Section 151 of the Civil Procedure Code. Rule 53 of the Appellate Side Rules empowered the Single Bench as well as the Hon'ble Division Bench to exercise power under Section 151 of the CPC. Section 107 Sub Section 2 of the Civil Procedure Code empowered Appeal Court as well as the Trial Court to exercise inherent power vested under Section 151 of the Civil Procedure Code. Section 107 Sub Section 2 and Section 151 of Civil Procedure Code and Rule 53 of the Appellate Side Rules are quoted below :-

"Section 107 Sub Section 2-Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein."

Section 151 - Saving of inherent powers of Court-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

Rule 53 - Save and except as provided by these Rules and subject thereto, the provisions of the Code of Civil Procedure (Act V of 1908) in regard to suits shall be followed, as far as it can be made applicable, in all proceedings under Article 226 and nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of this Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

26. In my view Courts have to render substantial justice to the parties to avoid further litigation. If it is found that by mistake wrong plot numbers as well as J.L. number have been mentioned in the body and the Schedule of the said plaint the Court in order to sub-serve the ends of justice has ample power under Section 151 of the Civil Procedure Code to rectify such mistake committed inadvertently in the body of the plaint as well as the schedule of the plaint.

27. In my considered view if the order dated 26th September, 2016 is allowed to remain unaltered and/or not modified then the subsequent order passed by the Learned Court below on 28th September, 2016 would be rendered infractuous. Furthermore, if the order on 26th September, 2016 is allowed to be acted upon then the inadvertent mistake committed at the time of filing the said suit will stand accepted and binding on the parties though admittedly those mistake in the suit has been subseque

Please Login To View The Full Judgment!

ntly corrected on amendment by the Learned Court below vide its order dated 28th September, 2016. That being the scenario in my opinion to render substantial justice to the parties Court is not powerless to correct the apparent mistakes inadvertently committed Admittedly by filing the present review application entire facts have been brought by the petitioner to the notice of this Court. After going through such facts Court cannot shut its eyes thereby allow the order passed on 26th September, 2016 to be carried on. Considering the grounds of review as enumerated under Order 47 Rule1 of the Civil Procedure Code in my opinion the order dated 26th September, 2016 should be reviewed for the reasons discussed. Therefore, in my opinion the present application warrants that the order dated 26th September, 2016 should be recalled. 28. Accordingly, the order dated 26th September, 2016 passed in W.P No. 3287 (W) of 2011 (Robin Commodeal Pvt. Ltd and Another v. Andhra Bank and Ors) is hereby recalled. 29. Now I have to deal with the decisions cited by Mr. Mantha. The facts of case in K.K. Velusamy Case (supra) and the facts of the present case is completely different. In that cited case after filing of the suit written statement was filed,therefore, both parties lead evidence. Thereafter at argument stage the appellant filed two applications under Section 151 of the Civil Procedure Code with a prayer to re-open the evidence for the purpose of further cross-examination of the plaintiff no.1 and the plaintiff no.2 but in the present case by inadvertent and bona fide mistake at the time of filing the suit wrong quoting of plot numbers as well as J.L. number were quoted which was amended by the concerned Learned Court vide order dated 28th September, 2016 subsequently passed after disposal of the writ petition on 26th September, 2016. That fact was brought by the petitioner by filing the present review application. Therefore, the cited case in K.K. Velusamy case (supra) may be a good one in the facts and circumstances of that case but it has no application in the present case. The facts of case in State of West Bengal case (supra) the Learned Tribunal reviewed its order on the basis of a decision passed in Joydev Biswas Case though that case was under challenge in the writ petition filed before the Hon'ble High Court which was still pending. But in the present case the correct plot numbers as well as J.L. number are appearing in the original sale deed which was by inadvertent mistake wrongly mentioned in the body of the plaint as well as in the schedule. Therefore, facts of the cited case and facts of the present case are completely different. 30. With those observations this review application stands allowed without any order as to costs. 31. The W.P No. 3287 (W) of 2011 be placed before the appropriate Bench for hearing. 32. Urgent photostat certified copy of this order., if applied for, be supplied to the parties after fulfilling all the formalities. Application allowed.
O R