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Judgment
D.P. Sood, J.—The suit is for the recovery of rupees sixty-three lacs and odd. Written statement had been filed by the applicants-defendants Nos. 1 to 5 on whose behalf the instant application has been filed for recalling the order dated 9th June, 1992.
Some of the essential facts for consideration of this application are that this Court feeling the necessity of calling for the defendants for recording the statements of defendants Nos. 3 to 5 and 7 passed an order on 18th May, 1992 for their personal appearance before this Court on 8th June, 1992. These defendants were represented by their counsel Mrs. Ranjana Parmar, whose power of attorney is on the record. The aforesaid defendants failed to appear on the said date and instead of waiting for their arrival, the case was adjourned to 9th June, 1992. It is pertinent to note that on all the three dates referred to above, Mrs. Ranjana Parmar, the counsel for the aforesaid defendants did appear before this Court.
In order to appreciate the respective contentions of the parties, now it is just necessary to notice the interim orders that led to the striking off the defence of the applicants. Their verbatim reproduction is as follows:--
18-5-1992:
Present: Shri R. L. Sood, counsel for the plaintiff. Mrs. Ranjana Parmar counsel for defendants Nos. 1 to 5.
At the time of framing of issues it has been felt essential that defendants Nos. 3 to 5 and 7 appear in person for reconrding their statements under O. 10, R. 1, C.P.C. on 8th June.
8-6-1992 :
Present : Shri R. L. Sood, counsel for the plaintiff. Mrs. Ranjana Parmar counsel for defendants Nos. 1 to 5.
Learned counsel for defendants submit that defendants have already started from Delhi and they are on their way to Shimla as per information given to her. She requests that the case be listed at 2.00 p.m. In the circumstances it would be better in case the case is listed for 9-6-1992 in order to avoid any further complication.
Sd/- (D.P. Sood) Judge.
9-6-1992 :
Present : Shri R.L. Sood, counsel for the plaitniff. Mrs. Ranjana Parmar. Advocate for defendants Nos. 3, 4 and 7. She also submits that she had filed power of attorney in the Registry on behalf of defendants Nos. 1 and 2. Shri Ravi Bakshi, Advocate for defendant No. 10.
On 18th May, 1992 defendants 3 to 5 and 7 were directed to appear on 8th June, 1992 for the purpose of recording their statements under Order 10, Rule 1 and 2, C.P.C. Later on on 8th June, 1992, Mrs. Ranjana Parmar counsel for defendants 1 to 5 apprised this Court that defendants Nos. 3 to 5 have already started from Delhi on 7th June, 1992 and she requested the case to be listed at 2.00 p.m. However, considering the unusual circumstances, the case was listed for today. Even today said defendants as also defendant No. 7 are not present. She has also stated at the bar that she has already apprised her clients in writing as also telephonically but despite that they are not present.
None of these defendants are present despite the above order, as such, their defence is ordered to be struck off.
Let the case be listed for issues now.
Dasti copy on usual terms.
Sd/-(D. P. Sood) Judge.
The grounds for recalling of this order dated 9th June, 1992 as per the arguments advanced by the learned counsel for the applicants are;
firstly, the order is illegal inasmuch as this Court did not put material questions relating to the suit to the applicants'' counsel Mrs. Ranjana Parmar before directing the appearance of the aforesaid defendants on their behalf;
secondly, that in view of the claim made by the plaintiffs, this Court has to do substantial justice and this Court being the Court of Record, has got the plenary jurisdiction to correct its order which has been passed by mistake; and
thirdly, that there is no express provision in the CPC either by way of appeal, revision or review and as such this Court is amply empowered to recall the impugned order u/s 151 of the Code of Civil Procedure.
On the other hand, learned counsel for the plaintiff-respondent has vehemently refuted the aforesaid arguments. At the very out set, it has been contended that an application for recalling the impugned order had earlier been filed in the Registry which was returned for removal of objections but the applicants instead of re-filing the same have moved the instant application by pleading entirely new grounds which cannot legally be so done. Secondly, that it was the legal duty of the counsel concerned to have apprised this Court that she was duly authorised and instructed and she was able to answer the material questions relating to the suit in question; thirdly this Court was fully empowered to pass the impugned order which is valid as it falls within the ambit of Order 10(4)(2) of the Code of Civil Procedure; fourthly, that the arguments which have been advanced today before this Court have not specifically been made the grounds in the application for recalling the order; and fifthly, that the order striking off the defence of the defendants-applicants amounts to a final order and it can be assailed only by way of appeal or review.
Having given my thougthful consideration to the entire matter, I am inclined to accept the stand taken by the learned counsel for the applicants-defendants that in the instant case till their counsel in the trial Court had either expressed his unwillingness or refusal to answer the questions which the Court wanted to elicit, there was no justification either to summon the defendants for the said purpose or to strike off their defence. I am also in agreement with the submission of the applicants counsel that this Court being the Court of Record, has plenary jurisdiction to correct its palpably erroneous order under its inherent jurisdiction and the remedy of the applicants, in the circumstances, lay by way of filing an application u/s 151 of the CPC seeking to recall the impugned order. On the contrary, I am also in agreement with the contentions of the learned counsel for the plaintiff-respondent that once an application in a suit pending decision is filed in the Registry as per the Rules and it is returned to the learned counsel for removing the objections so raised, such application becomes a part of the judicial record and it is legally required to be refiled.
In the first instance, I will deal with the question as to what is the nature of the plaint, written statement, petition, application etc. filed in the Registry by either of the parties or their counsel. Such plaint or petition etc. are filed after observing the codal formalities under the Rules on the Original Side. Its copies are provided to the opposite parties in advance. The Registry of this Court merely helps to see whether such document is complete in all respects. On the filing of the same by any party it is put under scrutiny and that too under the Rules on Original Side. In case such application or petition etc. is found defective, then only it is returned for removing the objections and re-filing the same. The maximum period for refiling such a document, provided under the Rules, is 40 days and in case the same is filed thereafter, it is put up before the Court for passing appropriate orders for making it a part of the record. However, the entire effort so made is to see whether such document is complete in all respects or not through the Registry in order to avoid the wastage of the time of the Court. Seeing the Scheme of the Rules on Original Side applicable on the reception of the plaints, written statements and petitions etc. all these documents cannot but be considered to be a part of the judicial file and they cannot in any case be retained by the counsel who has been asked to remove the objections. In the instant case, earlier an application under Order 9, Rule 9 read with Section 152, C.P.C. for setting aside the impugned order was intended to be filed by the defendants. The applicant-defendants had sought for setting aside of the impugned order and for providing an opportunity to defendants Nos. 3 and 4 to lead their evidence in the suit. In other words, this application was filed merely for and on behalf of applicants Nos. 3 and 4 and none else.
Now adverting myself to the controversial points raised by the counsel appearing on behalf of the parties, the foremost question for determination would be as to whether Smt. Ranjana Parmar for and on behalf of the counsel for applicants was duly authorised and instructed to answer the material questions relating to the suit in question?
Undisputedly, Smt. Ranjana Parmar had put in appearance on 9-6-1992 for and on behalf of the applicants-defendants Nos. 1 to 5 and 7. Her power of attorney is on record. Order 3, Rule 4 of the CPC pertains to the appointment of pleaders/ advocates. A careful reading of this would show" that a counsel once engaged, cannot withdraw from a suit or proceedings etc. except with the leave of the Court. Now the clauses of the power of attorney of Smt. Ranjana Parmar which is on record reveal that she has been empowered to act and plead as also to appoint another counsel for the said purpose and to instruct him in relation to the prosecution of the case. If the expression "act" or "pead" or "appoint and instruct another counsel" is read in the true perspective, it implies that the learned counsel was "duly authorised" and "instructed" by her clients, i.e. applicant-defendants, to pursue their case. Thus in these circumstances, the record shows that the learned counsel was duly authorised and instructed even for answering the material questions relating to the suit which was intended to be elucidated by this Court.
The next question whether the impugned order is palpably erroneous, would depend upon the interpretation of the provisions of Order 10, Rule 1 and 2 read with Rule 4 of the Code of Civil Procedure. The controversy arising from the rival arguments of the learned counsel for the parties is whether material questions relating to the suit ought to have been put to the learned counsel for the applicants before summoning the defendants for their examination under Order 10, Rule 1 and 2, C.P.C.? In support of this proposition learned Counsel for the applicants has relied upon various cases namely; Sadeshwar Narain v. Qadir Bakshi AIR 1918 Oudh 429 ; Parmarath Gir Vs. Krishna Dayal Gir and Others, ; Chetanram v. Mangharam RLW 1956 399 ; Vishnu Kumar Vs. State Bank of Bikaner and Jaipur and Others, ; Shri Saraswati Spinning Mills Vs. Gheru Lal Bal Chand Abohar, and Ron Son Export House Pvt. Ltd. and Another Vs. The New Bank of India Ltd.,
No doubt the intention behind the examination of the parties at this stage under Order 10 of the CPC appears to be to enable the Court not only to get obscure points cleared by obtaining the information from either of the parties but also, if possible, to get admissions so as to narrow down the issues raised in the pleadings but the rule being a penal provision, its terms have essentially to be applied strictly before the Court can justifiably pass an order striking off the defence of a party. Rules 1 and 2 of Order 10 further indicate that in case both the parties as also counsel are present before the Court and the Court intends to elicit answers to some material questions to get obscure points cleared by obtaining the information, it is discretionary with the Court to either examine the counsel of the party concerned. There is no difficulty in applying this Rule in case the party concerned is alone present and counsel does not appear before the Court. However, in case the counsel representing such a party puts in appearance but the party concerned absents, Rule 4 of Order 10 is attracted. It has two parts. The phraseology of the first part of this Rule itself indicate that before the Court requires the personal appearance of the parties it shall essentially examine the parties'' counsel and if it still feels that further elucidation of any point or question is necessary, it may call the party in person. The other contingency is that in case the counsel refuses to answer or shows his inability to answer the material question(s) relating to the suit, then the Court can direct the presence of the party concerned on the next date of hearing for the aforesaid purpose. The second part of this Rule applies where the party so summoned fails to put in appearance. In that case this Rule provides that Court is empowered to pass any order which it may deem fit. Such order includes the striking off the, defence of that party too. The ratio decidendi laid down in the Rule cited by the learned counsel for the applicants-defendants is that if a party has a duly authorised and instructed counsel, then under the provisions of Order 10, Rule 1, 2 and 4 of the Code of Civil Procedure, such counsel should be initially examined and if after that examination the Court feels that further elucidation is still necessary then orders could be issued to summon the party concerned. In the present case no such attempt to examine the counsel had been made by this Court before summoning the applicant-defendants. Thus the orders so passed was palpably erroneous.
The next question with which this Court is faced is, what remedy is available to the applicant-defendants? The basic principle as laid down in the case of Jang Singh Vs. Brijlal and Others, is:
"There is no higher principle for the guidance of the Court than the one that no act of Court shall harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim ''Actus curiae neminem gravabit."
Obviously in the instant case, a palpably erroneous order has been passed by this Court in striking off the defence of the applicant-defendants. This is an interim order. It does not in any way vests the plaintiff-respondents with substantive rights. There is no specific provision in the CPC enabling the Court to recall the impugned order which is the result of mistake admittedly committed by this Court. No question of interference with the substantive rights arises. The question involved in the present case is very much procedural. Only because some rights are wrongly presumed in favour of a party, it cannot be said that the case involves a question of substantive rights. Large number of cases have been relied upon by the learned counsel for the applicant-defendants to support the view that this Court being the Court of Record, has plenary jurisdiction to recall a palpable erroneous order under its inherent powers which can only be examined u/s 151 of the Code of Civil Procedure. Some of these cases are: Ahamad v. Commissioner of Income Tax, Kerala 1974 KLT 627 : D. Meyers v. Gora Chand Bural. 1981 CWN 1128 : AIR 1981 NOC 209, Kedar Nath v. Firm Hira Lal Bros., 1975 PLR 250 (DB), Ranbir v. Tulsi 1983 PLR 69 , Sita Ram Sahu and Others Vs. Kedarnath Sahu, , T. Krishnappa and Another Vs. H. Lingappa, , Jaipur Mineral Development Syndicate, Jaipur Vs. The Commissioner of Income Tax, New Delhi, and Gangabai and Others Vs. Ratan Kumar and Others,
In the instant case, the application has rightly been filed u/s 151 of the CPC within the statutory period of limitation. To such an application Article 113 of the Limitation Act applies where under statutory period is three years. It is true that inherent powers are to be exercised sparingly in exceptional matters. In the instant case, I have already observed that the impugned order was passed by the Court without adhering the procedure laid down under Order 10 of the CPC and thus the same is palpably erroneous order. In that view of the matter, the contention of the learned counsel for the plaintiff-respondent that the grounds pleaded in the earlier application (which was only on behalf of defendants Nos. 3 and 4 and not on behalf of other defendants) are different would not make any substantial difference in the conclusion arrived at by this Court. The fact that earlier application included the grounds that the applicants were prevented by a sufficient cause to appear before this Court and that there is no proof thereto, is of no value.
In view of the above, the order dated 9th June, 1992 striking off the defence of the applicants-defendants is recalled and is substituted by the order of the even date. The application stands disposed of in terms of the above subject to costs of Rs. 1000/- payable by the applicants to the plaintiff-respondent on or before the next date. In case the costs are not paid the defendants shall debar themselves from joining the further proceedings in the suit.