T. Venkata Krishnamacharyulu vs P. Kishore Reddy and Others

V. Bhaskar Rao, J.—The petitioner herein is 2nd respondent in C.R.P. No. 779/1992 and he is seeking recall of the order dated 13-4-1993 by way of review u/s 151 of CPC read with Order IX Rule 13 of CPC and to dismiss the revision petition.

The facts in brief are that in a reference u/s 30 of the Land Acquisition Act for determination of the shares and apportionment of the amount of compensation payable to the concerned persons in L.A.O.P. No. 108/1990, the respondent herein filed a cheque petition along with a copy of the order of the High Court in C.R.P. No. 779/1992 dated 13-4-1993 which showed that the CRP was filed against an order dated 31-12-1991 in an unregistered I.A., in L.A.O.P. No. 108/1990 on the file of the Principal Subordinate Court, Tirupati. No notice was given to the other side and the above I.A., was disposed of by a brief order which is reproduced below: --

"31-12-1991: --

Heard. When there is a title dispute and which has to be decided finally, then only the entitled party will get the amount. Meantime, it cannot be given. Absolutely no pain to canvass the request of the petitioner, when filed this petition u/s 151, CPC. Hence this petition is rejected".

Thereupon the petitioner herein caused enquiries and learnt that a notice was sent in the above CRP to one Sri M. Mohan Raj, Advocate, Tirupati, and the same appears to have been served on him, but he never engaged Mr. Mohan Raj, Advocate, on his behalf. He engaged one Mr. K. Parthasarathy, Advocate, in LAOP No. 108/1990 to whom no notice was issued in CRP No. 779/1992. Besides the assertion of the petitioner in this regard, there is an affidavit of Mr. K. Parthasarathy, Advocate, to the above effect. Thus, the petitioner had no knowledge of either filing of unregistered LA. of 1990 and the order dated 31-12-1991 thereon or CRP. No. 779/1992 on the file of the High Court. The notice purported to have been served on Mr. Mohan Raj, Advocate, Tirupati, who did not file vakalat for any one in L.A.O.P. No. 108/1990 was treated as notice to the petitioner herein and other respondents and the impugned order dated 18-4-1993 was passed.

The learned Counsel for the petitioner Mr. A. Rangacharyulu contended that the above order was obtained by paying fraud upon the Court inasmuch as notice was sent to Mr. M. Mohan Raj, Advocate, Tirupati, who is not concerned with the case and hence this Court has power to review the order dated 13-4-1993 and to dispose of the revision petition afresh. He relied on a Division Bench judgment of this Court in P. Satyanarayana Vs. The Land Reforms Tribunal and Others, and another Judgment of the Supreme Court in Ram Chand and Sons Sugar Mills Pvt. Ltd. Vs. Kanhaya Lal Bhargava and Others, .

The learned Counsel for the 1st respondent and revision petitioner fairly conceded that the impugned order in C.R.P. N0. 779/1992 is not tenable and it has to be recalled as the same was passed without notice to the respondents concerned.

I perused the record and considered the contentions of the learned Counsel for the petitioner. It is evident that the lower Court did not think it necessary to issue notices to the respondents in the un-registered I.A., and it did not even number it and rejected the same summarily. The order thereon is extracted above and therefore there was no knowledge of the above order to the petitioner herein. The respondent No. 1 herein carried the matter to the High Court and filed CRP No. 779/1992 and challenged the above order. In usual course notice was ordered to the respondents including the petitioner who is 2nd respondent therein. It is also brought on record that neither the petitioner herein nor his Advocate Mr. Parthasarathy are served with any notice in the CRP. On the contrary it was one Mr. Mohan Raj, Advocate of Tirupati who never filed vakalat for any party in L.A.O.P., wa served with notice. All these facts are not at all in dispute. The learned Counsel for the petitioner Mr. A. Rangacharyulu rightly contended that notice was taken out by the revision petitioner to Mr. Mohan Raj, Advocate, who was not representing any of the respondents in CRP., and that act amounts to fraud upon the Court. It could not be verified by the office whether Mr. M. Mohan Raj, Advocate, had any locus standi in the matter or not as the lower Court record was not called for. It was therefore innocently reported that notices were served and it was believed by this Court that notices in CRP No. 779/1992 were served, but in fact no notices were served either upon the petitioner herein or other respondents or their counsel Mr. Parthasarathy. I am therefore satisfied that fraud was played upon the Court.

In the judgment supra (1), it is held,

"On a conspectus of case law, it becomes quite evident that a Court or Tribunal cannot review its own order or Judgment unless there is a statutory provision providing for the same. However, a Court or tribunal has inherent powers to recall orders obtained by practising fraud on it. There is no question of the Court becoming functus officio, because it retains the jurisdiction to recall such orders. It inheres in a Court or Tribunal to review by recalling the orders on grounds of fraud, misrepresentation or other similar grounds".

In the above case which arose from an order of the Land Reforms Tribunal where the declared is said to have declared that his family consists of 7 members, but whereas there were only 5 members. The case was reopened by the Tribunal suo motu as soon as the above fraud was brought to its notice and the same was challenged in a Writ Petition and on a consideration of a number of judgment of various High Courts including Full Bench decision of Bombay High Court, this Court held that such an order can be reviewed under the inherent powers of the Court.

In the judgment supra (2), it is held by the Supreme Court

"The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Civil Procedure Code. But that power will not be exercised if its exercise is inconsistent with or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provsions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control tine undoubted power of the Court conferred u/s 151 of the Code to make a suitable order to prevent the abuse of the process of the Court".

In view of the above case law, it becomes a well established principle that this Court has inherent power to recall or review its own orders which were obtained by playing fraud upon the Court. I, therefore, set aside the order dated 13-4-1993 in exercise of inherent powers u/s 151 of Code of Civil Procedure. CMP. 604/95 is therefore allowed and order dated 13-4-1993 is set aside.

Turning to the impugned order in CRP. 779/1992, dated 31-12-1991, I-perused the same. The learned Principal Subordinate Judge merely held that there is a title dispute and only after a final decision thereof, it will be known as to who is entitled to what amount and that the amount cannot be paid in the meantime. Accordingly the petition was rejected without even numbering the I.A., the learned Counsel for the revision petitioner has left the matter to the discretion of this Court. But on the other hand, the learned Counsel for the 2nd respondent Mr. A. Rangacharyulu contended that there is no illegality in the impugned order and the same may not be disturbed. It is true that there does not appear to be any irregularity or illegality in passing the above order. For that reason there is no ground for disturbing the order and moreover the learned Counsel for the revision petitioner is not serious in pursuing the CRP inasmuch as he has left the matter to the discretion of this Court. I therefore do not consider it necessary to order fresh notices to the remaining respondents as their rights are not at all adjudicated upon in the impugned order. The C.R.P. is therefore fit to be dismissed and it is accordingly dismissed without costs.