JET PLY WOOD PRIVATE LTD. AND ANR. versus MADHUKAR NOWLAKHA AND ORS.

Citation: [2006] 2 S.C.R. 761 · Decided: 28-02-2006 · Supreme Court of India · Bench: H.K. SEMA · Disposal: Dismissed

Judgment (excerpt)

1 
JET PLY WOOD PRIVATE LTD. AND ANR. 
A 
v. 
MADHUKAR NOWLAKHA AND ORS. 
FEBRUARY 28, 2006 
[H.K. SEMA AND ALTAMAS KABIR, JJ.) 
B 
~ 
y 
Code of Civil Procedure, 1908-Section 151-Inherent powers-Exercise 
> 
of-Court permitting withdrawal of suit, however no prayer made for leave to 
file a fresh suit .on the same cause of action nor granted-Recall of order- c 
Held: Where by mistake suit is withdrawn, in exercise of inherent power court 
can recall the order permitting withdrawal of suit . 
... 
The question which arose for consideration in these appeals was 
whether the High Court acted within its jurisdiction in restoring the suit 
when the same had been permitted to be withdrawn and no specific D 
prayer for leave to file a fresh suit on the same cause of action had been 
made nor granted. 
'j. 
Dismissing the appeals, the Court 
HELD: 1. In exercise of inherent powers urider Section 151 of the E 
Code of Civil Procedure, upon holding that when through mistake the 
plaintiff had withdrawn the suit, the Court would not be powerless to set 
aside the order permitting withdrawal of the suit. Therefore, Single Judge 
of High Court did not commit any error of juris'1ictton which calls for 
any interference. 
F 
• 1 
· Rameswar Sarkar v. State of West Bengal & Ors,, AIR (1986) Calcutta 
I 
19, approved. 
Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal, AIR (1962) 
SC 527, relied on. 
G 
.. 
2.1. From the order of Civil Judge, it is clear that he had no intention 
J.·-J. 
of granting any leave for filing of a fresh suit on the same cause of action 
while allowing the plaintiff to withdraw his suit. However, that does not 
mean that by passing such an order the court divested itself of its inherent 
power to recall its order, which fact is also evident from the order itself 
Ml 
H 
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762 
SUPREME COURT REPORTS 
[2006] 2 S.C.R. 
A whil;h 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, the 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. 
B 
Therefore, it was not a question of lack of jurisdiction but the conscious 
decision of the Court not to exercise such jurisdiction in favour of the 
plaintiff. (766-E-F( 
2.2. There is no doubt that in the absence of a specific provision in 
the Code of Civil Procedure providing for the filing of an application for 
'-
• 
c recalling of an order permitting withdrawal of a suit, the provisions of 
Section 151 of the Code of Civil Procedure can be resorted to in the 
interest of justice. 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. (767-A-C( 
D 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1367 of2006. 
From the Final Judgmemt and Order dated 4.2.2005 of the Calcutta 
High Court in C.O. No. 3982 of 2004. 
E 
Mukul Rohtagi, Sanjeev Sc~n, Jai Prakash Pandey and Goodwill lndeevar 
. ..___
for the Appellants. 
Soli J. Sorabjee, Abhishek Manu Singhvi, Huzefa Ahmadi, Suchit 
Mohanty and Shibashish Misra for the Respondents. 
F 
The Judgment of the Court was delivered by 
ALT AMAS KABIR, J. Leave granted in both the matters. 
... 
A 
One Madhukar Nowlakha, the respondent No. I in these appeals, entered 
into an agreement for sale in respect of premises No. 4A, Lansdowne Place, 
G P.S. Lake, Kolkata-700029, together with the building and structures thereon, 
with one Shri Biswarup Banerjee and five others on 20th September, 1988. 
Inasmuch as, the said agreement was allegedly not acted upon for a long 
-
time, the same was purportedly cancelled by the owners on 15th June, 2002. · 
;. . 
On 24th September, 2003, Shri Madhukar Nowlakha filed Title Suit 
H No. 32 of 2003 in the Court of Civil Judge, (Senior Division) 9th Court at 
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JET PLY WOOD PRIVATE LTD. v. MADHUKAR NOWLAKHA [ALT AMAS KABIR, J.J 763 
Alipore, for specific performance of the agreement purported to have been A 
cancelled and for temporary injunction to restrain the petitioners from 
alienating the suit premises. Thereafter, on 30th October, 2003, the said 
Respondent No. I applied to the Court for leave to, withdraw the suit on the 
ground that since there were talks of settlement° between the 

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