Holding

Under Section 151 CPC, a court may recall an order permitting withdrawal of a suit even when no specific prayer for a fresh suit is made, and the High Court acted within its jurisdiction in doing so.

Summary

Madhukar Nowlakha entered into a sale agreement for premises that was later purportedly cancelled. He filed a suit for specific performance and, after settlement talks, applied to withdraw the suit without seeking leave to file a fresh suit. The trial court allowed the withdrawal but refused to recall the order when Nowlakha later claimed he was misled. The Calcutta High Court, invoking its inherent powers under Section 151 of the CPC, set aside the withdrawal order and restored the suit. The appellants challenged this restoration before the Supreme Court, arguing that the High Court lacked jurisdiction because no specific prayer for a fresh suit had been made. The Supreme Court held that a court may, in exercise of its inherent powers, recall an order permitting withdrawal of a suit even where no fresh‑suit prayer was filed, and therefore the High Court acted within its jurisdiction. The appeals were dismissed.

Issues considered

Whether the High Court had jurisdiction to restore a suit after the plaintiff had withdrawn it without a specific prayer for leave to file a fresh suit.
Whether Section 151 of the Code of Civil Procedure empowers a court to recall an order permitting withdrawal of a suit in the absence of a statutory provision.
Whether the trial court’s refusal to recall its own order was a jurisdictional error.

Legislation cited

Code of Civil Procedure, 1908s. 151, s. Order XXIII Rule I

Subjects

inherent powersSection 151 CPCwithdrawal of suitrecall of orderjurisdictionArticle 227specific performancecivil procedure

Judgment

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 ofCivil 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-
Held: Where by mistake suit is withdrawn, in exercise of inherent power court c
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when the same had been permitted to be withdrawn and no specific
prayer for leave to file a fresh suit on the same cause of action had been D
made nor granted.
'j.
Dismissing the appeals, the Court

HELD: 1. In exercise of inherent powers urider Section 151 of the
Code of Civil Procedure, upon holding that when through mistake the E
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.

. J.·-J.
2.1. From the order of Civil Judge, it is clear that he had no intention
of granting any leave for filing of a fresh suit on the same cause of action
G

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
~

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.
Therefore, it was not a question of lack of jurisdiction but the conscious
B 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
... A
ALTAMAS KABIR, J. Leave granted in both the matters.

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
-
/
~-
JET PLY WOOD PRIVATE LTD. v. MADHUKAR NOWLAKHA [ALTAMAS 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 parties, he no
longer wished to proceed with the suit. No leave was prayed for to file a fresh B
suit on the same cause of action.

On I Ith July, 2004, the learned Judge allowed the respondent No. 1 to
withdraw the suit, but without liberty to file a fresh suit on the same cause
of action.

On 23rd August, 2004, after termination of the agreement and after C
withdrawal of the suit filed by the Respondent No. I, Shri Biswarup Banerjee
and the other co-owners sold the premises to MIS. Jet Ply Wood Company
Limited, the petitioner in SLP (C) No. 10024/2005.

Within a month thereafter, on 24th September, 2004, Shri Madhukar D
Nowlakha applied to the learned Civil Judge (Senior Division) 9th Court at
Alipore, for recalling of the order by which the suit had been permitted to be
-i withdrawn on the ground that he had been misled into making such application
on account of the misrepresentation of Shri Biswarup Banerjee and the other
=co-owners that they would sell the property to him provided he withdrew the
suit. The learned Civil Judge (Senior Division) 9th Court at Alipore, rejected E
the said application filed by Shri Madhukar Nowlakha.

After rejection of his said application for recalling the order allowing
withdrawal of the suit, Shri Madhukar Nowlakha filed a second suit, being
Title Suit No. 87 of 2004, which is said to be pending. His prayer for interim
injunction in the said suit was rejected. Thereafter, on 23rd December, 2004, F
• 1 Shri Madhukar Nowlakha filed an application before the High Court at Calcutta
under Article 227 of the Constitution, being C.O. No.3982 of2004, challenging
the Trial Court's order dated 24th September, 2004, refusing to recall its
earlier order of llth February, 2004. While admitting the said application,
the High Court directed service of notice on the opposite parties and directed G
status quo to be maintained for a period of eight weeks.

On 4th February, 2005, the learned Single Judge of the Calcutta High
Court heard and allowed the revisional application, being C.O. 3982 of2004,
and restored Title Suit No. 32 of 2002 for trial before the Civil Judge, (Senior
Division) 9th Court at Alipore. H
764 SUPREME COURT REPORTS [2006] 2 S.C.R.

'A Since according to Shri Banerjee and the other co-owners of the
premises, their learned advocate was unable to attend the hearing on 4th
February, 2005, on account of personal reasons, they filed an application,
being CAN No. 1999 of 2005, befor·e ~he said learned Judge for recall of his
order dated 4th February, 2005. The same was heard and dismissed on contest
B on 14th March, 2005 with the learned Single Judge reaffirming his order
restoring the suit on 4th February, 2005.

Both these two Special Leave Petitions have been filed challenging the
first order of the learned Single Judge dated 4th February, 2005 restoring the
suit of respondent No. I. In addition,, Shri Banerjee and the other co-owners
C of the property have also questioned the legality of the second order passed
by the learned Single Judge on 14th March, 2005 rejecting their application
for recalling the order dated 4th February, 2005.

Since the Special Leave Petitions have been preferred against the
common order dated 4th February, 2005 of the Learned Single Judge of the
D Calcutta High Court, we have taken them up together for hearing and they
are being disposed of by this common judgment.

It will be evident from the facts mentioned hereinabove that the only
question to be decided in these appeals is whether the learned Single Judge
of the Calcutta High Court acted within his jurisdiction in restoring the suit
E of the Respondent No. I when the same had been withdrawn by the said
Respondent without any specific prayer for leave to file a fresh suit on the
same cause of action. In other words, we are required to consider whether
having regard to the provisions of Order XXIII Rule I of the Code of Civil
Procedure, the Learned Single Judge of the Calcutta High Court could restore
F the suit when no leave had been granted to file a fresh suit.

Although, in his order dated 4th February, 2005, the Learned Single t '
Judge was of the view that there was no reason to allow the withdrawal of
the suit without permission or liberty to file another suit, which reasoning we
are unable to agree with, since the plaintiff had not made any specific prayer
G for such leave, the same is not relevant for the purposi: of considering as to
whether the Court was within its jurisdiction to restore the suit despite leave
not having been asked for nor granted but specifically refused.

Appearing for the appellant, Mis. Jet Ply Wood Private Limited and
Ors., Mr. Mukul Rohtagi urged that having regard to the provisions of Order
H XXIII Rule I of the Code of Civil Procedure, in the absence of any prayer
JET PLY WOOD PRIVATE LTD. v. MADHUKAR NOWLAKHA [AL TAMAS KABIR, J.) 765

for leave to file a fresh suit and a specific prohibition having been included A •·
in the order of the Learned Judge permitting withdrawal of the suit, there was
no further scope either for the Trial Court or for the High Court to allow the
Respondent No. 1's application for withdrawal ofthe order passed by the
Trial Court on I Ith July, 2004, permitting withdrawal of the suit.

Mr. Rohtagi urged that the appellants had acquired lawful title to the B
suit premises and had incurred considerable costs in getting the property
vacated and starting construction thereon and it would be inequitable at this
i. y stage to allow the Respondent No. I's application for restoration of the suit.

Mr. Rohtagi submitted that the order of the Learned Single Judge of the
Calcutta High Court impugned in these appeals was erroneous and was liable C
to be set aside.

Mr. Abhishek Manu Singhvi, learned senior counsel, who appeared for
the Respondent No. I in the first two appeals on the other hand urged that
pursu~t to the agreement arrived at between Shri Nowlakha and the owners D
of the property, Shri Nowlakha had taken steps to get the property vacated
and made ready for construction. However, on the assurance given by the
owners of the property, the respondent No. I had agreed to withdraw his suit
which fact will be reflected from the application filed by him before the
Learned Civil Judge (Senior Division) 9th Court at Alipore for withdrawal of
~~ E
Mr. Singhvi urged that the owners of the property had resorted to
subterfuge to wriggle out of the agreement and had misled the Respondent
No. I into withdrawing the suit and it is on account of such misrepresentation
that the Respondent No. I was entitled in law to have his suit restored.
F
Mr. Singhvi submitted that it would not be correct to contend that the
Learned Trial Judge did not have the jurisdiction to withdraw the order
passed by him permitting the respondent No. I to withdraw his suit. What was
relevant was whether in the circumstances such a power should have been
exercised or not. Since the learned Trial Judge had chosen not to exercise G
such power, the High Court stepped in, in exercise of its powers under
Article 227 of the Constitution to restore the suit filed by the Respondent
No. I. Mr. Singhvi urged that while dismissing the application filed by Shri
Biswarup Banerjee and others recalling the order dated 4th February, 2005,
the learned Single Judge of the Calcutta High Court in his order dated 11th
March, 2005, had referred to and relied upon a Division Bench judgment of H
766 SUPREME COURT REPORTS [2006] 2 S.C.R.

A the Calcutta High Court in the case of Rameswar Sarkar v. State of West
Bengal & Ors., reported in AIR (1986) Calcutta 19, in support of his order
that when through mistake a plaintiff withdraws his suit, the court is not
powerless to set aside such order of dismissal in exercise of inherent powers
even if no leave to file a fresh suit had been prayed for.

B Mr. Singhvi llrged that the order passed by the learned Single Judge of
the Calcutta High Court and impugned in these appeals did not call for any
interference by this Court.

Mr. Soli J. Sorabjee, learned senior counsel for the Respondent No. I
C in the second set of appeals while adopting Mr. Singhvi's submission, added
that since the Learned Single Judge of the Calcutta High Court had acted
within his jurisdiction to do justice between the parties, the same did not
warrant any interference by this Court. Mr. Sorabjee submitted that this was
not a case of the Court having acted without jurisdiction but having acted in
the exercise of its inherent powers to do justice between the parties.
D
As indicated hereinbefore, the only point which falls for our
consideration in these appeals is whether the Trial Court was entitled in law
to recall the order by which it had allowed the plaintiff to withdraw his suit.

From the order of the Learned Civil Judge (Senior Division) 9th Court
E 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 itself which indicates that the
Court did not find any scope to ex1:rcise its inherent powers under Section
F 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 but the conscious decision of the Court
G not to exercise such jurisdiction in favour of the plaintiff.

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
H reference has been made to a bench decision of the Calcutta High Court in
JET PLYWOOD PRIVATE LTD. v. MADHUKAR NOWLAKHA [ALTAMAS KABIR, J.]767

the case of Rameswar Sarkar (supra) which, in our view, correctly explains A
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 B
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: C
"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 litigation and
consequently for providing the procedure for them."
D
Based on the aforesaid principle, the Division Bench of the Calcutta
High Court, in almost identical circumstances in Rameswar Sarkar 's case,
allowed the application for withdrawal of the suit in exercise of inherent
powers under Section 151 of the 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. E

We are of the view that the law having been correctly stated in the
aforesaid case, the learned Single Judge of the Calcutta High Court in making
an order on the same lines did not commit any error of jurisdiction which
calls for any interference in these appeals.
F
The appeals are, therefore, dismissed, but without any order as to costs.

N.J. Appeals dismissed.