Supreme Court of India
RAM PRAKASH AGARWAL & ANR.versusGOPI KRISHAN (DEAD THROUGH L.RS.) & ORS.
- Citation
- 2013 INSC 239
- Decided
- 11 April 2013
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
An application under Order IX Rule 13 CPC is not maintainable by a non‑party, and Section 151 CPC may be invoked only when fraud is against the court, not when it is against a party; consequently the High Court’s order is set aside.
Summary
The land in question was jointly owned and was acquired under the Land Acquisition Act, 1894. One co‑owner (the appellants) filed a reference under Section 18 of the Act for enhanced compensation without impleading the other co‑owner (the respondent). The Reference Court awarded compensation to both parties, after which the respondent, who was not a party to the reference proceedings, filed an application under Order IX Rule 13 read with Section 151 of the CPC to set aside the ex‑parte award. The Tribunal rejected the application; the High Court set aside the award, holding that Section 151 could be invoked. The Supreme Court held that a non‑party cannot file an Order IX Rule 13 application and that Section 151 CPC can be used only when fraud is committed upon the court, not when it is against a party, thereby setting aside the High Court’s order.
Issues considered
- Whether an application under Order IX Rule 13 CPC is maintainable by a person who was not a party to the proceedings.
- Whether the inherent powers under Section 151 CPC can be exercised to set aside an ex‑parte decree in the present circumstances.
- Whether the provisions of the CPC apply to proceedings before the Reference Court under the Land Acquisition Act.
- Whether fraud upon the court versus fraud upon a party determines the availability of Section 151 relief.
- Whether a person aggrieved can seek impleadment or apportionment before the Reference Court.
Legislation cited
- Code of Civil Procedure, 1908s. 151, s. Order I Rule 10, s. Order IX Rule 13
- Land Acquisition Act, 1894s. 18, s. 30, s. 9
- U.P. Nagar Mahapalika Adhiniyam, 1959s. 381
Subjects
Land acquisitionCompensation enhancementOrder IX Rule 13Section 151 CPCInherent powersEx‑parte decreeFraud upon courtNon‑party standingReference CourtApportionment
Judgment
[2013] 6 S.C.R. 127
RAM PRAKASH AGARWAL & ANR. A
v.
GOPI KRISHAN (DEAD THROUGH L.RS.) & ORS.
(Civil Appeal No. 2798 of 2013)
APRIL 11, 2013
B
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Code of Civil Procedure, 1908:
c
Or. IX r. 13 rl.w. s.151 - Land acquisition proceedings -
Land in joint ownership of two persons, acquired - Reference
uls. 18 of Land Acquisition Act for enhancement of
compensation by one of the owners - Without impleading the
other owner as party - Grant of enhanced compensation by D
the Reference Court - Application by the other owner u!Or.
IX r. 13 rlw.s.151 - Maintainability of - Held: Application u!Or.
IX r. 13 not maintainable by a non-party to the· proceedings -
However, such relief can be given in exercise of inherent
powers uls. 151. if the order has been obtained by playing E
fraud upon the Court - But, the same is not maintainable if
the fraud is committed upon the party - In such eventuality,
the aggrieved party can seek remedy by filing independent
suit - In the instant case, the Reference Court could not have
permitted the application u/Or. IX, r. 13 - It could not have
permitted the application even in exercise of powers uls. 151, F
because in the instant case, the fraud was played upon the
party and not the Court - Land Acquisition Act, 1894.
s. 151 - Inherent powers of the Court- Nature and scope
of - Discussed. G
/.and Acquisition Act, 1894 - Reference Court -
Jurisdiction of - A person aggrieved can maintain an
application for reference ulss. 18 or 30, but cannot make an
127 H
128 SUPREME COURT REPORTS [2013] 6 S.C.R.
A application for impleadment or apportionment before the
Reference Court.
Respondent No.1 and predecessor-in-interest of the
appellants were the joint owners of the land in question.
The land was acquired under Land Acquisition Act.
8
Respondent No.1 approached the authorities concerned
to claim the compensation amount. In that case,
predecessor-in-interest of the appellants was a party and
after her death her legal heirs were brought on record.
C In the meantime, appellants filed a Reference u/s. 18 of
the Acquisition Act, for enhancement of the
compensation in respect of her half share. In that case,
respondent No.1 was not made a party. The Tribunal held
that the appellants were entitled to receive the
compensation amount, including the enhanced amount.
D Respondent No.1, thereafter, filed an application under
Order IX r. 13 r/w. s.151 CPC for the purpose of setting
aside the ex-parte award. The Tribunal rejected the
application. Respondent No.1 preferred writ petition,
challenging the order of the Tribunal and the same was
E allowed by the High Court. Hence the present appeals.
The questions for consideration before the Court
were whether an application under Or. IX r.13 CPC is
maintainable by a person, who was not party to the suit
F and if such application is not maintainable, whether such
. relief can be granted in exercise of the inherent powers
u/s. 151 CPC; and whether the provisions of CPC are
applicable to the Land acquisition proceedings.
Allowing the appeal, the Court
G
HELD: 1. An application under Order IX Rule 13 CPC
cannot be filed by a person who was not initially a party
to the proceedings. In exceptional circumstances, the
Court may exercise its inherent powers, apart from Order
H IX CPC to set aside an ex parte decree. An ex-parte
RAM PRAKASH AGARWAL v. GOPI KRISHAN\DEAD 129
THROUGH L.RS.)
IX CPC to set aside an ex parte decree. An ex-parte A
decree passed due to the non-appearance of the counsel
of a party, owing to the fact that the party was not at fault,
can be set aside in an appeal preferred against it. So is
the case, where the absence of a defendant is caused on
account of a mistake of the Court. An application under B
Section 151 CPC will be maintainable, in the event that
an ex parte order has been obtained by fraud upon the
court or by collusion. The provisions of Order IX CPC
may not be attracted, and in such a case, the Court may
either restore the case, or set aside the ex parte order in c
the exercise of its inherent powers. [Paras 9 and 20(i)]
[147-A; 140-C-E]
Smt. Santosh Chopra vs. Teja Singh and Anr. AIR 1977
Del 110; Smt. Suraj Kumari vs. District Judge, Mirzapur and
Ors. AIR 1991 All 75 - relied on. D
2. Section 151 CPC is not a substantive provision
that confers the right to get any relief of any kind. It is a
mere procedural provision which enables a party to have
the proceedings of a pending suit conducted in a manner E
that is consistent with justice and equity. The court can
do justice between the parties before it. Similarly,
inherent powers cannot be used to re-open settled
matters. The inherent powers of the Court must, to that
extent, be regarded as abrogated by the Legislature. A F
provision barring the exercise of inherent power need not
be express, it may even be implied. Inherent power
cannot be used to restrain the execution of a decree at
the instance of one who was not a party to suit. Such
power is absolutely essential for securing the ends of G
justice, and to overcome the failure of justice. The Court
under Section 151 CPC may adopt any procedure to do
justice, unless the same is expressly prohibited. [Para 8]
[139-8-D]
3. The consolidation of suits has not been provided H
130 SUPREME COURT REPORTS [2013] 6 S.C.R.
A for under any of the provisions of CPC, unless there is a
State amendment in this regard. Thus, the same can be
done in exercise of the powers under Section 151 CPC,
where a common question of fact and law arise therein,
and the same must also not be a case of misjoinder of
B parties. The non-consolidation of two or more suits is
likely to lead to a multiplicity of suits being filed, leaving
the door open for conflicting decisions on the same
issue, which may be common to the two or more suits
that are sought to be consolidated. Non-consolidation
c may, therefore, prejudice a party, or result in the failure
of justice. Inherent powers may be exercised ex debito
justitiae in those cases, where there is no express
provision in CPC. The said powers cannot be exercised
in contravention of, or in conflict with, or upon ignoring
0 express and specific provisions of the law. (Para 8] (139-
E-H]
B. V. Patankar and Ors. vs. C. G. Sastry AIR 1961 SC 272:
1961 SCR 91 ; Ram Chandra Singh vs. Savitri Devi and Ors.
AIR 2004 SC 4096; Jet Plywood Pvt. Ltd. vs. Madhukar
E Nowlakha AIR 2006 SC 1260: 2006 (2) SCR 761; State Bank
of India vs. Ranjan Chemicals Ltd. and Anr. (2007) 1 'SCC
97: 2006 (7) Suppl. SCR 145; State of Haryana and Ors.
vs. Babu Singh (2008) 2 SCC 85; Durgesh Sharma vs.
Jayshree AIR 2009 SC 285: 2008 (13) SCR 1056; Nahar
F Industrial Enterprises Ltd. vs. H.S.B.C. etc. etc. (2009) 8 SCC
646: 2009 (12) SCR 54; Rajendra Prasad Gupta vs. Prakash
Chandra Mishra and Ors. AIR 2011 SC 1137: 2011
(1) SCR 321 - relied on.
4.1. Where a Co,urt employs a procedure to do
G something that it never intended to do, and there is
miscarriage of justice, or an abuse of the process of
Court, the injustice so done must be remedied, in
accordance with the principle of actus curia neminem
gravabit - an act of the Court shall prejudice no person.
H [Para 9] (140-F-G]
RAM PRAKASH AGARWAL v. GOPI KRISHAN (DEAD 131
THROUGH L.RS.)
4.2. The inherent powers enshrined under Section A
151 CPC can be exercised only where no remedy has
been provided for in any other provision of the CPC. In
the event that a party has obtained a decree or order by
playing a fraud upon the court, or where an order has
been passed by a mistake of the court, the court may be B
justified in rectifying such mistake, either by recalling the
said order, o·r by passing any other appropriate order.
However, inh,erent powers cannot be used in conflict of
any other existing provision, or in case a remedy has
been provided for by any other provision of the CPC. c
Moreover, in the event that a fraud has been played upon
a party, the same may not be a case where inherent
powers can be exercised. [Para 13] [143-C-E]
5. In the e~ent that an order has been obtained from
the Court by playing fraud upon it, it is always open to D
the Court to rec11ll the said order on the application of the
person aggrieved, and such power can also be exercised
by the appellate court. But where the fraud has been
committed upon ·a party, the court cannot investigate
such a factual issµe, and in such an eventuality, a party E
has the right to get the said judgment or order set aside,
by filing an Independent suit. [Paras 20(iii) and (iv)] [147-
C-D]
6. In the instant case, the proceedings stood
concluded so far .as the court of first instance is F
concerned, and that the respondent was not the party
before the said coui;t. Permitting an application under
Order IX Rule 13 CPC by a non-party, would amount to
adding a party to the case, which is provided for under
Order I Rule 10 CPC, or setting aside the ex-parte G
judgment and decree, i.e. seeking a declaration that the
decree is null and void for any reason, which can be
sought independently by such a party. In the instant case,
as the fraud, if any, as alleged, has been committed upon
a party, and not upon the court, the same is not a case H
132 SUPREME COURT REPORTS [2013] 6 S.C.R.
A where Section 151 CPC could be resorted to by the court,
to rectify a mistake, if any was made. [Para 16] [144-F-H;
145-A]
May George vs. Special Tahsi/dar and Ors. (2010) 13
SCC 98: 2010 (7) SCR 204 - relied on.
B
7. A person who has not made an application before
the Land Acquisition Collector, for making a reference
under Section 18 or 30 of the Land Acquisition Act cannot
get himself impleaded directly before the Reference
c Court. A person aggrieved may maintain an application
before the Land Acquisition Collector for reference under
Section 18 or 30 of the Land Acquisition Act but cannot
make an application for impleadment or apportionment
before the Reference Court. [Paras 19 and 20(v)] [146-G;
D 147-E]
Ajjam Linganna and Ors. vs. Land Acquisition Officer,
RDO, Nizamabad and Ors. (2002) 9 SCC 426; Prayag
Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. vs.
Allahabad Vikas Pradhikaran and Anr. (2003) 5 SCC 561:
E 2003 (3) SCR 567; Parmatha Nath Malik Bahadur vs.
Secretary of State AIR 1930 PC 64: Mohammed Hasnuddin
vs. The State of Maharashtra AIR 1979 SC 404: 1979 (2)
SCR 265; Kothamasu Kanakarathamma and Ors. vs. State
of Andhra Pradesh and Ors. AIR 1965 SC304: 1964 SCR
F 294 - relied on.
Du/him Suga Kuer and Anr. vs. Deorani Kuer and Ors.
AIR 1952 Pat 72; Surajdeo vs. Board of Revenue U.P.
Allahabad and Ors.AIR 1982 All 23; Manohar Lal Chopra vs.
Rai Bahadur Rao Raja Seth Hira/al AIR 1962 SC 527: 1962
G Suppl. SCR 450; Indian Bank vs. Mis. Satyam Fibres
(India) Pvt. Ltd. AIR 1996 SC 2592: 1996 (4) Suppl. SCR
464; Dadu Dayal Mahasabha vs. Sukhdev Arya and Anr.
(1990) 1 sec 189: 1989 (2) Suppl. SCR 233; Dr. G.H.
Grant vs. State of Bihar AIR 1966 SC 237: 1965 SCR 576;
H Shyamali Das vs. Illa Chowdhry and Ors. AIR 2007 SC 215:
RAM PRAKASH AGARWAL v. GOPI KRISHAN (DEAD 133
THROUGH L.RS.}
2006 (8) Suppl. SCR 310 - referred to. A
Case Law Reference:
AIR 1977 Del 110 relied on Para 4
AIR 1991 All 75 relied on Para 5 B
AIR 1952 Pat 72 referred to Para 6
AIR 1982 All 23 referred to Para 7
1961 SCR 591 relied on Para 8
c
2004 SC 4096 relied on Para 8
2006 (2) SCR 761 relied on Para 8
2006 (7 ) Suppl. SCR 145 relied on Para 8
(2008) 2 sec 85 relied on Para 8 D
2008 (13} SCR 1056 relied on Para 8
2009 (12) SCR 54 relied on Para 8
2011 (1) SCR 321 relied on Para 8 E
1962 Suppl. SCR 450 referred to Para 10
1996 (4) Suppl. SCR 464 referred to Para 11
1989 (2) Suppl. SCR 233 referred to Para 12
F
2010 (7) SCR 204 relied on Para 17
1965 SCR 576 referred to Para 17
2006 (8) Suppl. SCR 310 referred to Para 18
G
(2002) 9 sec 426 relied on Para 19
2003 (3) SCR 567 relied on Para 19
AIR 1930 PC 64 relied on Para 19
1979 (2) SCR 265 relied on Para 19
134 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 1964 SCR 294 relied on Para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2798 of 2013.
From the Judgment and Order dated 20.10.2011 of the
B High Court of Judicature at Allahabad, Lucknow Bench,
Lucknow in Writ Petition No. 764 of 2002 (MS).
WITH
C.A. No. 2799 of 2013.
c Pradeep Kant, Rakesh Dwivedi, Deepak Goel, Vipin
Kumar, E.C. Agrawala, Divyansu Sahay, Radhika Gautam, Tara
Chandra Sharma, Neelam Sharma, Rupesh Kumar, Arvind
Kumar, Laxmi Arvind, Poonam Prasad, Pradeep Kumar
Mathur, T. Anamika for the appearing parties.
D
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. These appeals have been
preferred against the impugned judgment and order, dated
20.10.2011, passed by the High Court of Allahabad, (Lucknow
E Bench) in Writ Petition No.764 of 2002 (MS), by way of which,
the High Court has set aside the order of the trial court dated
20.2.2002 by which it had rejected the application under Order
IX Rule 13 read with Section 151 of the Code of Civil
Procedure, 1908 (hereinafter referred to as the 'CPC'), for
F setting aside the judgment and decree dated 22.5.2000 in
Misc. Case No. 66 of 1999.
2. Facts and circumstances giving rise to these appeals
are that:
G A. The dispute pertains to the ownership of shop no.53/
11 (old number) corresponding to its new number, i.e. 53/8,
Nayayaganj, Kanpur Nagar. Janki Bibi (1st) daughter of Har
Dayal, was married to one Durga Prasad, son of Dina Nath.
Radhey Shyam was the adopted son of Durga Prasad, whose
H son Shyam Sunder was married to Janki Bibi (2nd). Shyam
RAM PRAKASH AGARWAL v. GOPI KRISHAN 135
(DEAD THROUGH L.RS.) [DR. B.S. CHAUHAN, J.]
Sunder died in the year 1914. Thus, Radhey Shyam created a A
life interest in the property in favour of Janki Bibi (2nd), by way
of an oral Will, which further provided that she would have the
right to adopt a son only with the consent of Mohan Lal, the
grand son of Har Dayal. Gopi Krishan, the great grand son of
Mohan Lal, claims to have been adopted by Janki Bibi (2nd), B
with the consent of Mohan Lal, and as regards the same, a
registered document was also prepared.
B. Gopi Krishan filed Regular Suit No.45 of 1956 against
Smt. Janki Bibi (2nd), in the Court of the Civil Judge Mohanlal C
Ganj, Lucknow, seeking the relief of declaration, stating that
Janki Bibi was only a life estate holder in respect of the
properties shown in Schedule 'A', and that further, she was not
entitled to receive the compensation or rehabilitation grant
bonds with respect to the village Nawai Perg., Jhalotar Ajgain,
Tehsil Hasangunj, District Unnao. He stated all this, claiming D
himself to be her adopted son.
C. Janki Bibi (2nd) contested the suit, denying the
aforesaid adoption. However, the suit was decreed vide
judgment and decree dated 23.4.1958, holding that while Smt. E
Janki Bibi (2nd) was in fact the life estate holder of Radhey
Shyam's property, she was also entitled to receive the said
compensation in respect of the property in question herein.
/
D. That the property bearing no.264/1-53 admeasuring 17
F
bighas, 2 biswas, 2 biswansi and 19 kachwansi to the extent
of half share situated in village Suppa Rao, Pargana Tehsil,
District Lucknow, was owned by Radhey Shyam. The aforesaid
suit land was acquired by the State Government for Uttar
Pradesh Avas Evam Vikas Parishad (hereinafter referred to
as, the 'Parishad'), for the development of the Talkatora Road G
Scheme, Lucknow, vide notification under Section 4 of the Land
Acquisition Act, 1894 (hereinafter referred to as 'the Act, 1894')
dated 20.10.1962. The possession of the said land was taken
on 30.12.1971, after completion of certain formalities.
H
136 SUPREME COURT REPORTS (2013] 6 S.C.R.
A E. Gopi Krishan approached the Nagar Mahapalika
Tribunal, constituted under the Municipal Corporation Act, 1959,
under Sections 18/30 of the Act, 1894, by filing Misc. Case
No.269 of 1983, claiming compensation in respect of the
properties acquired by the State of U.P., on the ground that he
B possessed the legal right to do so, as a vested remainder,
under the judgment and decree dated 23.4.1958. In the said
case, Sm!. Janki Bibi (2nd) was a party and after her death,
Madhuri Saran and his legal heirs were also brought on record,
pursuant to the Will of Janki Bibi as a legatee.
c F. In the meanwhile, Madhuri Saran, predecessor in
interest of the present appellants, filed a Reference under
Section 18 of the Act, 1894 which was registered as
Miscellaneous Case No.66 of 1999, for enhancement of
compensation in respect of half share in the aforesaid suit land.
D During the pendency of the aforesaid proceedings, Madhuri
Saran died and his legal heirs were substituted. Gopi Krishan,
respondent no.1 was not impleaded as a party. The Tribunal
vide judgment and order dated 22.5.2000 held that the opposite
parties were entitled to receive compensation (including
E enhancement) relating to the aforesaid property. In pursuance
of the said Reference award, the appellants applied for
withdrawal of the enhanced compensation. When respondent
no.1 learnt about the order dated 22.5.2000, he filed an
application under Order IX Rule 13 read with Section 151 CPC,
F for the purpose of setting aside the said award dated
22.5.2000. The Tribunal, vide order dated 20.2.2002, rejected
the said application, on the ground that an application under
Order IX Rule 13 can only be filed by a person who was a party
to the proceedings in which such an order was passed, and
G that such an application was not maintainable at the behest of
a stranger.
G. Aggrieved, the respondents preferred a writ petition
before the High Court, which has been allowed by the Court
holding, that while an application under Order IX Rule 13 was
H
RAM PRAKASH AGARWAL v. GOPI KRISHAN (DEAD137
THROUGH L.RS.) [DR. B.S. CHAUHAN, J.]
not maintainable, the said award should have been set aside A
in exercise of its powers under Section 151 CPC, as the same
was required to be done, in order to do substantial justice
between the parties. Hence, these appeals.
3. We have heard Shri S. Naphade and Shri Pradip Kant, B
learned counsel appearing for the appellants and Shri Rakesh
Dwivedi, learned senior counsel appearing for the respondents,
as regards the issues, particularly with respect to the extent that
the provisions of the CPC are applicable to these proceedings,
and further, in relation to whether an application under Order C
IX Rule 13 CPC can be maintained by a person who was never
a party to the suit. and lastly, in the event that such an
application is not maintainable, whether such relief can be
granted in exercise of the inherent powers under Section 151
CPC.
D
4. In Smt. Santosh Chopra v. Teja Singh & Anr., AIR
1977 Del 110, the Delhi High Court dealt with the issue with
respect to whether a non-party/stranger has any locus standi
to move an application under Order IX Rule 13 CPC, to get an
ex-parte decree set aside, he would be adversely affected by E
such decree. In the said case, the Rent Controller had held, that
it would be patently unjust to bar any remedy for such a landlord,
since the applicant was the assignee of the rights of the
previous landlord, therefore, he could apply for setting aside of
the decree as such. The Delhi High Court came to the F
conclusion that the statutory provisions of Order IX Rule 13
CPC itself, refer to the defendant in an action, who alone can
move an application under Order IX Rule 13 CPC. Therefore,
a person who is not a party, despite the fact that he might be
interested in the suit, is not entitled to move an application G
under the rule. In fact he had no locus standi to have the order
set aside. Such an order could not be passed even under
Section 151 CPC. In view thereof, the order passed by the Rent
Controller was reversed.
H
138 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 5. In Smt. Suraj Kumari v. District Judge, Mirzapur & Ors.,
AIR 1991 All 75, the Allahabad High Court dealt with a similar
issue, and rejected the contention that at the instance of a
stranger, a decree could be reopened in an application under
Order IX Rule 13 read with Section 151 CPC, even if such
B decree is based on a compromise, or has been obtained by
practising fraud upon the court, to the prejudice of the said
stranger.
6. However, in Du/him Suga Kuer & Anr. v. Deorani Kuer
& Ors., AIR 1952 Pat 72, the Patna High Court dealt with the
C provisions of Section 146 CPC, which contemplate a change
of title after the decree has been awarded and held that, the
true test is whether the transferee is affected by the order or
decree in question. Where, the transfer is subsequent to the
ex parte decree, the transferee would certainly be interested
D in setting aside the ex parte decree.
7. In Surajdeo v. Board of Revenue U.P. Allahabad &
Ors., AIR 1982 All 23, the Allahabad High Court dealt with an
issue where an application was filed by a non-party, under
E Order IX Rule 13 CPC to set aside the ex parte decree. The
Court held:
"the petitioner was vitally interested in the decree passed
in favour of the contesting opposite parties which he
wants to be vacated. If the decrees in favour of the
F contesting opposite parties remain intact, the petitioner's
right of irrigating his fields from the disputed land shall
be vitally affected. In such a circumstance even if the
petitioner is assumed to have no locus standi to move
the application for setting aside the ex parte decrees in
G favour of the contesting opposite parties, it cannot be said
that the trial court had no jurisdiction to set aside the ex
parte decrees which were against the provisions of
law and were the result of collusion and fraud
practiced by the plaintiff and the defendants in the
H suits in which decrees recognizing the claim of the
RAM PRAKASH AGARWAL v. GOPI KRISHAN (DEAD 139
THROUGH L.RS.) [DR. B.S. CHAUHAN, J.]
contesting opposite parties in the disputed land as Sirdar A
were passed."
(Emphasis added)
8. Section 151 CPC is not a substantive provision that
confers the right to get any relief of any kind. It is a mere B
procedural provision which enables a party to have the
proceedings of a pending suit conducted in a manner that is
consistent with justice and equity. The court can do justice
between the parties before it. Similarly, inherent powers
cannot be used to re-open settled matters. The inherent powers C
of the Court must, to that extent, be regarded as abrogated by
the Legislature. A provision barring the exercise of inherent
power need not be express, it may even be implied. Inherent
power cannot be used to restrain the execution of a decree at
the instance of one who was not a party to suit. Such power is D
absolutely essential for securing the ends of justice, and to
overcome the failure of justice. The Court under Section 151
CPC may adopt any procedure to do justice, unless the same
is expressly prohibited.
E
The consolidation of suits has not been provided for under
any of the provisions of the Code, unless there is a State
amendment in this regard. Thus, the same can be done in
exercise of the powers under Section 151 CPC, where a
common question of fact and law arise therein, and the same
must also not be a case of misjoinder of parties. The non- F
consolidation of two or more suits is likely to lead to a
multiplicity of suits being filed, leaving the door open for
conflicting decisions on the same issue, which may be common
to the two or more suits that are sought to be consolidated. Non-
consolidation may, therefore, prejudice a party, or result in the G
failure of justice. Inherent powers may be exercised ex debito
justitiae in those cases, where there is no express provision
in CPC. The said powers cannot be exercised in contravention
of, or in conflict with, or upon ignoring express and specific
provisions of the law. (See: B. V. Patankar & Ors. v. C. G. Sastry, H
140 SUPREME COURT REPORTS [2013] 6 S.C.R.
A AIR 1961 SC 272; Ram Chandra Singh v. Savitri Devi & Ors.,
AIR 2004 SC 4096; Jet Plywood Pvt. Ltd. v. Madhukar
Nowlakha, AIR 2006 SC 1260; State Bank of India v. Ranjan
Chemicals Ltd. & Anr., (2007) 1 SCC 97; State of Haryana &
Ors. v. Babu Singh, (2008) 2 SCC 85; Durgesh Sharma v.
B Jayshree, AIR 2009 SC 285; Nahar Industrial Enterprises Ltd.
v. H.S.B.C. etc. etc., (2009) 8 SCC 646; and Rajendra Prasad
Gupta v. Prakash Chandra Mishra & Ors., AIR 2011SC1137).
9. In exceptional circumstances, the Court may exercise
its inherent powers, apart from Order IX CPC to set aside an
C ex parte decree.
An ex-parte decree passed due to the non appearance
of the counsel of a party, owing to the fact that the party was
not at fault, can be set aside in an appeal preferred against it.
D So is the case, where the absence of a defendant is caused
on account of a mistake of the Court. An application under
Section 151 CPC will be maintainable, in the event that an ex
parte order has been obtained by fraud upon the court or by
collusion. The provisions of Order IX CPC may not be attracted,
E and in such a case the Court may either restore the case, ot
set aside the ex parte order in the exercise of its inherent
powers.
There may be an order of dismissal of a suit for default of
appearance of the plaintiff, who was in fact dead at the time
F that the order was passed. Thus, where a Court employs a
procedure to do something that it never intended to do, and
there is miscarriage of justice, or an abuse of the process of
Court, the injustice so done must be remedied, in accordance
with the principle of actus curia neminem gravabit - an act of
G the Court shall prejudice no person.
10. In Manohar Lal Chopra v. Rai Bahadur Rao Raja
Seth Hirata/, AIR 1962 SC 527, this Court examined the issue
with respect to whether, the court is competent to grant interim
H
RAM PRAKASH AGARWAL v. GOPI KRISHAN (DEAD 141
THROUGH L.RS.) [DR. B.S. CHAUHAN, J.]
relief under Section 151 CPC, when the same cannot be A
granted under Order XXXIX Rules 1 & 2 CPC, and held :
"There is difference of opinion between the High Courts
on this point. One view is that a Court cannot issue an
order of temporary injunction if the circumstances do not B
fall within the provisions of Order 39 of the Code ... ... the
other view is that a Court car. issue an interim injunction
under circumstances which are not covered by Order 39
of the Code, if the Court is of opinion that the interests of
justice require the issue of such interim C
injunction; ...... We are of opinion that the latter view is
correct and that the Court have inherent jurisdiction
to issue temporary injunction in circumstances which
are not covered by the provisions of Order 39, C.P.C.,
there is no expression in Section 94 which expressly
prohibits the issue of temporary injunction in D
circumstances not covered by Order 39 or by any rule
made under the Code. 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 E
litigation and consequently for providing the procedure
for them. The effect of the expression 'if it is so prescribed'
is only this that when the rule prescribes the
circumstances in which the temporary injunction can be
issued, ordinarily the Court is not to use its inherent F
powers to make the necessary orders in the interests
ofjustice, but is merely to see whether the circumstances
of the case bring it within the prescribed rule. If the
provisions of Section 94 were not there in the Code, the
Court could still issue temporary injunction, but it could G
do that in the exercise of its inherent jurisdiction. No party
has a right to inherent jurisdiction only when it
considers it absolutely necessary for the ends of
justice to do so. It is in the incidence of the exercise of
the power of the Court to issue temporary injunction that H
142 SUPREME COURT REPORTS (2013] 6 S.C.R.
A the provisions of Section 94 of the Code have their effect
and not in taking away the right of the Court to exercise
the inherent power."
(Emphasis added)
B 11. In Indian Bank v. Mis. Satyam Fibres (India) Pvt. Ltd.,
AIR 1996 SC 2592, this Court dealt with a similar case and
observed, that fraud not only affects the solemnity, regularity and
orderliness of the proceedings of the court, but that it also
amounts to abuse of the process of court. The Court further
C held, that "the judiciary in India also possesses inherent powers,
specially under Section 151 CPC, to recall its judgment or order
if the same has been obtained by fraud upon the court. In
the case of fraud upon a party to the suit or proceedings, the
court may direct the affected party to file a separate suit for
D setting aside the decree obtained by fraud."
12. Similarly, in Dadu Dayal Mahasabha v. Sukhdev Atya
& Anr., (1990) 1 SCC 189, this Court examined a issue as to
whether the trial court has the jurisdiction to cancel an order
E permitting the withdrawal of the suit under its inherent powers,
if it is ultimately satisfied that the suit has been withdrawn by a
person who is not entitled to withdraw the same. The court held
that "the position is well established that a court has the
inherent power to correct its own proceedings when it is
satisfied that in passing a particular order it was misled by one
F of the parties". However, the Court pointed out that there is a
distinction between cases where fraud has been practised
upon the court and where fraud has been practised upon a
party, while observing as under:
G "If a party makes an application before the court for
setting aside the decree on the ground that he did not
give his consent, the court has the power and duty to
investigate the matter and to set aside the decree if it
is satisfied that the consent as a fact was lacking and the
H court was induced to pass the decree on a fraudulent
RAM PRAKASH AGARWAL v. GOP! KRISHAN (DEAD 143
THROUGH L.RS.) [DR. B.S. CHAUHAN, J.]
representation made to it that the party had actually A
consented to it. However, if the case of the party
challenging the decree is that he was in fact a party to
the compromise petition filed in the case but his consent
has been procured by fraud, the court cannot
investigate the matter in the exercise of its inherent B
power, and the only remedy to the party is to institute a
suit". (Emphasis added)
13. In view of the above, the law on this issue stands
crystalised to the effect that the inherent powers enshrined under C
Section 151 CPC can be exercised only where no remedy has
been provided for in any other provision of the CPC. In the event
that a party has obtained a decree or order by playing a fraud
upon the court, or where an order has been passed by a
mistake of the court, the court may be justified in rectifying such
mistake, either by recalling the said order, or by passing any D
other appropriate order. However, inherent powers cannot be
used in conflict of any other existing provision, or in case a
remedy has been provided for by ariy other provision of the
CPC. Moreoveer, in the event that a fraud has been played
upon a party, the same may not be a case where inherent E
powers can be exercised.
14. Be that as it may, the Tribunal decided the case of
compensation filed by the appellants on 22.5.2000, and the
application filed by the respondents under Order IX Rule 13 F
CPC was dismissed vide order dated 20.2.2002. The
respondents challenged the said order dated 20.2.2002, by
filing Writ Petition No. 764 of 2002 in the High Court, and the
same stood dismissed in default. The same was restored,
heard and disposed of vide order dated 12.12.2005, by way G
of which the said Writ Petition was dismissed, in view of the
alternative remedy of appeal. Such an order was passed in
view of the fact that the order passed by the Tribunal was
appealable under Section 381 of the U.P. Nagar MahaPalika
Adhiniyam, 1959, to the High Court. The respondents filed an
H
\
144 SUPREME COURT REPORTS [2013] 6 S.C.R.
A appeal to recall the said order, the court heard such appeal on
merits. However, the said application for recall was dismissed
in default vide order dated 12.1.2009. A second application for
recall was then filed, which was also dismissed in default vide
order dated 15.3.2010. A third application was finally filed, and
B has been allowed vide impugned order.
15. In fact, while passing its final order, the High Court was
convinced that the appellants had committed a fraud upon the
court by not disclosing before the Tribunal, that at a prior stage,
C the matter had been adjudicated: upon, with respect to the
entitlement of the respondents, and also in respect of some
other properties therein, the High Court had made certain
observations against the respondents, and that the matter had
ultimately come before this Cou'rt in Civil Appeal No. 3871 of
1990, wherein/this Court had passed the following order:
D
"Having considered the entire matter, we are of the view
that special leave petition is fit to be dismissed. However,
there may be some mis-apprehension with respect to
certain observations made in the impugned judgment as
E having finally decided the adjudicated issues between the
parties and we, therefore make it clear that those
observations shall not be treated to have finally adjudicated
upon any of the disputed points. The appeal is disposed
of accordingly."
F
16. In the instant case, we have to bear in mind that the
proceedings stood concluded so far as the court of first
instance is concerned, and that the respondent was not the
party before the said court. Permitting an application under
Order IX Rule 13 CPC by a non-party, would amount to adding
G a party to the case, which is provided for under Order I Rule
10 CPC, or setting aside the ex-parte judgment and decree,
i.e. seeking a declaration that the decree is null and void for
any reason, which can be sought independently by such a party.
Jn the instant case, as the fraud, if any, as alleged, has been
H committed upon a party, and not upon the court, the same is
RAM PRAKASH AGARWAL v. GOPI KRISHAN 145
(DEAD THROUGH L.RS.) [DR. B.S. CHAUHAN, J.]
not a case where Section 151 CPC could be resorted to by A
the court, to redify a mistake, if any was made.
17. The matter basically relates to the apportionment of the
amount of compensation received for the land acquired. This
Court, in May George v. Special Tahsildar & Ors., (2010) i3 B
SCC 98, has held, that a notice under Section 9 of the Act,
1894, is not mandatory, and that it would not by any means
vitiate the land acquisition proceedings, for the reason that
ultimately, the person interested can claim compensation for the
acquired land. In the event that any other person has withdrawn C
the amount of compensation, the "person interested", if so
aggrieved, has a right either to resort to the proceedings under
the provision of Act 1894, or he may file a suit for the recovery
of his share. While deciding the said case, reliance has been
placed upon a large number of judgments of this Court,
including Dr. G.H. Grant v. State of Bihar, AIR 1966 SC 237. D
18. The said case is required to be examined from
another angle. Undoubtedly, the respondents did not make any
,application either under Section 18 or Section 30 of the Act,
1894 to the Land Acquisition Collector. The jurisdiction of the E
Reference Court, vis-a-vis "persons interested" has been
explained by this Court in Shyama/i Das v. Illa Chowdhry &
Ors., AIR 2007 SC 215, holding that the Reference Court does
not have the jurisdiction to entertain any application of pro
interesse suo, or in the nature thereof. The Court held as under: F
"The Act is a complete code by itself. It provides for
remedies not only to those whose lands have been
acquired but also to those who claim the awarded amount
or any apportionment thereof. A Land Acquisition Judge
derives its jurisdiction from the order of reference. It is G
bound thereby. His jurisdiction is to determine adequacy
and otherwise of the amount of compensation paid under
the award made by the Collector". Thus holding that, "It
is not within his domain to entertain any application of pro
interesse suo or in the nature thereof." H
146 SUPREME COURT REPORTS [2013] 6 S.C.R.
A The plea of the appellant therein, stating that the title
dispute be directed to be decided by the Reference Court itself,
since the appellant was not a person interested in the award,
was rejected by this Court, observing that the Reference Court
does not have the power to enter into an application under
B Order I Rule 10 CPC.
19. In Ajjam Linganna & Ors. v. Land Acquisition Officer,
RDO, Nizamabad & Ors.; (2002) 9 SCC 426, this court made
observations to the effect that it is not open to the parties to
C apply directly to the Reference Court for impleadment, and to
seek enhancement under Section 18 for compensation.
In Prayag Upnivesh Awas Evam Nirman Sahkari Samiti
Ltd. v. Allahabad Vikas Pradhikaran & Anr., (2003) 5 SCC
561, this Court held as under:
D
"It is well established that the Reference Court gets
jurisdiction only if the matter is referred to it under Section
18 or Section 30 of the Act by the Land Acquisition
Officer and if the Civil Court has got the jurisdiction and
authority only to decide the objections referred to it. The
E
Reference Court cannot widen the scope of its jurisdiction
or decide matters which are not referred to it."
While deciding the said case, the Court placed reliance
on the judgments in Parmatha Nath Malik Bahadur v.
F Secretary of State, AIR 1930 PC 64; and Mohammed
Hasnuddin v. The State of Maharashtra, AIR 1979 SC 404.
(See also: Kothamasu Kanakarathamma & Ors. v. State
of Andhra Pradesh & Ors., AIR 1965 SC304)
G It is evident from the above, that a person who has not
made an application before the Land Acquisition Collector, for
making a reference under Section 18 or 30 of the Act, 1894,
cannot get himself impleaded directly before the Reference
Court.
H
RAM PRAKASH AGARWAL v. GOPI KRISHAN (DEAD 147
THROUGH L.RS.) [DR. B.S. CHAUHAN, J.]
20. In view of the above, the legal issues involved herein, A
can be summarised as under:-
(i) An application under Order IX Rule 13 CPC cannot be
filed by a person who was not initially a party to the
proceedings;
B
(ii) Inherent powers under Section 151 CPC can be
exercised by the Court to redress only such a grievance, for
which no remedy is provided for under the CPC;
(iii) In the event that an order has been obtained from the c
Court by playing fraud upon it, it is always open to the Court to
recall the said order on the application of the person aggrieved,
and such power can also be exercised by the appellate court;
(iv) Where the fraud has been committed upon a party, the
court cannot investigate such a factual issue, and in such an D
eventuality, a party has the right to get the said judgment or
order set aside, by filing an independent suit.
(v) A person aggrieved may maintain an application before
the Land Acquisition Collector for reference under Section 18 E
or 30 of the Act, 1894, but cannot make an application for
impleadment or apportionment before the Reference Court.
21. The instant case has been examined in light of the
aforesaid legal propositions. We are of the considered opinion F
that the impugned judgment and order of the High Court cannot
be sustained in the eyes of law, and is hence liable to be set
aside.
In view of the above, the appeals succeed and are allowed.
The judgment and order impugned herein are set aside. The G
respondents are at liberty to seek appropriate remedy, by
resorting to appropriate proceedings, as permissible in law.
K.K.T. Appeals allowed.
H
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