A.K. Rath, J
1. This petition challenges the order dated 24.12.2018 passed by the learned 2nd Additional District Judge, Bhubaneswar in R.F.A. No. 15 of 2016,
whereby and whereunder, learned appellate court rejected the application of the petitioners-appellants for analogous hearing of the appeal with R.F.A.
No. 123 of 2008.
2. The dispute lies in a narrow compass. Facts need not be recounted in detail. Pithily put, the petitioners as plaintiffs instituted Civil Suit No. 411 of
2007 in the court of the learned Civil Judge (Sr. Division), Bhubaneswar for declaration of title and permanent injunction. The defendants-opposite
parties entered contest and filed written statement-cum-counter claim. The suit was dismissed. Counter claim was allowed. Assailing the judgment
and decree passed in the suit, the plaintiffs filed R.F.A. No. 15 of 2016 before the learned 2nd Additional District Judge, Bhubaneswar. In course of
hearing of the appeal, they filed an application for analogous hearing of the appeal along with R.F.A. No. 123 of 2018. It was stated that inadvertently
they could not file appeal against counter claim. Learned appellate court came to hold that conduct of the appellants appears to be unfair and
unreasonable. R.F.A. No. 15 of 2016 has not been admitted. There is no express provision in the CPC for analogous hearing of the appeal. The
respondents shall be seriously prejudiced if hearing of the appeal is deferred. Held so, it rejected the petition.
3. Heard Mr. Ganeswar Rath, learned Senior Advocate for the petitioners and Mr. Siddharth Mishra, learned Advocate for the opposite parties.
4. Mr. Rath, learned Senior Advocate for the petitioners submits that petitioner no. 1 is an old pardanasini illiterate lady. Petitioners 2 and 3 are the
daughters of petitioner no. 1. Both are married and residing in the house of their in-laws. They were depending on their lawyer. The previous lawyer
was instructed to file appeal. Inadvertently one appeal was filed. During hearing of the appeal, it was found that no appeal was preferred against the
decree passed in counter-claim. Thereafter, R.F.A. No. 123 of 2018 was filed, which is sub-judice. In the event both appeals are not heard
analogously, the judgment in R.F.A. No. 15 of 2016 will operate as res judicata in the second appeal. The plaintiffs shall suffer irreparable hardship.
To buttress submissions, he places reliance on the decisions of the apex Court in the case of Rafiq v. Mushilal, (1981) 2 SCC 788 : AIR 1981 SC
1400.
5. Per contra, Mr. Mishra, learned Advocate for the opposite parties submits that the plaintiffs have not filed appeal against the decree passed in the
counter claim. Against the judgment and decree passed in the suit, the plaintiffs filed R.F.A. No. 15 of 2016. Thereafter, R.F.A. No. 123 of 2018
along with an application for condonation of delay was filed. There was inordinate delay in filing R.F.A. No. 123 of 2018. In course of hearing of
R.F.A. No. 15 of 2016 an application was filed for analogous hearing of R.F.A. No. 123 of 2018. This is a clever ruse. The defendants shall suffer
irreparable hardship if the part-heard appeal is deferred.
6. In Rafiq, the apex Court held that the disturbing feature of the case is that under our present adversary legal system where the parties generally
appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the
learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's
procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing
of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power
to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High
Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his
job.
7. In Ram Prakash Agarwal v. Gopi Krishan (dead through LRs) (2013) 11 SCC 296, Section 151 CPC was the subject matter of consideration
before the apex Court. The apex Court, in paragraphs 13, 14 & 28.2 of the said report, held:
“13. 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 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 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 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.
14. 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-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 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.
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28.2. 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 CPC.â€
8. The ratio in the case of Rafiq and Ram Prakash Agarwal, proprio vigore apply to the facts of this case.
9. Resultantly, the impugned order is quashed. Learned appellate court shall take up the application for condonation of delay in filing R.F.A. No. 123
of 2018 and proceed with the matter. In the event delay is condoned, then both the appeals shall be heard analogously. The petition is allowed. There
shall be no order as to costs.
