A. Shameem Ahmed Vs A. Mohammed Hashim

@JUDGMENTTAG-ORDER

K. Ravichandra Babu, J.@mdashThe petitioners are the defendants 1 to 3 in O.S.No. 3761 of 2013 on the file of VIII Assistant City Civil Court, Chennai. The first respondent is the plaintiff in the said suit and the second and third respondents are the defendants 4 and 5 therein. The petitioners have filed this Civil Revision Petition challenging the order of the trial Court made in I.A.No. 17972 of 2013, dated 27.2.2014 in allowing the application filed by the first respondent/plaintiff under Section 151 CPC seeking to set aside the withdrawal dismissal order, dated 29.7.2013 passed in O.S.No. 3761 of 2013.

2. Short facts that arise for consideration in this Civil Revision Petition are as follows:

The first and second petitioners are the parents and the third petitioner is the brother of the first respondent. The first petitioner purchased ''A'' schedule property referred to in the plaint and out of love and affection towards his sons, namely the first respondent and the third petitioner, he executed a settlement deed, dated 27.1.2012, settling ''A'' schedule property to both of them and the said document was registered as Document No. 194/2012. The property so settled was delivered to the settles and they have taken possession of the same and enjoying it peacefully from the date of delivery. The settlement deed was executed out of the first petitioner''s own will and desire without any compulsion and it has been specifically stated that it is irrevocable. Earlier, the first petitioner also executed Memorandum of Declaration, dated 18.1.2011 recording Hiba of ''A'' schedule property to the first respondent and the third petitioner. The first and second petitioners also gifted ''B'' schedule property to the first respondent and third petitioner, by way of Hiba, dated 18.1.2011, attested by a Notary Public. The offer was accepted and the possession of ''B'' schedule property was taken by the first respondent and third petitioner. While that being so, the first petitioner cancelled the settlement deed, dated 27.1.2012 by way of registered cancellation deed, dated 10.5.2013 by falsely stating that the settlement deed was not acted upon. Therefore, the first respondent as plaintiff has filed the abovesaid suit for declaration to declare the said cancellation deed, dated 10.5.2013 as null and void, for permanent injunction restraining the petitioners herein from interfering with his peaceful possession and enjoyment of the suit property and for permanent injunction restraining the petitioners herein from alienating, encumbering, mortgaging or dealing with the suit property. The said suit was filed on 9.7.2013. It is stated that pending suit, the first respondent also obtained an ex-parte order of interim injunction.

3. Within 20 days from the date of filing of the said suit, the first respondent filed an application in I.A.No. 10671 of 2013 under Order 23 Rule 1 CPC, seeking permission of the Court to withdraw the suit. Based upon the said application, the trial Court, by judgment and decree dated 29.7.2013, i.e. on the date of filing of the application itself, dismissed the suit as withdrawn.

4. Exactly after four months, the first respondent filed I.A.No. 17972 of 2013 under Section 151 CPC praying to set aside the said order dated 29. 7.2013 dismissing the suit as withdrawn. The contention of the first respondent in the said application is that he was given false promise by his father and that he was falsely induced by his mother and brother that the father would cancel the cancellation deed, dated 10.5.2013 and restore back the settlement deed, dated 27.1.2012. According to the plaintiff, those false promises were made by the defendants 1 to 3 after receiving notice in the suit and on knowing the interim injunction granted by the trial Court therein. It is his further case that the defendants 1 to 3 did not act as per their promise, and on the other hand, a criminal complaint was filed against him by his father, followed by filing a civil suit by the father in O.S.No. 6265 of 2013 on 21.11.2013 praying for permanent injunction against the first respondent herein and obtained interim injunction therein. Therefore, it is the categorical case of the plaintiff that he was cleverly cheated by the defendants 1 to 3.

5. The said application was resisted by the petitioners herein, denying the compromise alleged by the plaintiff and by contending that the withdrawn suit cannot be restored as contemplated under Order 23 Rule 1(4)(b) CPC. It is their contention that the plaintiff did not reserve any liberty to file fresh suit and therefore, he cannot file a fresh suit for the same cause of action.

6. The trial Court allowed the said application by holding that the plaintiff has given justifiable reasons for the Court to exercise its inherent power under Section 151 CPC to restore the suit to meet the ends of justice. Challenging the said order, the present Civil Revision Petition is filed by the petitioners/defendants 1 to 3.

7. Mr.T.V.Ramanujam, learned Senior Counsel appearing for the petitioners submitted as follows:

a) If the allegation made by the plaintiff is fraud on Court, the suit can be restored, and on the other hand, if the allegation of fraud is between the parties, restoration of the suit is not possible based on such allegation and only a separate suit has to be filed. In this case, the plaintiff alleges that the defendants 1 to 3 have cheated him and such allegation of fraud or cheating being the matter between the parties and not on the Court, the plaintiff has to only file a separate suit for setting aside the decree in dismissing the suit as withdrawn. On this aspect, he relied on the following decisions:

(i) Ramji Gupta and Another Vs. Gopi Krishan Agrawal (D) and Others, );

(ii) Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., and

(iii) Dadu Dayal Mahasabha Vs. Sukhdev Arya and Another, .

(b) Under Section 151 CPC, no relief as prayed for in this matter can be sought for. Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others, is distinguishable on facts, more so, when the Apex Court therein has not discussed with regard to the issue of fraud played on a party or Court. In fact, in the subsequent decision rendered by the Apex Court reported in Rattan Bai and Another Vs. Ram Dass and Others, the Jet Ply Wood (P) Ltd. case (cited supra) was considered and held as not laying down any law. Therefore, the Jet Ply Wood (P) Ltd. case (cited supra) cannot have the effect of binding precedent. In this aspect, with regard to the ratio as to what could be the binding precedent, he relied on the following decisions:

(i) Rashmi Metaliks Ltd. and Another Vs. Kolkata Metropolitan Development Authority and Others, ;

(ii) Central Board of Dawoodi Bohra Community and Another Vs. State of Maharashtra and Another, and

(iii) Prakash Chandra Pathak Vs. State of Uttar Pradesh,

(c) The issue involved in the application is a matter for trial and therefore, a separate suit alone is maintainable under Section 34 of the Specific Relief Act read with Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and Section 5 of the Limitation Act.

(d) The Civil Revision Petition is maintainable under Article 227 of the Constitution of India, as the order passed by the trial Court is not an order passed in any pending proceedings. Therefore, when the order itself is a final order, filing of Revision under Section 115 CPC does not arise. Even otherwise, the supervisory jurisdiction under Article 227 of the Constitution of India is not ousted totally, even in the case where the Revision is to be filed only under Section 115 CPC.

(e) Under Order 23 Rule 3-A CPC, filing of a fresh suit is barred on the very same cause of action and however, the plaintiff can file a fresh suit seeking for setting aside the judgment and decree made in the present suit, as he is making serious allegation of fraud.

8. Per contra, Mr.N.Jothi, learned counsel appearing for the first respondent/plaintiff submitted as follows:

(a) The Civil Revision Petition filed under Article 227 of the Constitution of India is not maintainable and it is maintainable only under Section 115 CPC. The Revision filed under Article 227 of the Constitution of India cannot be converted as a Revision under Section 115 CPC as well. In support of the above submission on maintainability, he relied on the following decisions:

(i) J. Lili Jabakani and Others Vs. T.A. Chandrasekhar,

(ii) Vidyodaya Trust and Others Vs. Mr. Mohan Prasad R and Others,

(iii) Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, and

(iv) Kousalya Educational Trust Vs. K. Vijayakumari and Others,

(b) On merits, the deed of settlement once settling the property cannot be subsequently withdrawn or cancelled and the plaintiff is having a strong case against the defendants in the main suit.

(c) The trial Court has power under Section 151 CPC to order restoration of the suit. The inherent power is to do justice between the parties and to prevent the abuse of process of Court. On this aspect, the following decisions are relied on:

(i) Lakshmi Vs. Khader Basha,

(ii) Rattan Bai and Another Vs. Ram Dass and Others, and

(iii) Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others,

9. Heard the learned Senior Counsel appearing for the petitioners and the learned counsel appearing for the first respondent and perused the materials placed before this Court.

10. The points for consideration in this Civil Revision Petition are as follows:

(i) Whether the Civil Revision Petition filed under Article 227 of the Constitution of India is maintainable? and

(ii) Whether the impugned order of the trial Court passed under Section 151 CPC in setting aside the withdrawal dismissal order passed in the suit and restoring back the suit to the file, is sustainable?

11. The preliminary objection raised by the learned counsel for the first respondent is with regard to the maintainability of this Civil Revision Petition under Article 227 of the Constitution of India.

12. Learned counsel for the first respondent submitted that the impugned order passed by the trial Court is such a nature that it would fall under the scope and ambit of the proviso to Section 115 CPC, since such order in favour of the party applying for the Revision, would have given finality to the suit itself. Thus, he submitted that in view of the proviso introduced in Section 115 CPC, such an order is revisable only under Section 115 CPC and not under Article 227 of the Constitution of India. In other words, learned counsel for the first respondent conceded to the position that the present Civil Revision Petition would certainly be maintainable under Section 115 CPC.

13. On the other hand, learned Senior Counsel appearing for the petitioners submitted that the power under Article 227 of the Constitution of India is wider in nature and Section 115 CPC or its proviso will not curtail the power of this Court to exercise its jurisdiction under Article 227 of the Constitution of India. Thus, he submitted that the Civil Revision Petition, though filed under Article 227 of the Constitution of India, cannot be rejected as not maintainable.

14. In a decision reported in J. Lili Jabakani and Others Vs. T.A. Chandrasekhar, , a learned Judge of this Court has observed in paragraph 15 as follows:

"15. .. .. In the statutory revisional jurisdiction under Section 115 of the Code of Civil Procedure, the stress is on the question whether the order in favour of the party applying for revision would have given finality to the Suit or to other proceedings? If the answer is ''yes'', then the revision is maintainable. On the contrary if the answer is ''no'', then the revision is not maintainable. Therefore, if the order impugned is of interim nature or does not finally decide the lis, the revision will not be maintainable and those orders cannot be the subject matter of revision. .... "

15. In the decision of the Honourable Supreme Court reported in Vidyodaya Trust and Others Vs. Mr. Mohan Prasad R and Others, ), it has been observed that as against the order of the trial Court holding the suit is maintainable under Section 92 CPC, a Revision under Section 115 CPC is maintainable. In paragraph 11 of the said decision, it has been observed as follows:

"11. Judged in the aforesaid background the view of the learned Single Judge that the civil revision was not maintainable is clearly indefensible. Learned counsel for the respondent has fairly conceded to this position. If it is held that the suit in terms of Section 92 CPC is not maintainable, that would have the result of final disposal of the suit. However, the learned counsel made an attempt to justify the order by stating that the matter was also dealt with on merits. That would not improve the situation. The civil revision was clearly maintainable. ..."

16. In another decision of the Honourable Supreme Court reported in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, , it is observed in paragraph 32 as follows:

"32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is "no" then the revision is not maintainable. .... ..."

17. In a decision of this Court reported in Kousalya Educational Trust Vs. K. Vijayakumari and Others, , a learned Judge has observed in paragraphs 6 and 7 as follows:

"6. A bare reading of the aforesaid proviso after 1999 amendment makes it clear that the High Court shall not vary or reverse any order except where the order if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceeding.

7. The intention of the Legislature seems to exclude the revisional jurisdiction of the High Court in all Interlocutory matters, which, though may have an ultimate bearing in the suit, would not have brought the suit or other proceeding to an end."

18. A perusal of the above decisions would show that a Revision is maintainable under Section 115 CPC, if an order passed by the trial Court is within the ambit and scope of the proviso to Section 115 CPC. Absolutely, there is no quarrel over the said proposition. In fact, it is the contention of the learned counsel appearing for the first respondent petitioners that the petitioners are entitled to challenge the order impugned, under Section 115 CPC by way of Revision and such Revision is certainly maintainable. Therefore, under the above circumstances, the question is whether the Revision, which ought to have been filed under Section 115 CPC, if filed under Article 227 of the Constitution of India, can be rejected as not maintainable. In my considered view, the answer would be negative. It is needless to say that the scope and power under Article 227 of the Constitution of India, are wider in nature than the power conferred under Section 115 CPC. Therefore, if a Revision which ought to have been filed under Section 115 CPC, if not filed under the said provision and on the other hand, filed under Article 227 of the Constitution of India, cannot be rejected as not maintainable, as the forum of challenge in both the provisions is one and the same, namely the High Court. In fact, in Lili Jabakani''s case (cited supra), the learned single Judge of this Court also has observed in the very same paragraph 15 that the amendment by Act 46 of 1999 with effect from 1.7.2002 in Section 115 CPC, cannot and does not affect in any manner the jurisdiction of the High Court under Article 227 of the Constitution of India. A perusal of the said decision would further show that the Revision filed under Article 227 of the Constitution of India therein was not rejected on the ground of maintainability, but on the reason that the revision petitioners therein have not made out a case for interference under Article 227 of the Constitution of India.

19. Likewise in Shiv Shakti Coop. Housing Society''s case (cited supra), the Honourable Supreme Court has also observed in paragraphs 34 to 36 as follows:

"34. In view of what has been stated above, the inevitable conclusion is that the High Courts were right in the conclusion about non-maintainability of revision applications.

35. It was submitted by learned counsel for the appellants that even if the revision applications are held to be not maintainable, there should not be a bar on challenge being made under Article 227 of the Constitution. It was submitted that an opportunity may be granted to the appellants to avail the remedy.

36. If any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law."

20. In the said Shiv Shakti Coop. Housing Society''s case (cited supra) before the Honourable Supreme Court, a Revision under Section 115 CPC was found to be not maintainable against the order under challenge therein. Therefore, it was pleaded before the Apex Court for filing the Revision under Article 227 of the Constitution of India and such a plea was considered by the Apex Court and held as extracted supra.

21. At this juncture, it is useful to refer a decision of the Honourable Supreme Court reported in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, wherein in paragraph 48, it has been observed as follows:

"48. The subsequent Constitution Bench decision of this Court on Article 227 of the Constitution, rendered in the case of State of Gujarat etc. Vs. Vakhtsinghji Sursinghji Vaghela and Others etc., also expressed identical views. Justice Bachawat speaking for the unanimous Constitution Bench opined that the power under Article 227 cannot be fettered by State Legislature but this supervisory jurisdiction is meant to keep the subordinate tribunal within the limits of their authority and to ensure that they obey law."

22. In another decision of the Honourable Supreme Court reported in Surya Dev Rai Vs. Ram Chander Rai and Others, , it was observed in paragraphs 34 and 38 as follows:

"34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away -- and could not have take away -- the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled."

"38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-

(1) Amendment by Act No. 46 of 1999 with effect from 1.7.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

. . ..."

23. On a perusal of the abovesaid decision of the Apex Court in Surya Dev Rai''s case (cited supra), it would show that the power under Article 227 of the Constitution of India cannot be curtailed by any statutory prohibition. In the present case, the Revision is filed under Article 227 of the Constitution of India and according to the first respondent, such Revision ought to have been filed under Section 115 CPC. In other words, jurisdiction of this Court is not questioned and on the other hand, only the provision of law under which such jurisdiction to be exercised, is questioned. Therefore, I am of the view that in this case, the Revision can be held to be maintainable either by converting the present Revision filed under Article 227 of the Constitution of India into one under Section 115 CPC, as admittedly, this Civil Revision Petition was filed well within the statutory period of limitation; or by holding that this Revision is maintainable under Article 227 of the Constitution of India itself, even though the petitioners are having other alternative remedy available under Section 115 CPC. In either case, as the forum of Revision is the High Court itself, I do not find any justification to reject this Civil Revision Petition on the ground of maintainability. Accordingly, I hold that the present Civil Revision Petition is maintainable.

24. Thus, it leads to me consider and decide the next issue, which is on the merits of the case, namely, whether the trial Court is justified in restoring the suit by setting aside the withdrawal dismissal order passed in the said suit by exercising its power under Section 151 CPC ?

25. In this case, the first respondent-plaintiff filed the suit against his father, mother and brother and two official defendants of the Registration Department, for declaration to declare the cancellation deed of settlement, dated 10.5.2013 executed by the first defendant-father is null and void and not binding on the plaintiff and also for permanent injunction as referred to therein. The case of the plaintiff is that the property belonged to the first defendant-father, was settled by him by way of settlement deed, dated 27.1.2012 in plaintiff''s favour as well as in favour of the third defendant, who is another son of the first defendant- father, i.e. the brother of the plaintiff. According to the plaintiff, after such settlement, the possession was taken over and they are in enjoyment of the said property. However, the first defendant-father cancelled the said settlement deed, dated 27.1.2012 by way of cancellation deed, dated 10.5.2013. Such cancellation is sought to be challenged in the present suit by contending that the first defendant is not entitled to cancel the settlement deed when once it has been acted upon. The suit came to be filed on 9.7.2013. It is seen that on 12.7.2013, the trial Court has also granted an ex-parte order of interim injunction restraining the defendants 1 to 3 from alienating, encumbering, mortgaging or dealing with the suit property. When that being the position, on 29.7.2013, i.e. within 17 days of getting such order of interim injunction, the plaintiff fled an application in I.A.No. 10671 of 2013 seeking permission of the Court to withdraw the suit without liberty to file a fresh suit. A perusal of the affidavit filed by the plaintiff seeking such permission, would show that he has not stated as to under what circumstances he wanted to withdraw the suit, that too without any liberty to file a fresh suit. The trial Court, on the very same day of filing the said application, advanced the suit from 30.9.2013 to 29.7.2013 and in the presence of the learned counsel for the respective parties, passed a judgment and decree, dismissing the said suit as withdrawn. After such judgment and decree passed on 29.7.2013, the plaintiff filed I.A.No. 17972 of 2013, just after two months, seeking to set aside the withdrawal dismissal order dated 29.7.2013 made in the said suit. A perusal of the affidavit filed in support of the said I.A.No. 17972 of 2013, more particularly paragraphs 6 and 7, would show that the plaintiff has made serious allegations against his father, mother and brother, who are the defendants 1 to 3, that they have cheated him by giving some false promise and induced him to withdraw the suit. In order to appreciate the nature of allegations, paragraphs 6 and 7 of the said affidavit filed in I.A.No. 17972 of 2013, are extracted hereunder:

"6. I submit that after receiving the notice and become aware of the interim injunction passed by this Hon''ble court, he approached him and asked him to make a compromise with him. The 1st defendant/father also promised me that if I withdrew the suit unconditionally he would cancel the cancellation deed dated 10.05.2013 and restore back the settlement deed dated 27.01.2012. Initially I doubted his promise but later my mother the 2nd defendant insisted me to make a compromise with my father by withdrawing the suit. My brother the 3rd defendant herein also represented me that my father would not cheat but he would act according to the promise made by him. Believing the defendants words, finally I decided to withdraw the suit unconditionally. Accordingly I withdrew the suit unconditionally on 29.07.2013 and this Hon''ble Court dismissed the above suit as withdrawn.

7. I submit that whenever I approached the 1st defendant/father asking him to comply with his promise to cancel the cancellation deed dated 10.05.2013 and restore back the settlement deed dated 27.01.2012 he delayed the process for one or other reasons. His true colour came to light only on 23.11.2013 when the B2 Esplanade Police served a notice asking me to appear before the Inspector of Police on 25.11.2013 at 11.00 a.m. for an enquiry on the complaint dated 05.11.2013 given by my father against me. I went to the police on 25.11.2013 and appeared before the Inspector of Police for enquiry. I received a copy of the complaint dated 05.11.2013 from the Inspector of Police and shocked to see the allegations made in the complaint against me. He has portrayed me as a worst person. I have produced the copy of the complaint before this Hon''ble Court to see the allegations levelled against me. The Inspector of Police after conducting an investigation came to a conclusion that it is a civil dispute and closed the complaint advising to approach the Civil Court. It is only on 25.11.2013 I realized my mistake of withdrawing the suit believing the false promise of the 1st defendant/father and the false inducement of the 2nd and 3rd defendants. I realized that the defendants have cheated me by asking me to withdraw the above suit. When I have an Interim order of Injunction in my favour, I need not have withdrawn the suit. It is because of the cheating, mis-representation and inducement of the defendants I withdrew the above suit. ...."

26. A perusal of the abovesaid allegations would undoubtedly show that the contention of the plaintiff is that the defendants 1 to 3 have played fraud upon him and induced him to withdraw the suit based on some false promise. From the nature of the allegations so made, it could be seen that the categorical case of the plaintiff is that those defendants have played fraud upon the plaintiff in getting the suit dismissed as withdrawn.

27. With the above factual background, if we consider the scope of Section 151 CPC to restore the suit based upon such averments and the order of the Court below, it would show that the Court below is not justified in allowing the application and restoring the suit, instead of directing the plaintiff to file a separate suit seeking for cancellation of the decree passed on 29.7.2013 in the present suit. As rightly pointed out by the learned Senior Counsel appearing for the petitioners, if the fraud is played upon the party, then the Court cannot exercise the power under Section 151 CPC to restore the suit, as the remedy left open to such party is to file a separate suit and establish such allegations while challenging the said decree. Only when the fraud has been committed upon the Court, it is open for the Court to recall the earlier order. This position has been made clear by settling the law, in a recent decision of the Honourable Supreme Court reported in Ramji Gupta and Another Vs. Gopi Krishan Agrawal (D) and Others, ), wherein after elaborately discussing all the facts and circumstances, it has been observed in paragraphs 17, 19 and 28 as follows:

"17. In Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., 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 held, that: (SCC p. 562, para 22)

"22. The judiciary in India also possesses inherent power, 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 setting aside the decree obtained by fraud."

"19. In view of the above, the law on this issue stands crystallised to the effect that the inherent powers enshrined under Section 151 CPC can be exercised only where no remedy has been provided for in any other provision of 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 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 any other provision of CPC. 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."

"28. In view of the above, the legal issues involved herein, can be summarised as under:

28.1. An application under Order 9 Rule 13 CPC cannot be filed by a person who was not initially a party to the proceedings;

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;

28.3. In the event that an order has been obtained from the 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;

28.4. Where the fraud has been committed upon a party, the court cannot investigate such a factual issue, and in such an eventuality, a party has the right to get the said judgment or order set aside, by filing an independent suit.

28.5. A person aggrieved may maintain an application before the Land Acquisition Collector for reference under Section 18 or 30 of the 1894 Act, but cannot make an application for impleadment or apportionment before the Reference Court."

28. In fact, the other two decisions referred to by the learned Senior Counsel appearing for the petitioners, reported in Dadu Dayal Mahasabha Vs. Sukhdev Arya and Another, and Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., have also been referred to and considered by the Honourable Supreme Court in Ram Prakash Agarwal''s case (cited supra).

29. The learned counsel for the first respondent strongly relied on a decision of the Honourable Supreme Court reported in Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others, to contend that the Court below is justified in allowing the application filed under Section 151 CPC and restoring the suit. No doubt, in the said decision, the Honourable Supreme Court has observed that the Court would not be powerless to set aside the order permitting withdrawal of the suit in exercise of its inherent powers under Section 151 CPC, when through mistake, the plaintiff had withdrawn the suit. But the question as to under what circumstances such exercise of power under Section 151 CPC is warranted, has been considered and decided only in the recent decision of the Apex Court in Ram Prakash Agarwal''s case (cited supra). In fact, the Jet Ply Wood (P) Ltd''s case (cited supra), relied on by the learned counsel for the first respondent, has also been taken into consideration by the Apex Court in Ram Prakash Agarwal''s case (cited supra) and ultimately, it has been found that when the fraud has been committed upon a party, the Court cannot investigate such a factual issue and such party has to file independent suit only to get the judgment set aside. Further, the Jet Ply Wood (P) Ltd''s case (cited supra) was also considered in another decision of the Honourable Supreme Court reported in Rattan Bai and Another Vs. Ram Dass and Others, wherein in paragraphs 24 and 25, it has been observed as follows:

"24. In Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others, the trial court rejected the application of the plaintiffs "recalling the order by which the suit had been permitted to be withdrawn". The High Court recalled the order and restored the suit. Dealing with the case, this Court held at para 24: (SCC pp. 703-04)

"24. ...which 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 of 24- 9-2004, 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 not to exercise such jurisdiction in favour of the plaintiff."

25. This Court did not examine the question whether "the conscious decision of the court not to exercise such jurisdiction" was justified. This Court only held that the High Court''s decision to reverse the trial court''s order "not to permit the recall of the earlier order permitting the withdrawal of the suit" does not call for interference: Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others,

"27. 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."

30. What could be the proper exercise under Section 151 CPC, had been clearly spelt out in paragraph 28 of Ram Prakash Agarwal''s case (cited supra). Therefore, I am of the view that the trial Court was not justified in allowing the application and restoring the suit, when the categorical allegation of the plaintiff is that a fraud had been committed upon him by the defendants 1 to 3 and not upon the Court. The proper course, therefore, is only to direct the plaintiff to file a separate suit challenging the said judgment and decree passed on 29.7.2013.

31. Learned counsel for the first respondent also relied on a decision of this Court reported in Lakshmi Vs. Khader Basha, to contend that the Court has got power to restore the suit. The facts of the said case would show that the plaintiff himself therein by mistake made an endorsement for withdrawal in a suit for recovery of possession instead of the suit for bare injunction. Such mistake was considered by this Court and based upon such facts and circumstances of the said case, it was held therein that the scope of Section 151 CPC cannot limit or affect the inherent power of the Court to meet the ends of justice. Certainly, there is no dispute with regard to the power of the Court to exercise under Section 151 CPC. The question is as to under what circumstances and in what sort of cases such power has to be exercised. That question has been answered in the recent decision of the Honourable Supreme Court in Ram Prakash Agarwal''s case (cited supra). Therefore, the said decision of this Court reported in Lakshmi Vs. Khader Basha, is not helping the first respondent in any manner.

32. Learned counsel for the first respondent also relied on various decisions on the merits of the matter to contend that the settlement once acted upon, cannot be withdrawn or cancelled. I find that those decisions are not necessary for considering the present issue involved in this Civil Revision Petition. It is open for the first respondent to rely on those decisions at the appropriate stage in appropriate proceedings.

33. Likewise, the decisions relied on by the learned Senior Counsel appearing for the petitioners to show as to what could be the binding precedent, are also not referred to in detail in this order, in view of the fact that the decision of the Honourable Supreme Court in Ramji Gupta and Another Vs. Gopi Krishan Agrawal (D) and Others, , being the recent decision and is holding the field, this Court is undoubtedly bound by the said decision.

34. Further, a perusal of the order passed by the trial Court would also show that except extracting the reasons stated by the plaintiff in the affidavit filed in support of the application, the trial Court has not given any finding as to whether such contentions are factually proved and established. If the said application filed under Section 151 CPC is maintainable under the facts and circumstances of the present case, this Court would have certainly remitted the matter to the trial Court for re-consideration afresh. On the other hand, as this Court has come to the conclusion that the trial Court has no power to restore the suit, as the allegation of the plaintiff is that fraud has been committed upon him by the defendants 1 to 3 and under such circumstances, as held by the Honourable Supreme Court in Ram Prakash Agarwal''s case (cited supra), the plaintiff has to only file a separate independent suit challenging the decree granted earlier, no occasion for remand arises.

35. Consequently, the impugned order of the trial Court is set aside. The Civil Revision Petition is allowed. The first respondent/plaintiff is given liberty to file a separate suit challenging the judgment and decree, dated 29.7.2013 made in O.S.No. 3761 of 2013. No costs. The Miscellaneous Petition is closed.