The court has inherent power under Section 151 of CPC to recall an order dismissing a suit as not-pressed and restore the suit on its file, especially when the dismissal was based on a settlement agreement that was not complied with.

ORDER

This Civil Revision Petition is filed against the Docket Order dated 28.02.2022 in O.S.No.42 of 2014 on the file of the I Additional District Judge, Vizianagaram District.

2. Heard learned Counsel for the Petitioner and perused the material available on record.

3. The Petitioner is the Plaintiff and the respondents are the Defendants in O.S.No.42 of 2014 on the file of the I Additional District Judge, Vizianagaram.

4. The case of the petitioner is that he filed a suit in O.S.No.42 of 2014 before I Additional District Judge, Vizianagaram, for partition of plaint schedule property. When the matter is at the stage of the cross examination of PW.1, he filed Memo dated 06.08.2018 stating that the matter was settled out of the Court before the elders of both parties on certain terms and conditions and sought permission of the trial Court to not-press the suit. Accordingly, the trial Court, by Order dated 06.08.2018, dismissed the said suit as not-pressed. Thereafter, the respondents did not execute the Statement of Understanding entered into between both the parties, the petitioner filed an application to restore the suit on its file, but the trial Court by Order dated 28.02.2022 returned the said application. Challenging the same, the present Revision Petition is filed.

5. Learned counsel for the petitioner/plaintiff submits that believing the assurance of the defendants and the statement of understanding executed between the petitioner and the 1st respondent, he filed Memo dated 06.08.2018 seeking withdrawal of O.S.No.42 of 2014, without seeking any liberty. On 22.12.2021, the 1st respondent died. The legal heirs of the 1st respondent are trying to alienate the schedule property in O.S.No.42 of 2014 to third parties. The trial Court ought to have appreciated that the provisions of the Civil Procedure Code are not exhaustive and as such, the inherent power under Section 151 of CPC is incorporated to enable the Court’s of equity to exercise the inherent powers for the ends of justice. The trial Court ought to have appreciated that the suit filed by the petitioner is for partition of the plaint schedule property and the vested right of the petitioner shall be affected by non considering the case of the petitioner. The trial Court ought not to have returned the said application by way of an unreasoned order dated 28.02.2022. Therefore, the Order of the trial Court is contrary to law, weight of evidence and probabilities of the case, and as such, he prays to allow the present Civil Revision Petition.

6. Learned counsel for the petitioner placed reliance on the judgment reported in Jet Ply Wood (P) Limited and another v Madhukar Nowlakha and others, (2006) 3 SCC 699.

7. This Court anxiously considered the submissions of the learned counsel for the petitioner and perused the judgment relied on by him.

8. In the Judgment stated supra, the relevant paragraphs are extracted hereinunder:

“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 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 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 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 ques