Item No.4

10.01.2025 Court. No. 36 GB CAN 1 of 2024 In C.O. 70 of 2024 Atibir Industries Co. Ltd. & Ors.

VS Shree Ganesh Roadlines Represented by Vivek Chaudhury Mr. Krishnendu Goopta, Mr. Kanakendu Chatterjee … for the Petitioners.

Mr. Kanai Lal Samanta … for the Opposite Party.

1. CAN 1 of 2024 is an application for recalling and/or modification of the judgment dated April 12, 2024, passed by this Court in C.O. No.70 of 2024. The said revisional application was dismissed and the order passed by the learned Civil Judge (Senior Division), Haldia dated December 8, 2023 in Money Suit No.06 of

2022 was upheld.

2. By the order impugned in the civil revisional application, the learned trial court, upon exercising power under Section 151 of the Code of Civil Procedure, had recalled the order dated March 29, 2023. By the order dated March 29, 2023, the money suit was dismissed for non- prosecution at the instance of the plaintiff/opposite party. The order was recalled and the suit was restored. The learned court held that the money suit had been filed for a claim and on the assurance of the defendants in the suit that, they would repay all the dues, the plaintiff had withdrawn the suit. On April 19, 2023, an application was filed under Section 151 of the Code of Civil Procedure by the plaintiff, praying for recalling of the order dated March 29, 2023. The plaintiff prayed for restoration of the suit. The ground for recalling was that a meeting was held between the parties on April 4, 2023, but the defendants denied to pay off the dues of the plaintiff. The plaintiff‟s case was that, acting in good faith and to resolve the dispute, the plaintiff was persuaded to withdraw the suit. That, the subsequent mala fide action of the defendants compelled the plaintiff to file an application under Section 151 of the Code of Civil Procedure, praying for recalling of the order of the dismissal of the suit for non-prosecution. The trial court was of the view that in such backdrop of the case, justice would be sub served if the application was allowed. The order of dismissal of the suit on the ground of non- prosecution, was recalled. The trial court also observed that the plaintiff would not deliberately withdraw his suit, unless there was some talk of compromise or assurance of payment by the defendants.

3. Accordingly, the civil revision was filed and Mr. Goopta, learned advocate appeared for the defendants in the said suit and submitted that the question of restoring the suit would not arise as the same was dismissed without any liberty to file afresh on the self-same cause of action. The inherent power of the Court could not be exercised to negate the applicability of Order 23 Rule 1 sub-Rule 4 of the Code of Civil Procedure. The learned court was denuded of all powers to invoke the inherent jurisdiction and to restore the suit, once the suit was dismissed for non-prosecution.

4. This Court recorded the factual backdrop and came to a finding that the bona fide of the plaintiff was available from his conduct. Within 20 days from the order of dismissal, the plaintiff again approached the court and prayed for recalling of the order. This Court recorded the averments that, the suit was withdrawn on the oral assurance of settlement. This Court noticed that the suit had not progressed to such a stage where rights had been created in favour of the defendants. No pleading to such extent was available from the revisional application.

5. Thus, this Court was of the view that in the event the suit was not restored to its original file and number, grave injustice would be caused to the plaintiff. Accordingly, this Court held that the learned trial judge had rightly exercised inherent power under Section 151 of the Code of Civil Procedure. Reference was made by this Court to the decision of the Hon‟ble Apex Court in the matter of Jet Ply Wood Pvt. Ltd. And Another versus Madhukar Nowlakha and Others reported in AIR 2006 SC 1260. The Hon‟ble Apex Court held that i