The court can use inherent powers under Section 151 CPC to recall orders obtained under a legal misconception, ensuring justice is served in cases of procedural irregularity.

JUDGMENT

ANIL KSHETARPAL, J

1. Through present Appeal, the Appellant assails the correctness of the orders dated 16.01.2018 and 14.03.2018 [hereinafter referred to as „Impugned Order-1‟ and „Impugned Order-2‟], passed by the learned Single Judge [hereinafter referred to as „LSJ‟] in a case being CS(OS) 14/2018 titled “Romi Garg v. BDR Builders & Developers Pvt. Ltd. & Ors”.

2. The issue which arises for consideration in the present Appeal is whether in the absence of any specific provision, will it be appropriate to invoke the inherent power under Section 151 of the CPC to advance the cause of justice.

3. For the sake of convenience, the parties before this court shall be referred to in accordance with their status before the LSJ.

FACTUAL MATRIX

4. The present case has a chequered history. Sh. Lalit Modi [the Defendant No.2 herein] was the owner of the property bearing No. 32, Paschimi Marg, Vasant Vihar, New Delhi [hereinafter referred to as „Suit Property‟].

5. The Plaintiff asserts that an Agreement to Sell [hereinafter referred to as „ATS‟] was executed in his favour by Defendant No.2 on 09.07.2012 with respect to the sale of Suit Property, which was subsequently novated on 14.07.2016.

6. BDR Builders and Developers Pvt. Ltd. [the Defendant No.1 herein] on the other hand, claims that Defendant No.2 executed another ATS in its favour on 24.06.2014, also pertaining to the Suit Property.

7. It is further stated that on account of dispute between Defendant No.1 and Defendant No.2, Mr. Naresh Gupta [„Defendant No.3‟ herein] was appointed as Sole Arbitrator. The said Arbitrator allegedly passed a consent award on 21.11.2016, which was published on 12.01.2017 granting the remedy of specific performance of the ATS dated 24.06.2014 in favour of Defendant No.1.

8. On 05.03.2017, the Plaintiff instituted a suit seeking specific performance of his ATS, along with the consequential relief of possession. The Plaintiff also filed another civil suit being CS (OS) 14/2018 for Declaration, that the ATS dated 24.06.2014, the Arbitration Award dated 12.01.2017 and the General Power of Attorney [hereinafter referred to as‟GPA‟] and Will dated 10.02.2016 executed by Defendant No.2 in favour of Defendant No.1 is not binding upon him, in view of prior subsisting ATS in his favour.

9. The Plaintiff‟s said suit came up for preliminary hearing before the LSJ on 16.01.2018, where the learned senior counsel for the Plaintiff was confronted with the Judgement in Lala Durga Prasad v. Lala Deep Chand , AIR 1954 SC 75 . The counsel on instructions from the Plaintiff, withdrew the suit, which was accordingly dismissed as withdrawn. The Plaintiff thereafter filed an application for the recall of Impugned Order-1, however, the said application was dismissed on 14.03.2018.

10. While dismissing the recall application, the LSJ distinguished the judgement relied upon by the learned counsel for the Plaintiff, namely Bharat Karsondas Thakkar v. Kiran Construction Company , , 2008 (13) SCC 658 andLala Durga Prasad v. Lala Deep Chand (supra) and thereafter, held as under:-

“16. Lala Durga Prasad supra, is a caseof the title of the vendor in the property, of the contract of sale of which specific performance was sought, having, after the extension of contract of sale, vested in the custodian and who was impleaded in the suit. Supreme Court, after holding the plaintiff/ agreement purchaser to be entitled to a decree of specific performance, pondered the proper form of decree to be passed in such a situation. It was noticed that the practice of the courts in India had not been uniform; according to one point of view, the proper form of decree is to declare the subsequent purchase void as against the plaintiff and direct conveyance by the vendor alone; a second considers that both the vendor and vendee should join while third would limit execution of the conveyance to the subsequent purchaser alone. It was held (i) that the title to the property had validly passed from the vendor