AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2022 (8) TMI 1352
X X X X Extracts X X X X
X X X X Extracts X X X X
....d order dated 21.09.2021, passed by the High Court of Telangana in Interlocutory Application No. 5/2020 in Application No. 837/2013 in CS No. 7/1958. 3. The brief facts of this case necessary for the disposal of the appeal are as follows: the present dispute relates to Sy. No. 57 (Old Sy. No. 274) in Shamsguda Village, Ranga Reddy District, Telangana forming part of S. No. 252 of the list of Mukthas in the preliminary decree dated 06.04.1959 by the erstwhile High Court of Andhra Pradesh in CS No. 7/1958. 4. The underlying original suit was filed in 1953 before the City Civil Court, Hyderabad by one Smt. Sultana Jahan Begum, the daughter of Nawab Moinuddowla Bahadur. The plaintiff was seeking partition of properties of the Nawab known as 'Asman Jahi Paigah'. This suit was ultimately transferred to the file of the High Court numbered as C.S. No. 7/1958. The suit along with certain applications were disposed of by a preliminary­cum­final decree dated 06.04.1959 passed by the learned Judge of the High Court of Andhra Pradesh. The judgment recorded that the plaintiff withdraws the suit against defendant Nos. 27 to 49. It also recorded that a compromise was affected amongst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d I.A. No. 2 of 2017. As a consequence of the same, the State of Telangana's appeal, OSA SR No. 3744 of 2014 was dismissed. 10. In these circumstances, after lapse of nearly 7 years since the final decree was granted in favor of the appellant herein, the respondents herein filed 6 IAs (in Application 837/2013 in CS No. 7/1958) before the High Court of Telangana in 2020. The details of the applications are as follows: I.A No. Prayer 1/2020 To grant leave to the respondents to file implead petition in the above­mentioned application. 2/2020 To dispense with the filing of a neatly typed copy of material papers in application filed in the abovementioned application 3/2020 To allow impleadment 4/2020 To allow impleadment. 5/2020 To recall the order dated 19.09.2013 passed in the above­mentioned application and to set aside and pass such other order or orders as deemed fit and proper in the circumstances of the case 6/2020. To direct the appellant to not to alienate, not to interfere, not to change peaceful possession, not register any documents in scheduled property in Sy No.57 and any subdivision numbers in Sy No 57 of Shamsguda in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elangana, whose appeal had already been dismissed, or the respondents, who would have to establish their right, title and interest in the subject property in appropriate proceedings. 16. Aggrieved by the impugned judgment of the High Court recalling the final decree dated 19.09.2013, the appellant has approached this Court by way of the present Civil Appeal. 17. It is appropriate to mention here that the State of Telangana, despite dismissal of its appeal in 2020, and the specific observations of the High Court in the impugned order, initially filed an impleadment application, being IA No. 98965/2022, in the present Civil Appeal. This Court dismissed the abovementioned application for impleadment vide order dated 22.07.2022. 18. The State of Telangana also filed separate Special Leave Petitions challenging the present impugned order dated 22.12.2020, as well and the earlier order dated 22.12.2020 dismissing their intra court appeal [SLP (C) No. 13453 of 2022 and SLP (C) No. 13454­ 13456 of 2022]. These Special Leave Petitions were heard on 01.08.2022 by this Court and were dismissed in light of the observations made by the High Court in paragraph 116 of the impugned or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e respondents. 20. Mr. Dushyant Dave, learned Senior Counsel also appearing on behalf of the appellant, submitted as follows: (i) After the final decree was passed on 19.09.2013, the respondents, who are rank outsiders to the proceedings, filed the application for recall only in 2020. The respondents have neither provided an explanation as to the delay, nor have they filed any application for condonation of delay. (ii) The affidavit supporting the application for recall was filed by power of attorney holders. The person who signs the affidavit must have personal knowledge of the facts. Without such personal knowledge, such an affidavit could not have been filed. (iii) The present litigation is nothing but a proxy litigation. Unrelated third parties are seeking to interfere in the present matter as the value of the subject property is very high. (iv) The allegations of fraud were never taken before any forum until the impugned recall application before the High Court. Such plea taken by the third party without any supporting documents cannot be raised at a belated stage. (v) Once the State's appeal against the final decree was dismisse....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... ever passed. (vi) These points moved the learned Division Bench in allowing the recall application filed by the respondents. The impugned order therefore, merits no interference by this Court. 23. Mr. Yatin Oza, learned Senior Counsel appearing on behalf of the respondent no. 4, submitted as follows: (i) The conduct of the appellant is clear for all to see. They committed fraud on the Court to have the final decree dated 19.9.2013 passed in their favour by supressing judgement of Nazim Atiyat. (ii) The fundamental principle of equity is that the parties must come to Court with clean hands. In the present case, this Court should not show any indulgence to the appellant by interfering with the well­reasoned impugned judgment of the High Court under Article 136 of the Constitution. 24. We have heard the learned Senior counsel on either side, perused the entire material on record. Though several grounds have been raised, the first ground taken is that the High Court erred in exercising jurisdiction under Section 151 of the CPC, when alternate remedies exist under the CPC. Second ground is that the Senior Judge on the Bench, who appeared for one of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot contemplated under the Code. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals, revisions, or reviews. A party cannot find solace in Section 151 to allege and rectify historic wrongs and bypass procedural safeguards inbuilt in the CPC. 29. The respondents in the present case had access to recourse under Section 96 of the CPC, which allows for appeals from an original decree. It must be remembered that the present matter was being heard by the High Court exercising its original jurisdiction. The High Court was in effect conducting a trial, and the final decree passed by the High Court on 19.09.2013 was in effect a decree in an original suit. As such, there existed a right of appeal under Section 96 of the CPC, for the respondents. Though they were not parties to the suit, they could have filed an appeal with the leave of the Court as an affected party. Section 96 of the CPC reads as under: 96. Appeal from original decree .­ (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ich 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 re­open 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. Xxx 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o have raised this issue also at the time of arguments, particularly when the issue of recusal of the learned Judge had been specifically raised on the other ground that he had been the presiding member of the Bench which had dismissed the appeal filed by the State. 37. When an issue was not raised before the learned Division Bench, we do not wish to spill much ink on this issue. However, the material placed on record by the counsel for the appellant cannot be ignored. Annexure P8 of the appeal paper book indicates that the Senior Judge heading the Division Bench, while being an advocate, had represented the Andhra Pradesh State Financial Corporation in one of the connected proceedings related to this case. 38. Although we have no doubt in our mind about the absence of bias of any form of the learned senior Judge, we must at the same time also look at the issue of whether right minded persons could consider there exists any real likelihood of bias. In the case of State of West Bengal v. Shivananda Pathak, 1998 5 SCC 513, this Court held as under: "34. In Metropolitan Properties Co. v. Lannon [(1968) 1 WLR 815 : (1968) 1 All ER 354] it was observed "whether there was ....