CIVIL PROCEDURE CODE, 1908 — ORDER 23 RULE 1A, ORDER 22, and SECTION 151 — TRANSPOSITION OF DEFENDANT AS PLAINTIFF — DEATH OF SOLE PLAINTIFF — WILL DISPUTE.
Transposition upon Death of Sole Plaintiff: Where the sole plaintiff dies, and the legal representatives (LRs) are already on record as defendants, an application for transposition of one of the LRs as plaintiff is not governed by Order 23 Rule 1A CPC (which applies to voluntary withdrawal or abandonment of the suit), nor is substitution under Order 22 CPC required.
Inherent Power (Section 151 CPC): The Court's inherent power under Section 151 CPC can be invoked to allow the transposition of an existing defendant/LR as plaintiff to ensure the continuation of the suit and meet the ends of justice, as this situation is not expressly covered by other provisions.
Proof of Will for Transposition: A legal representative (son) seeking transposition based on a Will executed by the deceased plaintiff can be transposed without immediate proof of the Will. The validity and proof of the Will, including objections raised by the contesting defendant, are matters to be determined during the trial of the suit and are not a prerequisite for transposition at the interlocutory stage.
HIGH COURT OF ANDHRA PRADESH
* * * *
CIVIL REVISION PETITION No.314 of 2025
Between:
Daggubati Yeeswara Krishna Mohan
..... PETITIONER
AND
M. V. Satyanarayana Rao and 5 others
.....RESPONDENTS
DATE OF JUDGMENT PRONOUNCED: 09.05.2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals
Yes/No
3. Whether Your Lordships wish to see the
fair copy of the Judgment?
Yes/No
_______________________
RAVI NATH TILHARI, J
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CRP No.314 of 2025 2
* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
+ CIVIL REVISION PETITION No.314 of 2025
% 09.05.2025
# Daggubati Yeeswara Krishna Mohan
….Petitioner
Versus
$ M. V. Satyanarayana Rao and 5 others
....Respondents
! Counsel for the Petitioner: Sri M. R. S. Srinivas
^ Counsel for respondents : Sri Ch. Markondaiah
< Gist :
> Head Note:
? Cases Referred:
1. (2010) 8 SCC 1
2. 1993 (2) APLJ 435 (HC)
3. AIR 1965 SC 871
4. 1988 SCC OnLine Ker 335
5. (2011) 2 SCC 705
6. (2022) 19 SCC 806
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CRP No.314 of 2025 3
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
CIVIL REVISION PETITION No. 314 of 2025
JUDGMENT:
Heard Sri M. R. S. Srinivas, learned counsel for the petitioner and Sri Ch.
Markondaiah, learned counsel for the respondents, and perused the material
on record.
2. This civil revision petition under Article 227 of the Constitution of India
has been filed by the 1st defendant in O.S.No.104 of 1995 (in short ‘suit’)
pending in the Court of the V Additional Senior Civil Judge (Senior Division),
Vijayawada (in short ‘learned Court’). Muggula Ganga Ratnam, the mother of
the present respondents No.1 to 6, filed O.S.No.104 of 1995 against
Dhaggupati Yeeswara Krishna Mohan, 1st defendant in the suit/present
petitioner for possession of the plaint schedule property and for future profits
from the date of the suit till the date of delivery of possession after ejecting the
1
st defendant and his tenants, with other consequential reliefs.
3. The plaintiff Muggula Ganga Ratnam died. The case of the 1st
defendant in the suit/present petitioner was that the husband of the plaintiff
Muggula Ganga Ratnam had entered into an agreement of sale with him.
4. Learned counsel for the petitioner submitted that the 2nd defendant in
the suit/1st respondent herein filed I.A.No.539 of 2011 under Order 22 Rule 3
CPC to substitute the legal representatives in the place of the deceased plaintiff,
I.A.No.540 of 2011 to set aside the abatement of the suit and I.A.No.541 of
2011 to transpose the 2nd defendant/1st respondent herein as plaintiff No.2 in
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CRP No.314 of 2025 4
the suit. On the aforesaid I.As, notices were issued to the 1st defendant. He
inter alia filed a memo in I.A.No.541 of 2011 and requested the Court for
examination of the 2nd defendant/1st respondent herein, inter alia, on the point
of the Will based on which the case of the 2nd defendant was for transposition
as plaintiff No.2, that the plaintiff, the mother had executed a Will in favour of
the 2nd defendant. The alleged Will in favour of the 2nd defendant was also
disputed by some of the other defendants, the sisters. That memo was rejected
by the learned Court.
5. Being aggrieved from the rejection of such memo, as also the notices
issued in I.A.Nos.539 and 540 of 2011, the 1st defendant in the suit/the present
petitioner filed three civil revision petitions, viz., CRP Nos.3697, 3893 and 4049
of 2012. Those three civil revision petitions were disposed of by the common
Order dated 28.12.2017 by this Court, observing that since the legal
representatives of the deceased plaintiff Muggula Ganga Ratnam were already
on record as defendants No.2 to 7, there was no question of filing application
under the Limitation Act or for substitution under Order 22 or for setting aside
the abatement under Order 22 Rule 9 CPC and therefore, there was nothing to
adjudicate upon those applications by the learned Court.
6. However, with respect to the application for transposition of the 2nd
defendant as 2nd plaintiff is concerned, it was observed that, that was a dispute
between the 2nd defendant and the other legal representatives. In fact, the suit
for possession was practically between the 1st defendant and the late plaintiff’s
legal heirs so all were to be transposed, unless the 2nd defendant proved the
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Will as contemplated by Section 63 of the Indian Succession Act; wherein, the
1
st defendant had got a stake to oppose the Will, if at all, but for that there was
nothing to entertain those revision petitions. Consequently, all those civil
revision petitions were closed to pursue their remedies before the trial Court. It
was observed that the revision petitions were closed for the trial Court only to
adjudicate the lis covered by I.A.No.539 of 2012 while for transposing 2nd
defendant or all the other defendants, the legal representatives of deceased
plaintiff, as plaintiffs.
7. Learned counsel for the petitioner submitted that in fact I.A.No.539 of
2012 was a clerical mistake, it should have been I.A.No.541 of 2012, which was
for transposition of the 2nd defendant as 2nd plaintiff.
8. The 1st defendant had also taken a plea that based on the agreement
of sale, alleged to have been executed by the deceased husband of the plaintiff
Muggula Ganga Ratnam, a suit for specific performance of contract being
O.S.No.260 of 1994 was also filed. This Court in the aforesaid 3 revisions’
order, observed that if the suit for specific performance was also in the same
Court, the learned trial Judge shall conduct joint trial, as the whole contest of
the 1st defendant in opposing the suit for possession was depending upon his
entitlement to the relief for specific performance or not to record the evidence
in the suit for specific performance. The trial Court was also directed to make
every endeavor for early disposal of the application of transposition.
9. By the impugned Order dated 20.01.2025, now under challenge the
I.A.No.541 of 2011 i.e., for transposition of the 2nd defendant as the 2nd
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CRP No.314 of 2025 6
plaintiff, has been allowed, permitting to transpose the 2nd defendant as 2nd
plaintiff and to carry out the necessary consequential amendments.
10. The learned trial Court has observed that so far as the dispute with
respect to the Will is concerned, amongst the legal heirs, as also the petitioner,
the 1st defendant in the suit that could be during the course of trial,
considering the Order passed by this Court in previous 3 revision petitions.
During trial, the petitioner/1st defendant shall also get chance to oppose the
said Will, although it was further observed that the dispute of Will was among
the legal heirs of the deceased plaintiff and the defendant No.1/petitioner was
in no way related. The learned trial Court further observed that it was only the
2
nd defendant who had filed application to transpose him as 2nd plaintiff though
the defendants No.2 to 7 were the legal heirs of the deceased plaintiff. Those
other legal representatives on record did not choose to file any application
seeking their transposition as plaintiffs. The 2nd defendant who filed the
application seeking his transposition as 2nd plaintiff, was basing his claim on the
Will, said to be executed by the original plaintiff, the mother. The objection of
the respondents was regarding legality and maintainability of the Will which
was only with respect to the 2nd defendant and the other legal representatives.
The learned Court further observed that since the validity or otherwise of the
Will would be decided at the appropriate stage, transposing the 2nd defendant
as 2nd plaintiff would not cause any prejudice to the other defendants.
Moreover, transposing the 2nd defendant as 2nd plaintiff would be helpful to the
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Court to come to a just conclusion in the suit in view of the death of the sole
plaintiff Muggula Ganga Ratnam.
11. Learned counsel for the petitioner while challenging the impugned
Order, submitted that for the transposition of the 2
nd defendant as 2nd plaintiff,
he was required to prove the Will as per the provisions of Section 63 of the
Indian Succession Act read with Section 68 of the Indian Evidence Act. He
submitted that in the previous round of litigation, by the common Order dated
28.12.2017 in CRP Nos.3697, 3893 and 4049 of 2012 also it was observed by
this Court that all the legal representatives of the deceased plaintiff were to be
transposed unless the 2nd defendant proved the Will. Consequently, he
submitted that without the proof of the Will, the 2nd defendant alone could not
be transposed as 2nd plaintiff and all the defendants, the legal representatives
of the deceased plaintiff ought to have been transposed as plaintiffs in the
place of the deceased plaintiff.
12. Learned counsel for the petitioner further submitted that the
application for transposition was filed under Section 151 CPC, whereas there
was specific provision for transposition under Order 23 Rule 1A of CPC, but the
application was not filed therein, consequently, the application was not
maintainable under Section 151 CPC and that it should have been rejected. He
has placed reliance on the cases of Vinod Seth v. Devinder Bajaj
1
and S.
Anjaneyulu v. Soorampally Venkata Ramana Gupa
2
.
1
(2010) 8 SCC 1
2
1993 (2) APLJ 435 (HC)
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13. Learned counsel for the respondents contended that the impugned
Order does not suffer from any illegality. He submitted that the 2nd defendant
was entitled to be transposed not only based on the Will in his favoiur by the
plaintiff, but also being one of the legal representatives, being the son. He
supported the impugned order. So far as the proof and the validity of the Will
is concerned, he submitted that the same is subject matter of the trial, as has
been rightly observed by the learned trial Court.
14. I have considered the aforesaid submissions and perused the
material on record.
15. The point that arises for consideration is; Whether the impugned
Order of transposition suffers from any illegality and calls for any interference?
16. It is undisputed that the 2nd defendant is also one of the legal
representatives of the deceased plaintiff being her son though he is claiming his
transposition based on the Will of the plaintiff in his favour. But, even if for the
time being for the purposes of transposition to continue the suit, the Will is not
taken into consideration, as the learned trial Court has rightly observed that the
validity of the Will and its proof is to be considered during the course of trial,
this Court is of the view that the 2nd defendant in his capacity even as one of
the legal representatives being the son could be arrayed as 2nd plaintiff by
transposition, to continue the suit in the place of the deceased plaintiff mother.
The suit was filed only against the 1st defendant seeking relief and not against
the other defendants, the legal representatives of the deceased plaintiff. The
suit was not against defendants No.2 to 7. So, so far as the validity of the
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Order impugned is concerned, for the purpose of transposition, in the absence
of any dispute being raised by the 1st defendant, the petitioner herein, that the
2
nd defendant is the son, there cannot be any illegality in the impugned order.
It is not the case of the petitioner that the 2nd defendant is not the son of the
plaintiff and therefore not her legal representative. So, further, proof of Will for
transposition at this stage of the application for transposition was not required
at all. For the purpose of transposition, to continue the suit, on the death of
the sole plaintiff, the defendant No.2, son, one of the legal representatives,
could be transposed, independent of the proof of Will.
17. So far as the submission of the learned counsel for the petitioner,
based on Order 23 Rule 1A CPC is concerned and thereon, that Section 151 CPC
could not be invoked to pass the impugned order, the same deserves rejection.
18. Order 23 Rule 1A CPC reads as under:
“1A. When transposition of defendants as plaintiffs may be permitted.
Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a
defendant applies to be transposed as a plaintiff under rule 10 of Order I the
Court shall, in considering such application, have due regard to the question
whether the applicant has a substantial question to be decided as against any of
the other defendants.”
19. Order 23 Rule 1A CPC gets attracts in two contingencies. When the
plaintiff withdraws the suit and/or if the plaintiff abandons the suit. Then, the
defendants or any of them who want to pursue the suit they have to proceed
under Order 23 Rule 1A CPC for their transposition for the purpose of
continuing the suit.
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20. The word ‘abandonment’ means to give up with intent of never again
to resume, ones right or interest.
21. As per “Black’s Law Dictionary”, the word ‘abandonment’ means, the
surrender, relinquishment, disclaimer, or cession of property or of rights.
Voluntary relinquishment of all right, title, claim and possession with the
intention of not reclaiming it.
22. In Kanwar Singh v. Delhi Administration
3
the contention raised
was that to impound, under Section 418 of the Delhi Municipal Corporation Act
1957, an ‘abandoned’ cattle, abandoned implied the complete leaving of a thing
as a final rejection of one’s responsibilities so that the thing becomes
ownerless. The Hon’ble Apex Court held that the meaning to be attached to
the word ‘abandoned’ would depend upon the context in which it was used. It
was further observed that it is the duty of the Court in construing a statute to
give effect to the intention of the legislature. Paragraphs 11 and 12 of Kanwar
Singh (supra) read as under:
“11. A more serious contention of Mr Kohli, however is that under Section
418 cattle which the Corporation can impound, must be ownerless or tethered
on any street or public place or land belonging to the Corporation. Admittedly
the cattle in question were not tethered on any such place and, therefore, Mr
Kohli contends that their seizure was not permissible. In support of his
contention that “abandoned” implies the complete leaving of a thing as a final
rejection of one's responsibilities so that the thing becomes “ownerless”, Mr
Kohli has referred us to the Law Lexicon and Oxford Dictionary. The meanings
relied on by him are as follows:
3
AIR 1965 SC 871
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“A thing banned or denounced as forfeited or lost, whence to abandon,
desert, or forsake as lost and gone.”
Wharton's Law Lexicon.
“To let go, give up, renounce, leave off; to cease to hold, use or
practise.” The Oxford English Dictionary, Vol. I.
In the Oxford Dictionary the word is also said to mean “to let loose; to set free;
to liberate”. Several other meanings of the word have been given both in that
dictionary as well as in Wharton's Law Lexicon. In the latter as also in
Jowitt's The Dictionary of English law under “abandonment” are given cases
from which it would appear that different meanings have been given to
“abandonment” in different statutes.
12. It will thus be seen that the meaning to be attached to the word
abandoned would depend upon the context in which it is used. In the context in
which it occurs in Section 418(1), the meaning which can reasonably be
attached to the word “abandoned” is ‘let loose’ in the sense of being ‘left
unattended’ and certainly not ‘ownerless’. It is the duty of the Court in
construing a statute to give effect to the intention of the legislature. If, therefore,
giving a literal meaning to a word used by the draftsman, particularly in a penal
statute would defeat the object of the legislature, which is to suppress a
mischief the Court can depart from the dictionary meaning or even the popular
meaning of the word and instead give it a meaning which will advance the
remedy and suppress the mischief, (see Maxwell on Interpretation of Statutes,
11th Edn. pp. 221-24 and 266). In the Act before us when the legislature used
the word ‘abandoned’ it did not intend to say that the cattle must be ownerless.
This is implicit in the proviso to sub-section (1) of Section 418 which says that
anyone ‘claiming’ an animal which has been impounded under that sub-section
can, within 7 days of seizure, get it released on fulfilling certain conditions.
Such a claim could only be made by a person who is the owner of the animal
impounded or who has at least the custody of the animal. We cannot, therefore,
accept the first point raised by Mr Kohli.”
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23. In Madhavi Amma v. P. M. Sailaja
4
the plaintiff therein was not
conducting the suit properly and so defendant No.20 therein applied for
transposition which was allowed by the trial Court. In that context, the Kerala
High Court considered if that could be said an abandonment of the suit by
plaintiff and observed as under:
“7. Could it then be said that the plaintiff has abandoned the suit. The
word ‘abandoned’, is not defired. It has therefore become necessary to define
the word. The words “withdrawn” and “abandoned” are used alternatively.
That means the word ‘abandoned’ takes colour from the expression
‘withdrawn’. ‘Withdrawn’ means to remove from the files of the court and
thus prevent the cause being tried. If that be so, the word ‘abandoned’
means to give up with intent of never again resuming one's right or
interest. Going by the pleadings in the petition, it cannot be said that the 20th
defendant has a case that the plaintiff has abandoned the suit. On the other hand
the inference irresistable from the circumstances is that the plaintiff is not
conducting the cases in the way in which it should be conducted from the point
of view of the 20th defendant. That in my view is not a ground for transposition
on the ground that the plaintiff has abandoned the suit.”
24. The intention of the legislature in using the expressions ‘abandoned’
or and ‘withdrawn’ in Order 23 Rule 1A CPC is clear that it should be a
voluntary act of the plaintiff. If the suit cannot be proceeded on account of
death of plaintiff that cannot be voluntary act of the plaintiff so as to attract
Order 23 Rule 1A CPC. For such a case, the legislature has specifically provided
under Order 22 CPC.
25. On the death of the plaintiff, it cannot be said that the plaintiff
abandoned the suit, nor that the suit was withdrawn. Ordinarily, on the death
4
1988 SCC OnLine Ker 335
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of the plaintiff, the legal representatives, if the right to sue survives, shall apply
for their substitution in place of the deceased plaintiff. However, in the present
case, all those legal representatives were already on record as Defendants No.2
to 7. The plaintiff’s suit, in fact, was not against those legal representatives,
but only against the 1st defendant for whose eviction the suit was filed. If the
defendants/legal representatives of the deceased plaintiff, seek their
transposition, as plaintiff in the place of the deceased or anyone of them, it
would not be a case of transposition under Order 23 Rule 1A CPC. They were
already on record so, any application for substitution was also not required and
the same had already been held in the previous CRP(s). The only thing was to
continue the suit against the 1st defendant and for that, some of the legal
representatives of the deceased on record as defendants No.2 to 7 had to be
transposed as plaintiffs.
26. In S. Anjaneyulu (supra), upon which reliance has been placed by
the petitioner’s counsel, it was held that the defendant who wanted to continue
the suit, like in the case of a suit for partition or a suit for dissolution of a
partnership and for rendering of accounts, had no remedy under any of the
Rules under Order 22 for setting aside of abatement so far as the deceased
plaintiff was concerned. Therefore, the only recourse available to him was for
continuing the suit, he had to apply for transposition as a plaintiff.
27. In the aforesaid case, the plaintiff died and the legal representatives
were not coming forward being not interested. They did not make any
application to bring them on record, in such circumstances, it was held that the
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defendant who was interested in continuing the suit, had the remedy to apply
for transposition. So, in case of death of the plaintiff if the legal representatives
do not come forward to prosecute the suit, that might have been considered as
abandonment of the suit by the legal representatives of the plaintiff, and so the
remedy of the defendant to apply for transposition under Order 23 Rule 1A
CPC. But, in the present case, defendant No.2, son of the deceased plaintiff
has come forward for this transposition as plaintiff.
28. Section 151 CPC is as under:
“Section 151: Saving of inherent powers of Court.
Nothing in this Code shall be deemed to limit or otherwise affect the
inherent power of the Court to make such orders as may be necessary for the
ends of justice or to prevent abuse of the process of the Court.”
29. In Rajendra Prasad Gupta vs Prakash Chnadra Mishra
5
, the
plaintiff filed an application to withdraw the suit. Afterwards he changed his
mind and before an order could be passed he filed an application for withdrawal
of the earlier application. The second application was dismissed and the order
was upheld by the High Court taking the view that once the application for
withdrawal of the suit was filed the suit stood dismissed as withdrawn even
without any order on withdrawal application. The Hon’ble Apex Court did not
agree with the said view of the High Court and set aside its order. The Hon’ble
Apex Court held that the rules of procedure are handmaids of justice and every
procedure was permitted to the court for doing justice unless expressly
5
(2011) 2 SCC 705
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prohibited and not that every procedure is prohibited unless expressly
permitted. There was no express bar in filing an application for withdrawal of
the withdrawal application. It is relevant to refer to paras 4 to 6 of Rajendra
Prasad Gupta (supra), which are reproduced as under:
“4. We do not agree. Rules of procedure are handmaids of justice. Section
151 of the Code of Civil Procedure gives inherent powers to the court to do
justice. That provision has to be interpreted to mean that every procedure
is permitted to the court for doing justice unless expressly prohibited, and
not that every procedure is prohibited unless expressly permitted. There is
no express bar in filing an application for withdrawal of the withdrawal
application.
5. In Narsingh Das v. Mangal Dubey (ILR (1883) 5All 163), Mahmood, J.
the celebrated Judge of the Allahabad High Court, observed:
"Courts are not to act upon the principle that every procedure is to be
taken as prohibited unless it is expressly provided for by the Code, but on
the converse principle that every procedure is to be understood as
permissible till it is shown to be prohibited by the law. As a matter of
general principle prohibition cannot be presumed."
6. The above view was followed by a Full Bench of the Allahabad High
Court in Raj Narain Saxena v. Bhim Sen and we agree with this view.
Accordingly, we are of the opinion that the application praying for withdrawal
of the withdrawal application was maintainable. We order accordingly.”
30. In My Palace Mutually Aided Co-operative Society vs B.
Mahesh
6
on the scope of Section 151, CPC the Hon’ble Apex Court clearly
observed that Section 151 CPC can only be applicable if there is no alternative
remedy available in accordance with the existing provisions of law. Then it
6
(2022) 19 SCC 806
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provides for civil courts to invoke their inherent jurisdiction and utilise the same
to meet the ends of justice or to prevent abuse of process. Paras 25 to 28 are
reproduced as under:
“25. Section 151 CPC provides for civil courts to invoke their inherent
jurisdiction and utilise the same to meet the ends of justice or to prevent abuse
of process. Although such a provision is worded broadly, this Court has
tempered the provision to limit its ambit to only those circumstances where
certain procedural gaps exist, to ensure that substantive justice is not obliterated
by hypertechnicalities.
26. As far back as in 1961, this Court in Padam Sen v. State of U.P.,
observed as under: (SCC OnLine SC para 8)
"8.... The inherent powers of the Court are in addition to the powers
specifically conferred on the Court by the Code. They are complementary to
those powers and therefore it must be held that the Court is free to exercise
them for the purposes mentioned in Section 151 of the Code when the
exercise of those powers is not in any way in conflict with what has been
expressly provided in the Code or against the intentions of the Legislature.
It is also well recognised that the inherent power is not to be exercised in a
manner which will be contrary to or different from the procedure expressly
provided in the Code."
(emphasis supplied)
27. In exercising powers under Section 151 CPC, it cannot be said that the
civil courts can exercise substantive jurisdiction to unsettle already decided
issues. A court having jurisdiction over the relevant subject-matter has the
power to decide and may come either to a right or a wrong conclusion. Even if a
wrong conclusion is arrived at or an incorrect decree is passed by the
jurisdictional court, the same is binding on the parties until it is set aside by an
appellate court or through other remedies provided in law.
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28. Section 151 CPC can only be applicable if there is no alternative remedy
available in accordance with the existing provisions of law. Such inherent
power cannot override statutory prohibitions or create remedies which are not
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 CPC.”
31. In Vinod Seth (supra), upon which the learned counsel for the
petitioner placed reliance, the Hon’ble Apex Court held that as there were
specific provisions in the Code, relating to costs, security for costs and
damages, the Court could not invoke Section 151 CPC on the ground that the
same was necessary for the ends of justice.
32. Based on the said judgment, the contention of the petitioner’s
counsel was that as there was specific remedy under Order 23 Rule1A CPC, the
Court could not have invoked its inherent power to allow the application for
transposition.
33. In Vinod Seth (supra) on the scope of Section 151 CPC the Hon’ble
Apex Court examined the issue as under in paragraphs No.27, 28, 29, 30, 31,
32 and 33.
“27. We will next examine whether the power to make such an order can be
traced to Section 151 of the Code, which reads:
“151. Saving of inherent powers of court.—Nothing in this Code shall be
deemed to limit or otherwise affect the inherent power of the court to make
such orders as may be necessary for the ends of justice or to prevent abuse of
the process of the court.”
28. As the provisions of the Code are not exhaustive, Section 151 is
intended to apply where the Code does not cover any particular procedural
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aspect, and interests of justice require the exercise of power to cover a
particular situation. Section 151 is not a provision of law conferring power to
grant any kind of substantive relief. It is a procedural provision saving the
inherent power of the court to make such orders as may be necessary for the
ends of justice and to prevent abuse of the process of the court. It cannot be
invoked with reference to a matter which is covered by a specific provision in
the Code. It cannot be exercised in conflict with the general scheme and intent
of the Code. It cannot be used either to create or recognise rights, or to create
liabilities and obligations not contemplated by any law.
29. Considering the scope of Section 151, in Padam Sen v. State of
U.P. [AIR 1961 SC 218 : (1961) 1 Cri LJ 322] , this Court observed: (AIR p.
219, paras 8-9)
“8. … The inherent powers of the court are in addition to the powers
specifically conferred on the court by the Code. They are complementary to
those powers and therefore it must be held that the court is free to exercise them
for the purposes mentioned in Section 151 of the Code when the exercise of
those powers is not in any way in conflict with what has been expressly
provided in the Code or against the intentions of the legislature. …
9. … The inherent powers saved by Section 151 of the Code are with
respect to the procedure to be followed by the Court in deciding the cause
before it. These powers are not powers over the substantive rights which any
litigant possesses. Specific powers have to be conferred on the courts for
passing such orders which would affect such rights of a party.”
(emphasis supplied)
30. In Manohar Lal Chopra v. Seth Hiralal [AIR 1962 SC 527] this Court
held: (AIR p. 533, para 21)
“21. … that the inherent powers are not in any way controlled by the
provisions of the Code as has been specifically stated in Section 151 itself. But
those powers are not to be exercised when their exercise may be in conflict with
what had been expressly provided in the Code or against the intentions of the
legislature.”
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31. In Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal
Bhargava [AIR 1966 SC 1899] this Court reiterated that the inherent power of
the court is in addition to and complementary to the powers expressly conferred
under the Code but that power will not be exercised if its exercise is
inconsistent with, or comes into conflict with any of the powers expressly or by
necessary implication conferred by the other provisions of the Code. Section
151 however is not intended to create a new procedure or any new right or
obligation.
32. In Nain Singh v. Koonwarjee [(1970) 1 SCC 732 : AIR 1970 SC 997]
this Court observed: (SCC p. 735, para 4)
“4. … Under the inherent power of courts recognised by Section 151 CPC,
a court has no power to do that which is prohibited by the Code. Inherent
jurisdiction of the court must be exercised subject to the rule that if the Code
does contain specific provisions which would meet the necessities of the case,
such provisions should be followed and inherent jurisdiction should not be
invoked. In other words the court cannot make use of the special provisions of
Section 151 of the Code where a party had his remedy provided elsewhere in
the Code….”
33. A suit or proceeding initiated in accordance with law, cannot be
considered as an abuse of the process of court, only on the ground that such suit
or proceeding is likely to cause hardship or is likely to be rejected ultimately.
As there are specific provisions in the Code, relating to costs, security for costs
and damages, the court cannot invoke Section 151 on the ground that the same
is necessary for the ends of justice. Therefore, we are of the view that a court
trying a civil suit, cannot, in exercise of inherent power under Section 151 of
the Code, make an interim order directing the plaintiff to file an undertaking
that he will pay a sum directed by the court to the defendant as damages in case
he fails in the suit.”
34. In Vinod Seth (Supra) the Hon’ble Apex Court clearly held that as
the provisions of the Code are not exhaustive, Section 151 was intended to
apply where the Code does not cover any particular procedural aspect, and
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interests of justice require the exercise of power to cover a particular situation.
Section 151 was not a provision of law conferring power to grant any kind of
substantive relief. It was a procedural provision saving the inherent power of
the Court to make such orders as may be necessary for the ends of justice and
to prevent abuse of the process of the Court. It cannot be invoked with
reference to a matter which is covered by a specific provision in the Code. It
cannot be exercised in conflict with the general scheme and intent of the Code.
It cannot be used either to create or recognize rights, or to create liabilities and
obligations not contemplated by any law.
35. The scope of Section 151 CPC is well settled. The inherent powers
cannot be invoked by the Court when there is specific provision under the Code.
It can also not be invoked if there is a contrary provision. But when there is no
provision or no specific provision applicable to meet special situation, and there
is also no prohibition, and the ends of justice require or to prevent the abuse of
the process of the Court, it is so necessary, the Court can invoke the inherent
power to achieve that end, saved by Section 151 CPC.
36. Since it is not a case of abandonment or withdrawn or substitution,
this Court is certainly of the view that the learned trial Court, had the power to
allow the application for transposition of the 2nd defendants as plaintiff, under
its inherent power saved by Section 151 CPC. The contention of the learned
counsel for the petitioner that in view of the specific provision under Order 23
Rule1A CPC the inherent powers could not be invoked under Section 151 CPC is
unacceptable. This Court has already held that Order 23 Rule 1 A CPC is not
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applicable. Any other specific provision for transposition in such circumstances
could not be pointed out. Section 151 CPC, saves the inherent powers of the
Court to make such order, as may be necessary for the ends of justice and to
prevent the abuse of process of the Court.
37. In the fact situation of the present case, the learned trial Court has
rightly invoked its inherent powers in the interests of justice and to prevent the
abuse of the process of the Court, there being no specific provision to meet the
situation and there being no prohibition as well.
38. This Court is of the view that for the purposes of transposition, the
petitioner has no case to oppose. The entire endeavour of the petitioner
appears to be not to transpose the 2nd defendant so that the suit may not
proceed in the absence of plaintiff, as the sole plaintiff is already dead and the
suit is for recovery of possession of the plaint schedule property after ejecting
the 1st defendant and his tenants. The petitioner in such a way cannot be
permitted to hamper and install the proceedings of the suit filed in the year
1995.
39. Thus, considered. I do not find any force in the civil revision petition
which deserves to be dismissed.
40. The Civil Revision Petition is dismissed.
41. The learned trial Court shall make endeavour to decide the
O.S.No.104 of 1995 expeditiously, as was also previously directed in CRP Nos.
3697, 3893 and 4049 of 2012, vide judgment dated 28.12.2017, preferably
within a period of one year from the date of receipt of copy of this judgment.
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42. No order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in
consequence.
_______________________
RAVI NATH TILHARI, J
Date: 09.05.2025
Dsr
Note:
LR copy to be marked
B/o
Dsr
2025:APHC:18793
