NEETA MEHRA Vs. SANJAY MEHRA

JUDGEMENT

(1.) By this revision petition filed under Section 115 read with Section 151 CPC, the petitioner seeks to challenge the order dated 30 th September, 2009 whereby the learned Trial Court directed restoration of the divorce petition filed by the respondent on the application moved by him under Section 151 CPC.

(2.) Assailing the said order, learned counsel appearing for the petitioner submits that the learned Trial Court committed jurisdictional error by invoking the power under Section 151 CPC to restore the divorce petition filed by the respondent when only remedy available to the respondent was to file an appeal in terms of order 43 Rule 1 (c) read with Section 151 CPC. The contention of the counsel for the petitioner is that the divorce petition filed by the respondent was dismissed in default on account of the non-appearance of the respondent and his Advocate on 29.10.2010 and thereafter to seek restoration of the petition the respondent had moved an application under Order 9 Rule 4 CPC, which too was dismissed for nonprosecution by the learned Trial Court vide order dated 16.5.2011, but the said order was illegally recalled by the learned Trial Court on the application moved by the respondent under Order 151 CPC. The counsel also contends that the order dated 16.5.2011 passed by the learned Trial Court in fact was an order on merits and the same could not have been recalled by the learned Trial Court in exercise of its inherent power under Section 151 CPC. Counsel also submits that even the limitation period to challenge the said order dated 16.5.2011 has expired and, therefore, without seeking remedy of filing an appeal, which again could be filed after seeking condonation of delay in filing such an appeal. The counsel thus submits that the order passed by the learned Trial Court under Section 151 CPC for recalling the order dated 16.5.2011 is patently illegal and perverse. Counsel also submits that valuable right accrued in favour of the petitioner with the dismissal of the application of the respondent under Order 9 Rule 4 CPC, which right of the petitioner could not have been defeated by the learned Trial Court by exercising inherent powers of the Court that too in the face of specific legal remedy available under law. In support of his arguments counsel for the petitioner placed reliance on the judgment of the Apex Court in Manohar Lal Chopra vs- Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 with special emphasis on para 21 of the same.

(3.) I have heard learned counsel for the petitioner at considerable length and given my thoughtful consideration to the arguments advanced by him.