AURANGZEB, J.- Through this constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following relief: - "On acceptance of this writ Petition the impugned Judgments Orders & decree dated 17.12.2021 & 19-12-2020 of respondent No.2 and the judgment, order and decree dated 20-07-2022, of respondent No. 3 may graciously be set-aside and the petitioner may graciously be allowed to defend his case on merits as his natural and constitutional right.
Any other relief deem necessary by this honorable court and have not been specifically prayed for, may also be granted'".
02. In essence, respondent/plaintiff Mir Akbar instituted a suit against the petitioner/defendant Sana Ullah and others for declaration, possession and permanent injunction in respect of suit property in lieu of debt to the tune of Rs.47,70,000/- which the predecessor of the petitioner/defendant had borrowed. The suit was initially decreed exparte vide order dated 26.09.2018. However, later on, on the application of the present petitioner/defendant, the said exparte decree was set aside vide order dated 07.09.2020 subject to payment of cost of Rs.20,000/- to be paid to the respondent/plaintiff by the petitioner within 15 days with further direction that in case of failure of payment of cost, right of defense of petitioner/defendant would be struck-off as per Order VIII Rule 11 and 12 CPC. He was further directed to submit detailed memorandum. The petitioner/defendant failed to comply with the Court order, therefore, notice under Order XVII Rule 3 CPC was given to him. However, he failed to comply with the Court directions, therefore, the learned trial court vide order dated 19.12.2020 struck off the defence of the petitioner/defendant and the suit of the respondent/plaintiff was again decreed, in favour of the respondent/plaintiff against the petitioner/defendant. Feeling aggrieved by the said judgment/decree dated 19/12/2020, the petitioner/defendant filed an application under section 151 Cr.P.C for recalling of the said judgment/decree dated 19/12/2020, which was contested by the respondent/plaintiff by filing reply. The learned Trial Court, after hearing arguments of the learned counsel for the parties, dismissed the said application with costs, vide order dated 17/12/2021.
Feeling dissatisfied, the petitioner/defendant filed Civil Revision No.4/CR of 2022 before the Appellate Court, which was dismissed vide judgment dated 20.07.2022 by the learned Additional District Judge-IV, Peshawar. Hence, the instant writ petition.
3. Arguments heard and record perused.
4. Perusal of the record depicts that suit filed by the respondent for declaration, possession and permanent injunction against the petitioner was initially decreed exparte, however, on the application of the petitioner, the said suit was restored but subject to costs of Rs.20,000/-. "The learned Trial Court also directed the petitioner to submit detailed memorandum as per Order VIII Rule 11 and 12 CPC. However, the petitioner failed to comply with the directions of the learned Trial Court, despite availing several opportunities for doing the needful. It is also reflected from perusal of the record that the petitioner was aware of the proceedings in the main case which were restored on his application and he was well aware of the decree dated 19.12.2020, which was appealable under section 96. He could also file a review, but did not choose the right way to file an appeal or review. The petitioner filed an application under section 151 CPC for setting aside the judgment/decree of the learned Trial Court, which was dismissed. Section 151 CPC is reproduced as under: - "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 be exercised after recording reasons) to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court".
05. Bare reading of section 151 CPC revealed that it grants inherent power to to civil Court to make orders necessary for the ends of justice or to prevent abuse of the process of the Court. These powers are not expressely mentioned in the CPC but are recognized as essential for the Court to function effectively e.g.
(i) The Court can pass any order to meet the end of justice, it can prevent misuse of procedure.
(ii) It is exercised when no specific provision exist in CPC for particular situation, i f a remedy is already provided elsewhere in CPC section 151 cannot override it.
(iii) The Court can take action against vexatious or fraudulent litigation, it can recall or modifyorders obtained through fraud or misrepresentation.
(iv) The Court can stay proceedings to prevent injustice, however, it cannot override express provision of CPC.
(v) If the case dismissed due to procedural lapses, the Court can restore it under section 151 CPC, the Court can pass necessary order in situation where CPC is silent.
However, it cannot be used to override express provision of Civil Procedure Code, 1908 and it shall not contradict specific statutory remedies and it cannot be used to reopen decided matters.
Section 151 CPC ensures that the Court has residual authority to act in the interest of justice and prevent abuse of process, but it cannot be used to contradict or override express provision of the Civil Procedure Code, 1908.
Reliance in this respect is placed on the judgment reported as "Waqar Ahmed Siddiqui and 3 others vs. Mst. Shehnaz Parveen" (2019 CLC 369), wherein it is held that: - "S. 151---Inherent powers of the Court, exercise of---Scope---When a lis was decided between the parties by a competent Court of law then, the Court which passed the judgment and decree becomes functus officio' and thus under law, could not re-open the matter except under available provisions of law---In such a situation, S. 151, C.P.C. was of no help, as the inherent jurisdiction could only be exercised by a Court of law during pendency of the suit/lis and that too when no other appropriate provision of law/remedy was available. "
Similarly, in the case reported as "Saifuddin vs. Zainuddin and another" (2017 CLC 1741), it is held that:- "---151---Inherent jurisdiction of High court----Applicability-----Inherent jurisdiction under section 151 CPC can only be invoked when no specific provision to meet a particular situation is available in Civil Procedure Code, 1908---Provisions of section 151 CPC cannot be invoked to defeat the provisions of C.P.C., nor can they be invoked to condone gross negligence of a party in a matter"
Reliance can also be placed on the judgment reported as "Asif Mannan and 9 others vs. Suleman Lallani and 9 others" (2020 CLD 1095), wherein, it is held as under: - "----S. 151---Inherent powers of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of process of Court, exercise of---Nature and scope of jurisdiction of civil courts under S. 151, C.P.C.---Appropriate or specific provision if available for a relief being claimed under C.P.C.; then said relief could as a matter of right had to be granted and entertained necessarily under S. 151, C.P.C.---Civil Procedure Code, 1908, was not exhaustive; and did not lay down rules for guidance in respect of all situations nor did it seek to provide rules for decision for conceivable cases---Civil Courts were authorized to pass such orders as may be necessary for ends of justice, or to prevent abuse of the process, but where an express provision was made to meet a particular situation such express provision of C.P.C. must be observed, and departure therefrom was not permissible---Inherent jurisdiction of court to make order ex debito justitiae was undoubtedly affirmed by S. 151, C.P.C., but such jurisdiction could not be exercised so as to nullify other provisions of C.P.C.---Where provision of C.P.C. dealt with expressly with a particular matter, then such provision should normally be regarded as exhaustive--Inherent powers of the Court were in addition to the powers specifically conferred by C. P.C. and were complementary to such powers and therefore it must be held that the Civil Courts were free to exercise same for purposes mentioned in S. 151 when exercise of such powers was not in any way in conflict with what had been expressly provided in C.P.C.---Civil Courts could not make use of special provisions of 5.151, C.P.C. where a party had remedy provided elsewhere in C.P.C. and neglected to avail himself of the same and furthermore power under 5.151, C.P.C. could not be exercised as appellate power".
6. A Court has the power to "strike off' a defendant's defence, meaning to essentially dismiss their defence in a case, if they repeatedly fail to comply with Court orders, demonstrate blatant disregard for the proceedings, or do not actively participate in the case despite being given reasonable opportunities to do so, this is typically considered a harsh action and should only be taken in extreme circumstances where the defendant is clearly abusing the legal process.
7. I find no illegality, irregularity or jurisdictional defect in the impugned judgments/orders of the learned lower for a, calling for interference.
8. For what has been discussed hereinabove, this writ petition being bereft of any merit is hereby dismissed.