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1990 DIGILAW 154 (ALL)

Shripal v. Chhotey Lal

1990-02-08

B.L.LOOMBA, K.C.AGRAWAL

body1990
JUDGMENT K.C. Agrawal, ACJ, and B.L. Loomba, J. 1. This is an application filed by Sri H. N. Tilhari, Advocate on behalf of the respondents of the Second Appeal No 266 of 79 for recalling the judgment given on 25th October, 1989 on the ground that the appeal was allowed on the aforesaid date by the learned Judge without the case being posted for hearing before him. He urged that neither were his arguments nor that of the counsel appearing for the .appellants were heard, either on 25th October, 1989 nor on any day before it. 2. On the last occasion, when the application was moved by the respondents, on our request the learned counsel appearing for the two sides stated that the judgment was given without hearing them. Even the appellants' counsel in whose favour was the second appeal decided, posed ignorance about the manner in which the appeal was decided. 3. In the counter affidavit filed on behalf of the appellants of the said second appeal, no averment or any version about the hearing taking place before the Judge has been given. Only legal pleas were taken for the maintainability of the application. Pursuant to the order passed on 2411990, the Additional Registrar has made enquiries and submitted a preliminary report stating that there was nothing on the record to indicate as to how did the file reach the learned Judge. On the report submitted by the Additional Registrar, the Acting Chief Justice will pass separate order to proceed administratively against the staff responsible for the fraud alleged to have been committed on the respondents. We are pained to observe that an appeal should be decided in the manner it was done in the instant case. Confidence in judiciary would be shaken if the files leak out of the office and judgments are obtained by an interested person in his favour ignoring all canons of justice. 4. Counsel for the opposite parties to this application, Sri A.K. Johri, contended that this Court could not use its inherent powers and allow the application filed under Section 151 of the Code of Civil Procedure, there being a specific provision made for review under Order 47 of the Code of Civil Procedure. He urged that Order 47 is exhaustive and a judgment can be reviewed only on the ground mentioned therein. He urged that Order 47 is exhaustive and a judgment can be reviewed only on the ground mentioned therein. According to his submission, as there existed no ground to recall the judgment, the application was liable to be rejected. We cannot accept the submission made. Section 151 CPC does not limit or otherewise affect the inherent powers of the Court in' the ends of justice. It is the bounden duty of the Court much more that of the High Court to interfere in a matter like the present. The facts demonstrated establish that the judgment has been obtained by illegal means and unjustified methods. 5. Sri A.K. Johri could not answer the question put by the Court as to whether his client was prepared to state that he was heard and, thereafter, judgment was given. In the circumstances mentioned above, we come to the irresistible conclusion that the manner in which the second appeal was allowed was fishy. 6. For what we have said above, we allow the application and recall the judgment of the Single Judge dated 25th October, 1989 and restore the second appeal to its original number. It would now be listed before a Hon'ble Single Judge to be nominated for this purpose.