JUDGMENT S.C. Mathur, J. 1. The appellant in the second appeal has made this application for recall of judgment and order dated 26101989 passed by a learned Single Judge of this Court, who has since retired, on the ground that the said judgment is a nullity inasmuch as it was rendered without giving opportunity of hearing to the applicant. 2. Applicant was defendant in a suit for eviction and recovery of arrears filed by the respondent Smt. Kishwar Jahan. Against the decree passed by the court below he had preferred second appeal in this Court. This second appeal was dismissed on merits by the learned Single Judge on 26101989 observing therein that he had heard the learned counsel for both the parties. This statement in the judgment of the learned Single Judge is seriously disputed by the learned counsel for the appellant. He submits that neither he had notice of the appeal nor he argued the appeal before the learned Single Judge. According to him the case was not shown either in the main causer list or in supplementary cause list nor any notice of hearing was given to him. 3. The application was described as one under section 151 read with Order XLVII Rule 1 of the Code of Civil Procedure. However, no ground has been raised in the application relatable to Order XLVII Rule 1. The only ground raised is relatable to section 151 C. P. C. In fact in the prayer clause section 151 alone has been invoked and not Order XLVII Rule 1. 4. The application has been opposed on behalf of the respondent who has filed application for rejection of the application which is supported by an affidavit, which may be treated to be counter affidavit to the present application. 5. 4. The application has been opposed on behalf of the respondent who has filed application for rejection of the application which is supported by an affidavit, which may be treated to be counter affidavit to the present application. 5. In the counter affidavit it has been asserted that the deponent was informed by Sri Faiyazuddin, Clerk of Sri Qamar Ahmad, Advocate of the respondent that he had received notice on 25101989 that the case will be taken up on that very day and that on receipt of that notice he informed the respondent's learned counsel Sri Qamar Ahmad, who thereafter appeared before the learned Judge and expressed his inability to argue the case on that day as he did not have the file of the case whereupon the learned Judge informed Sri Ahmad that he had already heard the learned counsel for the appellant and that Sri Ahmad may argue the case the next day. The deponent further asserts that Sri Faiyazuddin informed him that Sri Qamar Ahmad argued the case the next day and the judgment was also delivered on that day. 6. In the above counter affidavit it is nowhere stated that Sri Faiyazuddin informed the deponent that the learned counsel for the appellant had also appeared before the learned Judge either on 25101989 or on 26101989. It is also not stated that the notice which was received by Sri Faiyazuddin wag addressed also to the learned counsel for the appellant. At the time of hearing Sri Qamar Ahmad admitted that Sri Tilhari, the learned counsel for the appellant, was not heard in his presence. This statement has been recorded in the order sheet of 1881990 which reads as follows : Sri Qamar Ahmad learned counsel for the respondent admits that Sri Tilhari was not heard in the Second Appeal in his presence. When this application came up on 821990 before a Division Bench comprising Hon'ble K.C. Agarwal, A.C.J., as he then was and Hon'ble B.L. Loomba, J., as he then was, Sri Tilhari, the learned counsel for the appellant, had stated that he had not appeared before the Court either on 25th October or 26th October or on any other date. Sri Tilhari had further stated that he had not received any notice from the Court and, therefore, there was no occasion for him to argue. Sri Tilhari had further stated that he had not received any notice from the Court and, therefore, there was no occasion for him to argue. This assertion of Sri Tilhari finds place in the order of the Court dated 821990. 7. Sri Tilhari is a responsible Advocate of this Court and we see no reason to disbelieve his statement that he had not received any notice of the hearing of the second appeal when the second appeal is alleged to have been argued by him. Sri Tilhari's assertion finds support from the counter affidavit filed on behalf of the respondent, from the statement of Sri Qamar Ahmad, Advocate and also from the record of the second appeal and the Progress Register. 8. The ordersheet of the second appeal shows that the hearing was expedited and the appeal was directed to be listed in the month of March, 1988. The appeal was actually listed on 2931988 but could not be heard as lower court record had not been received. Thereafter it was listed on several dates. 6101989 is also shown to be a date fixed in the appeal but it appears from the cause list of that date that it was not actually listed. Relevant extract from the cause list has been filed by the applicant as Annexure1 to the affidavit filed in support of the application. The respondent also does not assert that the case was shown in the cause list of 6101989. Thereafter the ordersheet shows fixation of the case on 25101989. However, the cause list of this date also does not contain this case. Relevant extract from the cause list of 25101989 has been filed as Annexure2 to the said affidavit. About this also there is no dispute raised by the respondent. The ordersheet of 25101989 contains the following order : 251089 Hon. D. S. Bajpai, J. Heard learned counsel for the appellant. Learned counsel for the respondent prays for and is allowed time to study the case and argue tomorrow. Put up tomorrow as a partheard case for further argument and disposal. 25101989............Sd/.......... 9. Thereafter the ordersheet of 26101989 contains the following order : 25101989 Hon. D.S. Bajpai, J. Arguments concluded. As per detailed judgment given on separate sheets the second appeal fails and is dismissed with costs. Put up tomorrow as a partheard case for further argument and disposal. 25101989............Sd/.......... 9. Thereafter the ordersheet of 26101989 contains the following order : 25101989 Hon. D.S. Bajpai, J. Arguments concluded. As per detailed judgment given on separate sheets the second appeal fails and is dismissed with costs. The judgment and decree passed by the trial court on 2051985 and the judgment and decree passed by the lower appellate court on 2391986 are affirmed. The interim order of stay passed by this Court on 17101986 shall stand vacated. 26101989............... Sd/ 10. On the Progress Register of the Second Appeal Section there is a slip pasted which reads as follows : Court No. 4 S. A. 55486. Shakir Khan P.A. 25101989. 11. After 27789 there is an asterisk mark. Reference of this asterisk mark is available at the top of the page where it is mentioned 61089,, 251089, 271089. The learned counsel for the applicant submitted that these dates have been subsequently entered in the register to give justification for sending the Paper Book to Court on 25101989, He points out that there was no occasion for the date 271089' to be mentioned in the Progress Register as nothing happened on this date. 12. From the slip pasted on the Progress Register it is apparent that the Paper Book was sent from the Section on the requisition received from the Court signed by the Personal Assistant of the learned Judge concerned. The circumstances in which this requisition was sent are shrouded in mystery. Normally paper books are requisitioned from the Section by the Bench secretaries. 13. When a case is omitted to be published in the causelist through oversight or otherwise, a supplementary notice is issued under the signatures of one of the Registrars. Where no such notice is issued, a notice is issued to the counsel concerned. In the present case, according to the assertion made by the applicant, neither any supplementary notice was issued nor a counsel notice was issued. About the former there is no dispute. About the latter the respondent asserts that the clerk of his counsel had received notice. From where that notice had been issued is again not clear. Copy of no such notice is available on the record. About the former there is no dispute. About the latter the respondent asserts that the clerk of his counsel had received notice. From where that notice had been issued is again not clear. Copy of no such notice is available on the record. Even if we accept that notice was issued as asserted by the respondent it may have been served upon the clerk of the respondent's counsel but its service upon the counsel for the appellant is not established; in fact it is not even asserted. 14. It is elementary principle of natural justice that no one can 'be condemned without giving him opportunity of hearing. In the present case it is not merely a question of natural justice but there are statutory provisions which require opportunity of hearing to be given. Such provisions are Order XLI Rule 11 and Order XLI Rule 16. Order XLI Rule 16 as amended by this Court reads as follows : 16. Right to begin (1) When the appeal is called on for hearing the appellant shall be heard in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply. Under this provision the appellant gets two opportunities to address the Court. If the respondent is called upon to address the Court the appellant gets another right to address the arguments. If the Court is not satisfied with the arguments of the appellant it can proceed to dismiss the appeal without calling upon the respondent to advance arguments. Once the respondent has been called upon to address arguments the appellant gets another opportunity to address the Court in order to reply to the submissions made on behalf of the respondent. The procedure prescribed in this Rule obviously contemplates advancement of arguments by one party in the presence of other as far as possible. In the present case this procedure was not adopted. Instead it appears that hide and seek was played. Sri Tilhari argues in the absence of Sri Qamar Ahmad and Sri Qamar Ahmad argues in the absence of Sri Tilhari without one counsel knowing the argument which has been advanced by the other side. In the present case this procedure was not adopted. Instead it appears that hide and seek was played. Sri Tilhari argues in the absence of Sri Qamar Ahmad and Sri Qamar Ahmad argues in the absence of Sri Tilhari without one counsel knowing the argument which has been advanced by the other side. The right of rejoinder has been prescribed under subrule (2) of Rule 16 with the obvious purpose of giving the appellant an opportunity to meet the submissions of the respondent. No effective hearing in accordance with Rule 16 can be said to have taken place if this procedure is not followed. The Court will atleast have to give opportunity to the parties to follow this procedure. In the present case the record does not indicate as to why ibis procedure was not possible to be followed. The counter affidavit also does not throw any light as to why the extraordinary procedure stated by the respondent was followed. There is intrinsic evidence available on the record which establishes that neither Sri Tilhari had notice of dates on which the appeal is claimed to have been heard by the learned Judge nor he was actually heard. The statement in the judgment that the learned counsel for the appellant was heard cannot be relied upon. 15. In view of the above, it is apparent that the judgment dated 261089 was rendered without giving opportunity of hearing to the appellant. The said judgment is accordingly a nullity and has no legal existence. It was the duty of the Court to provide opportunity of hearing to the appellant. This duty not having been performed the appellant is entitled to be restored to the position obtaining prior to the passing of the judgment. In pursuance of the judgment the applicant has been dispossessed from the accommodation in question. He will have to be restored to possession before the appeal is heard on merits. 16. For the view that we have taken no authorities are required as the proposition is well settled. However, we may refer to the three decisions cited by Sri H.N. Tilhari. These are (1) AIR 1922 Privy Council 269 Jai Berham and others v. Kedar Nath Marwari and others, (2) AIR 1961 Supreme Court 832, Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others, and (3) AIR 1958 Supreme Court 86 State ofU. P. v. Mohammad Nooh. However, we may refer to the three decisions cited by Sri H.N. Tilhari. These are (1) AIR 1922 Privy Council 269 Jai Berham and others v. Kedar Nath Marwari and others, (2) AIR 1961 Supreme Court 832, Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others, and (3) AIR 1958 Supreme Court 86 State ofU. P. v. Mohammad Nooh. In the last case it has been held by their Lordships that order passed without giving opportunity of hearing is nullity and in the first two cases it has been held that no suitor can be prejudiced on account of the default or negligence of the Court or its officers in the discharge of their duties, 17. Sri Qamar Ahmad, learned counsel for the respondent has relied upon AIR 1964 Supreme Court 377 Bank of Bihar v. Mahabir Lal and others, for submitting that a statement contained in the judgment of the Court cannot be lightly brushed aside. In paragraph5 of this judgment their Lordships observed as follows : In our opinion where a statement appears in the judgment of a court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless of course both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous. If the High Court had proceeded on an erroneous impression that the money was taken along with him by Ram Bharose Singh to Patna, there was nothing easier for the Bank than to prefer an application for review before the High Court after the judgment was pronounced or if the judgment was read out in court immediately draw the attention of the court to the error in the statement. Nothing of the kind was done by the Bank.... (Emphasis supplied). We have no doubt in our mind that a statement contained in the judgment of the Court should have the highest respect. However, in the present case there is strong evidence to show that the said statement is incorrect. We are sorry to say that this is not the only case in which learned Judge concerned has acted in this manner. The learned counsel for the applicant has invited our attention to another case decided by the same learned Judge in the same manner. We are sorry to say that this is not the only case in which learned Judge concerned has acted in this manner. The learned counsel for the applicant has invited our attention to another case decided by the same learned Judge in the same manner. This is Second Appeal No. 266 of 1979. In that case also the learned Judge had made the observation that he had heard counsel for both the parties. However, counsel for both the parties admitted before the Bench that they had not been heard. The Bench while setting aside the order of the learned Judge observed as follows : 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 cannons of justice. In this case judgment was delivered by the learned Judge on 25101989. The learned Judge thereafter retired from office on 31101989. 18. In the case on hand the applicant has proceeded in accordance with the observations contained in the judgment of their Lordships in Bank of Bihar case (supra). Their Lordships have observed that where judgment is delivered in open Court protest about the wrong statement should be made immediately and where judgment is delivered subsequently protest should be made soon thereafter. In the case before their Lordships the protest was not made in the High Court itself but was made before their Lordships. In the present case the protest has been made by the applicant as soon as he acquired knowledge of the judgment. The applicant was dispossessed from the accommodation in question on 2911990 and it was only thereafter that he made inquiries in the office and came to know about the judgment dated 26101989. The present application was filed on 221990. The applicant cannot be charged with laches. He has acted with promptitude. Before making the application he obtained information from the various Sections by filing search applications. 19. Learned counsel for the respondent has submitted that the application is barred by time under Article 124 of the Limitation Act as it has been filed beyond 30 days. That period of limitation has been prescribed in respect of a review application. Before making the application he obtained information from the various Sections by filing search applications. 19. Learned counsel for the respondent has submitted that the application is barred by time under Article 124 of the Limitation Act as it has been filed beyond 30 days. That period of limitation has been prescribed in respect of a review application. We have held hereinabove that the present application is not for review under Order XLVII Rule 1 but is an application under section 151 C.P.C., and the judgment and order which is sought to be recalled is a nullity. On these facts Article 124 of the Limitation Act is not attracted. 20. In support of his plea of limitation learned counsel cited 1987 All LJ 9 S.G. Jilani v. Raghubir Singh. That was indeed a case in which review was sought under Order XLVII C.P.C. This case has no application to the facts of the present case. 21. AIR 1976 Allahabad 159 Sohan v. Abdul Hameed Khan was cited in support of the proposition that where an application is filed beyond the period of limitation there should be an application under section 5 of the Limitation Act and each day's delay should be explained. In view of our finding that the present application is not barred by time this authority is irrelevant. 22. AIR 1964 Allahabad 342 F.G. Davidson v. Mohanlal Sindhi was cited for pointing out the grounds on which review of a judgment may be claimed under Order XLVII Rule 1 C. P. C. This authority is also irrelevant in view of our finding that the present application is not an application for review but an application for recall of the judgment on the ground that the same is nonest in the eye of law. 23. It was next submitted that the applicant alleges that fraud has been practised in obtaining the judgment and, therefore, the remedy lies in taking proceedings under sections 195 and 340 of the Code of Criminal Procedure. The mere fact that an action amounts to crime does not debar a party from claiming civil right which is also available to him. In the present case the applicant has chosen to vindicate his civil right. The mere fact that an action amounts to crime does not debar a party from claiming civil right which is also available to him. In the present case the applicant has chosen to vindicate his civil right. That right cannot be denied to him on the mere basis that the facts on the basis of which recall of order has been claimed amount also to commission of an offence. 24. Learned counsel then invited our attention to Writ Petition No. 4698 of 1987, Shanker Rice Mill and others Vs. U.P. State Electricity Board, Lucknow and another, decided on 3051990 for submitting that cases are heard at this Bench in the manner the present second appeal was heard by the learned Judge. According to the learned counsel the third Judge pronounced the opinion on 751990 without listing of the case for the purpose. He also invited our attention to Writ Petition No. 2887 of 1990, C.M. Shukla Vs. Union of India and others in which grievance has been made that uniform practice is not being observed at this Bench in the listing of cases. 25. Writ Petition No. 4698 of 1987Shanker Rice Mill and others Vs. U.P. State Electricity Board and anotherhad been connected with several writ petitions including Writ Petition No. 7058 of 1986Modi Steels (Unit of Modi Industries Ltd.,) Modinagar, Ghaziabad Vs. U P. State Electricity Board and others. The writ petitions were heard by a Division Bench but there was difference of opinion between the Judges constituting the Bench whereupon reference was made to a learned Third Judge to resolve the disputed question. The learned Third Judge after hearing the arguments pronounced his opinion on 751990. This was done after fifth supplementary notice had been issued on that date. A copy of supplementary notice is available on the record of Writ Petition No. 4698 of 1987 in which Sri Qamar Ahmad, who is counsel for the respondent in the present case, was counsel for the petitioner in that case. After the opinion had been pronounced Sri Qamar Ahmad made application on 2651990 asserting that the opinion was nullity and the same deserved to be recalled. The plea was found to be factually incorrect and Sri Qamar Ahmad's application was rejected by Court's order dated 3051990. After the opinion had been pronounced Sri Qamar Ahmad made application on 2651990 asserting that the opinion was nullity and the same deserved to be recalled. The plea was found to be factually incorrect and Sri Qamar Ahmad's application was rejected by Court's order dated 3051990. With reference to Writ Petition No. 4698 of 1987 it cannot, therefore, be said that the practice followed in the present appeal was followed in that writ petition also. It may also be pointed out that it is not the case of Sri Qamar Ahmad that at the time of hearing the learned Third Judge did not give him opportunity of hearing. His grievance related only to noncommunication of the date of pronouncement of opinion. In the present case we are not holding any general inquiry into the working of the Lucknow Bench as has been claimed by Sri C.M. Shukla petitioner of Writ Petition No. 2887 of 1990. If in that case it is found that there is any defect in the working of this Bench that defect may be rectified but on the basis of the defects alleged in that writ petition the order which on the face of it is a nullity cannot be allowed to stand; the said order will have to be set aside. 26. In view of the above the application is allowed and the judgment and order dated 26101989 is declared to be null and void and is hereby recalled. Since the respondent has obtained possession of the property in dispute on the basis of that order the appellant shall be restored to possession of the said accommodation. The respondent is accordingly directed to hand over possession of the accommodation in dispute to the appellant within one week. List for further orders on 591990. The second appeal shall be listed for hearing after the appellant has been restored to possession of the accommodation in question.