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2000 DIGILAW 452 (ORI)

Bhabani Panda alias Das v. Santosh Kumar Panda

2000-09-14

P.K.MISRA

body2000
ORDER This application has been filed for recalling the order dated 7.8.2000. The main ground in support of such petition is to the effect that the applicant, who was the opposite party No.1 in the writ application, had entered appearance by filing Vakalat¬nama on 1.8.2000 and yet in the Cause-List dated 7.8.2000, the names of the counsels were not indicated and as such the opposite party No.1 could not be heard. It is also submitted, in the alternative, that in the notice which had been sent, 20.7.2000 was indicated to be the date of appearance, but, in fact, the notice was served on opposite party No. 1 on 29.7.2000 and thus, the notice was ineffective and without issuing fresh notice, the writ application should not have been taken up for disposal, 2. Affidavit of opposite party No.1 himself was filed in support of such averments. The relevant portions contained in the petition are extracted hereunder : “ 2. That the notice of the present writ application was served on the opp. party No.1 on 29.7.2000 by registered post and the opp. party No.1 entered appearance through his Advocate by filing Vakalatnama on 1.8.2000. 3. That the name of the counsel for the opp. party No. 1 did not appear in cause list despite filing of Vakalatnama on 1.8.2000 when the case was listed and order was passed on 7.8.2000. ** ** ** ** 5. That the opp.party No.1 humbly submits that the notice was served on opp. party No.1 on 29.7.2000 even though it was indicated that the opp. party No.1 is required to appear on 20.7.2000. The copy of the said notice form is made ANNEXURE-1 to this misc. petition. Hence the notice was served on opp.party No.1 after the date of appearance mentioned in the notice.” 3. It appears that pursuant to the order dated 23.5.2000 notice was sent by registered post fixing 20.7.2000 as the date of appearance. When the case was listed, Office was directed to point out if any opposite party has entered appearance. Again the matter was listed on 2.8.2000. The case wad adjourned to 7.8.2000 and the Office was directed to comply with the earlier direction. Subsequently, the Office pointed out that there had not been any appearance on behalf of any of the opposite parties. Again the matter was listed on 2.8.2000. The case wad adjourned to 7.8.2000 and the Office was directed to comply with the earlier direction. Subsequently, the Office pointed out that there had not been any appearance on behalf of any of the opposite parties. The writ application was disposed of on 7.8.2000 permitting the petitioner of the writ application to file fresh application before the trial Court. Thereafter, the present petitioner for recalling the order dated 7.8.2000 has bee filed on the grounds aforesaid. 4. At the time when the present petition was taken up on 4.9.2000, it was found that the assertion of the present opposite party No.1 that he had entered appearance on 1.8.2000 was incor¬rect. The case was adjourned to next day as Mr. Rath for the applicant wanted to file a fresh affidavit. Subsequently, a fresh affidavit has been filed wherein it is indicated that the oppo¬site party No.1 had handed over the Vakalatnama to Sri. G. Rath on 30.7.2000 to appear in the said case in the High Court. It is further stated that Shri G. Rath had handed over the Vakalatnama to his junior Advocate on 1.8.2000 instructing him to file the same. Affidavit of opposite party No.1 is also filed on 4.9.2000 stating that he had handed over the Vakalatnama to Shri G. Rath on 30.7.2000. 5. A verification of the Vakalatnama which was filed along with the petition for recalling indicates that it had been signed on 8.8.2000. It is apparent that the assertion in the petition for recalling is inconsistent with the subsequent affidavits filed by Junior of Shri G.Rath as well as by opposite party No.1 himself. The assertion in the affidavit that the Vakalatnama was handed over on 30.7.2000 does not appear to be correct in view of the fact that the Vakalatnama is purported to have been signed on 8.8.2000. 6. If the case would have been taken up before the date of service of notice, it would have been a case deciding the matter in absence of other party which is violative of the principles of natural justice. In the present case, admittedly notice was served on 29.7.2000. The case was, in fact, adjourned to 2.8.2000 and was ultimately taken up on 7.8.2000. 7. In the present case, admittedly notice was served on 29.7.2000. The case was, in fact, adjourned to 2.8.2000 and was ultimately taken up on 7.8.2000. 7. In this context, reliance has been placed on Order 9, Rule 6 (1) (c), C.P.C. It is submitted that since the notice had not been served on the date fixed, it was the duty of the Court to postpone the hearing of the case to a future date and direct that fresh notice shall be given to the opposite parties. If the procedure adopted by the High Court in dealing with writ peti¬tions is entirely governed by the Civil Procedure Code, there cannot be any doubt that when the notice is served after the date fixed for appearance, the Court has to fix a fresh date and issue fresh notice. However, in view of the provision contained in Sec. 141, C.P.C., the provisions of the Code of Civil Proce¬dure are not ipso facto applicable to the writ jurisdiction under Arts. 226 and 227 of the Constitution of India. The matters relating to hearing of writ application and service of notice are contained in the High Court Rules. It is well known that in ordinary Civil Court, a case is taken up on date to date basis and if not served by the date fixed, it is quite possible that the party would not be aware of the subsequent date. On the other hand, in the High Court, cases are not adjourned from date to date and once the date of appearance is over, cases are always taken up in accordance with the Cause-list prepared by the Court. Thus the underlying principle of Order 9, Rule 6 (1) (c), C.P.C. is not applicable to the procedure before the High Court. In High Court since Cause-list of cases if published, the cases are to be taken up in accordance with the Cause-list and it is not neces¬sary for fixing any particular date in the order-sheet. Thus, the contention that in view of Order 9, Rule 6 (1) (c), C.P.C. the Court had no jurisdiction to hear the matter and should have postponed the case to a future date and issued fresh notice, cannot to be accepted. 8. Thus, the contention that in view of Order 9, Rule 6 (1) (c), C.P.C. the Court had no jurisdiction to hear the matter and should have postponed the case to a future date and issued fresh notice, cannot to be accepted. 8. The learned counsel for the applicant is placed reliance on the decision reported in (1999) 6 Supreme Court Cases 667 (Common Cause, a Registered Society v. Union of India and others) in support of the contention that the High Court has power under Art. 226 of the Constitution of India, if the Court in exer¬cise of power has itself committed a mistake, it has the plenary power to correct its own mistake. In the present case, since the case has been taken up long after service of notice even though the date of appearance had expired by the date of notice, it cannot be said that the Office or High Court has committed any mistake by taking the matter on 7.8.2000. This contention is therefore not acceptable. 9. The learned counsel for the plaintiff further submitted that since the party had already entrusted the brief to the lawyer and due to the lawyer’s mistake appearance could not be effected before the case was taken up for hearing, the party should not suffer for the mistake of the lawyer, First of all, it is doubtful whether, in fact, the brief had been entrusted on 30.7.2000, keeping in view the date of Vakalatnama. Moreover, in the present case, the writ petitioner in the writ application has been given an opportunity to file fresh application and it has been directed that such application is to be disposed of in accordance with law without being influenced by any observation made earlier and as such it cannot be said that any substantial prejudice has been caused to the applicant in the present appli¬cation. 10. The learned counsel for the application now submits that the order did not come within the meaning of expression “case decided” and such the writ application against the revisional order should not have been entertained. I do not express any opinion on this aspect, as in my opinion, the order earlier passed is not likely to prejudice the present applicant as only an opportunity of filing fresh application has been given. 11. I do not express any opinion on this aspect, as in my opinion, the order earlier passed is not likely to prejudice the present applicant as only an opportunity of filing fresh application has been given. 11. The orders passed by a Court relating to progress of the suit do not operate as res judicata, though if a similar applica¬tion is already disposed of, ordinarily the Court may for similar reason reject fresh application. That does not mean that the party does not have any right to file fresh application giving better particulars. Notwithstanding the rejection of the earlier petition, the writ petitioner could have filed a fresh petition giving better particulars as to why the documents were required to be called and only such an opportunity has been afforded to the writ petitioner in the earlier order. Since no substantial prejudice has been caused to opposite party No.1, I do not think it necessary in the interest of justice to recall the earlier order. The petition is accordingly rejected. 12. The learned counsel has stated that the party should not suffer for the mistake of a lawyer. In support of such submis¬sion, reference has been made to the decisions reported in AIR 1981 SC 1400 (Rafiq and another v. Munshilal and another) and 1998 (II) OLR 201 (Dr. Pravat Ku. Sahoo v. State Administrative Tribunal and others). Since no substantial prejudice has been caused to present opposite party No.1, I do not consider it to be a fit case where the aforesaid principle would be applicable. 13. Learned counsel for the applicant stated that the pur¬pose of filing of this application for recalling is to expedite the hearing of the suit. It is stated that a fresh petition for recalling for documents has already been filed and objection by opposite party No.1 has also been filed, but because of the filing of the present petition, the further proceedings in Title Suit No. 118/510 of 1998-94 have been stayed. Since the petition for recalling is now rejected, the trial Court shall now proceed to consider the matter in accordance with law. Urgent certified copy of this order be granted on proper application by tomorrow. Petition rejected.