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2002 DIGILAW 369 (ORI)

HEMANTA KUMAR KAR v. SRIMANTA KUMAR KAR

2002-06-26

A.S.NAIDU

body2002
JUDGMENT : A.S. Naidu, J. - This Misc. Case has been filed with a prayer to recall the order dated November 11, 2001 passed in Criminal Misc. Case No. 3937 of 2001. The said Criminal Misc. Case was filed by the petitioner inter alia praying to quash/set aside the order of cognizance passed ICC No. 9 of 2000 by the learned S.D.J.M., Bhubaneswar. By the impugned order the court below on the basis of the initial statement of the complainant and on consideration of other materials available on record and on being prima facie satisfied that there were materials to reveal commission of an offence u/s 448, IPC (Amended), took cognizance of the offence. 2. In course of hearing of the Criminal Misc. Case when this Court was not inclined to quash the order of cognizance, Mr. B. C. Patri, learned counsel for the petitioner, submitted in Court that if time was allowed till the end of January, 2002, his client was willing to vacate the disputed premises. On the basis of the said submission, without entering into the arena of controversy, the Criminal Misc. Case was disposed of with direction that the case number ICC 9 of 2000 would remain stayed till 31st of January, 2002 and if the petitioner failed to vacate the disputed premises on or before 31st January, 2002 as undertaken by his counsel, the criminal proceeding would continue. It was further directed that if the undertaking given before this Court was not complied with, that would also amount to contempt of this Court. In the present petition, at the cost of repetition, it is reiterated that the said order is sought to be recalled. 3. It is pertinent to mention here that in the meanwhile, as per the submission made by the learned counsel for both sides, as the petitioner-tenant did not vacate the disputed premises as undertaken by his counsel, the complaint case has proceeded and has almost reached the conclusion stage. 4. Mr. B. S. Tripathy, learned counsel for the petitioner engaged in place of Mr. B. C. Patri, forcefully submitted that the petitioner never authorised his counsel Mr. Patri to undertake to vacate the premises and the said submission made by the learned counsel was without any authority. It is further submitted that in the absence of any instruction, the learned counsel lacked competence to make any concession. B. C. Patri, forcefully submitted that the petitioner never authorised his counsel Mr. Patri to undertake to vacate the premises and the said submission made by the learned counsel was without any authority. It is further submitted that in the absence of any instruction, the learned counsel lacked competence to make any concession. In support of his submission, Mr. Tripathy has produced the office copy of the registered letter issued by the petitioner to Mr. Patri on 3.12.2001. Mr. Tripathy, relying upon the decisions reported in P.K. Vasudeva Vs. Zenobia Bhanot, 1993 (1) OLR 487 (State of Orissa v. Ainul Haque) and AIR 2002 SCW 928 (Swami Krishnanand Govindanand v. M. D. Oswal Hosiery (Regd.)), submitted that after disposal of a case, the Court has jurisdiction to recall the order if it is satisfied that the order was passed on the basis of a wrong concession made by the counsel who had no authority or competence to advance such concession. 5. Mr. Susanta Kr. Das, learned counsel for the opposite party, on the other hand strenuously argued that after disposal of the criminal case, the Court has become functus officio and has no jurisdiction either to recall or vary the order, and that the only course open to the petitioner is to approach the higher court for anullment of the order. 6. I have heard the learned counsel for both sides in extenso and perused the office copy of the registered letter said to have been issued by the petitioner to his counsel. The said letter clearly indicates that the petitioner at no point of time had authorised Mr. Patri, his counsel, to offer any concession. After hearing the learned counsel for the parties and perusing the decisions cited, the legal position of which is no more res integra, I feel that in view of the peculiar facts and circumstances of the case, it would be just and proper not to interfere with the order of cognizance passed by the learned court below, more so when the case has already proceeded and reached the conclusion stage, but to delete the portion of the order dated November 11, 2001 which was passed on the concession of the learned counsel. 7. Accordingly, I dispose of the Misc. 7. Accordingly, I dispose of the Misc. case and delete the last sentence of the order dated 22.11.2001, i.e. "It is further made clear that if the undertaking given before this Court is not complied with, it will also amount to contempt of this Court."