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2006 DIGILAW 1104 (ALL)

MOHD. TAHIR KHAN v. MOHD. YUNUS KHAN

2006-04-25

S.P.MEHROTRA

body2006
JUDGMENT Hon’ble S.P. Mehrotra, J.—The aforementioned application has been filed on behalf of the petitioner/applicant, inter alia, praying for recall of the order dated 25th January, 2006 passed by me on Civil Misc. Petition/Application No. 52 of 2006, under Article 227 of the Constitution of India and for hearing and deciding the preliminary objection of alternative remedy raised by the respondents. 2. The said order dated 25th January, 2006 is reproduced below : “Shri Santosh Kumar, learned Counsel for the petitioner/applicant states that in view of the objection raised by the learned Counsel for the caveators, it is evident that the impugned order dated 17.1.2006 is appealable under Order XLIII, Rule 1(r) of the Code of Civil Procedure, and in the circumstances, the petitioner/applicant may be permitted to withdraw the present Petition/Application under Article 227 of the Constitution of India with liberty to pursue the aforementioned alternative remedy of Appeal. In view of the statement made by Shri Santosh Kumar, learned Counsel for the petitioner/applicant, the present Petition/Application under Article 227 of the Constitution of India is dismissed as withdrawn with liberty to pursue the alternative remedy of Appeal against the impugned order dated 17.1.2006. Shri Santosh Kumar, learned Counsel for the petitioner/applicant further prays that the certified copy of the impugned order dated 17.1.2006, filed as Annexure-9 to the present Petition/Application, may be directed to be returned to the petitioner/applicant so as to enable him to pursue the alternative remedy of Appeal Accordingly, it is directed that the certified copy of the impugned order dated 17.1.2006, filed as Annexure-9 to the Petition/Application, will be returned to Shri Santosh Kumar, learned Counsel for the petitioner/applicant within two days. It may be mentioned that typed copy of the said impugned order dated 17.1.2006 has also been filed as Annexure-9 to the present Petition/Application, and the same will be retained on record. Certified copy of this order will be issued to the learned Counsel for the parties on payment of usual charges within 24 hours." 3. The aforementioned Recall Application is supported by an Affidavit, sworn by Mohd. Tahir Khan (petitioner/applicant) on 5th February, 2006. 4. Certified copy of this order will be issued to the learned Counsel for the parties on payment of usual charges within 24 hours." 3. The aforementioned Recall Application is supported by an Affidavit, sworn by Mohd. Tahir Khan (petitioner/applicant) on 5th February, 2006. 4. It is, inter alia, stated in the said Affidavit that during the hearing of the Petition/Application under Article 227 of the Constitution of India, the contesting respondents raised an objection that the said Petition/Application was not maintainable on the ground of availability of alternative remedy of Appeal; and that under mis-conception, the petitioner/applicant withdrew the Petition/Application for filing Appeal which prayer was granted by the Court. 5. It is, inter alia, further stated in the said Affidavit that subsequently after reconsidering the question, the petitioner/applicant is advised to state that the Petition/Application under Article 227 of the Constitution of India is maintainable, and the alleged alternative remedy of Appeal is not available; and that under the circumstances, the objection raised by the respondents deserves to be decided by the Court after hearing both the partiers. 6. From a perusal of the order dated 25th January, 2006, quoted above, it is apparent that during the course of hearing on the Petition/Application under Article 227 of the Constitution of India, the learned Counsel for the Caveators/Respondents raised objections that the petitioner/applicant had an alternative remedy of filing Appeal under Order XLIII, Rule 1 (r) of the Code of Civil Procedure. 7. Sri Santosh Kumar, learned Counsel for the petitioner/applicant stated that in view of the said objection raised by the learned Counsel for the Caveators/Respondents, the petitioner/applicant be permitted to withdraw the Petition/Application under Article 227 of the Constitution of India with liberty to pursue the aforementioned alternative remedy of Appeal. 8. In view of the statement made by Sri Santosh Kumar, learned Counsel for the petitioner/applicant, the Petition/Application under Article 227 of the Constitution of India was dismissed, as withdrawn with liberty to pursue the alternative remedy of Appeal against the impugned order dated 17-01-2006. 9. The aforementioned Recall Application has now been filed by the petitioner/applicant on the ground that the Petition/Application under Article 227 of the Constitution of India was got dismissed, as withdrawn with liberty for filing Appeal, under misconception; therefore, the order dated 25th January, 2006 be recalled. 10. 9. The aforementioned Recall Application has now been filed by the petitioner/applicant on the ground that the Petition/Application under Article 227 of the Constitution of India was got dismissed, as withdrawn with liberty for filing Appeal, under misconception; therefore, the order dated 25th January, 2006 be recalled. 10. I have heard Sri Santosh Kumar, learned Counsel for the petitioner/applicant and Sri K.G. Srivastava, learned Counsel for the Caveators/Respondents, and perused the record. 11. It is submitted by Sri Santosh Kumar, learned Counsel for the petitioner/applicant that the statement, as mentioned in the order dated 25th January, 2006, was made under misconception, and therefore, it is in the interest of justice that the said order dated 25th January, 2006 be recalled, and thereafter, a fresh order on the merit of the preliminary objection raised on behalf of the Caveators-Respondents be passed. 12. In reply, Sri K.G. Srivastava, learned Counsel for the Caveators/Respondents submits that in view of the objection raised on behalf of the Caveators/Respondents during the course of hearing on 25th January, 2006, regarding availability of alternative remedy of Appeal to the petitioner/applicant, the Court made various observations, and in view of the said observations, the learned Counsel for the petitioner/applicant was satisfied regarding the validity of the objection raised on behalf of the Caveators/Respondents, and therefore, he made the statement, as mentioned in the order dated 25th January, 2006. Therefore, the submission proceeds, there is no occasion to recall the said order dated 25th January, 2006. 13. I have considered the submissions made by the learned Counsel for the parties. 14. From a perusal of the order dated 25th January, 2006, it is evident that the said order dismissing the Petition/Application under Article 227 of the Constitution of India, as withdrawn with liberty to pursue the alternative remedy of Appeal against the impugned order dated 17-01-2006, was passed on the basis of the statement made by Sri Santosh Kumar, learned Counsel for the petitioner/applicant. 15. It is further evident that Sri Santosh Kumar, learned Counsel for the petitioner/applicant made the statement in view of the objection raised by the learned Counsel for the Caveators/Respondents that the impugned order dated 17-01-2006 is appealable under Order XLIII, Rule 1 (r) of the Code of Civil Procedure. 16. 15. It is further evident that Sri Santosh Kumar, learned Counsel for the petitioner/applicant made the statement in view of the objection raised by the learned Counsel for the Caveators/Respondents that the impugned order dated 17-01-2006 is appealable under Order XLIII, Rule 1 (r) of the Code of Civil Procedure. 16. Thus, the Court did not consider the merit of the said objection raised by the learned Counsel for the Caveators/Respondents, and it passed the said order dated 25-01-2006 on the basis of the statement made by Sri Santosh Kumar, learned Counsel for the petitioner/applicant. 17. Sri Santosh Kumar, learned Counsel for the petitioner/applicant has now submitted, as is averred in the Affidavit accompanying the aforementioned Recall Application, that the said statement was made by Sri Santosh Kumar, learned Counsel for the petitioner/applicant under mis-conception. 18. Having regard to the above circumstances, I am of the opinion that it will be in the interest of justice to recall the said order dated 25-01-2006, and pass a fresh order on merit of the said objection raised by the learned Counsel for the Caveators/Respondents. 19. As regards the submission made by Sri K.G. Srivastava, learned Counsel for the Caveators/Respondents that during the course of hearing on 25-01-2006, the Court made observations in regard to the availability of alternative remedy of Appeal to the petitioner/applicant, and therefore, the said order dated 25th January, 2006 be not recalled, I am of the view that the said submission is not correct. 20. Observations are made by the Court during the course of hearing in order to reach a just and correct conclusion/decision in the case. Such observations are normally tentative in nature. 21. Once the hearing concludes and the Court gives its decision, the reasoning or basis for the decision is to be looked into in the decision itself. The observations made during the course of hearing of the case, unless incorporated in the decision as part of the reasoning or basis for the decision, cease to have relevance or significance. 22. Therefore, in the present case, what is to be considered, is the content of the order dated 25-01-2006. As noted above, the said order was passed on the statement made by Sri Santosh Kumar, learned Counsel for the petitioner/applicant. 22. Therefore, in the present case, what is to be considered, is the content of the order dated 25-01-2006. As noted above, the said order was passed on the statement made by Sri Santosh Kumar, learned Counsel for the petitioner/applicant. Therefore, the observations, if any, made during the course of hearing on 25-01-2006 are no longer relevant for deciding the question as to whether the said order dated 25-01-2006 be recalled. 23. In view of the above discussion, the aforementioned Civil Misc. Recall Application No. 29317 of 2006 is allowed. 24. The said order dated 25-01-2006 passed on the Petition/Application under Article 227 of the Constitution of India is recalled. Fresh order is now being passed separately on the Petition/Application under Article 227 of the Constitution of India in regard to the merit of the aforementioned preliminary objection raised by the learned Counsel for the Caveators/Respondents regarding availability of alternative remedy of Appeal to the petitioner/applicant. Application Allowed. ————