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2010 DIGILAW 479 (JK)

Harbans Lal Bhagat v. State

2010-08-27

Mansoor Ahmad Mir

body2010
1. Applicant-writ petitioner has filed this petition in terms of section 151 of Civil Procedure Code (for short C.P.C) for recalling of the judgment-order dated 31st of July’ 2009 passed by this Court in the writ petition titled above, on the grounds taken in the motion. 2. Respondents no. 1 & 2 and private respondents have filed their objections. Respondents no. 3 & 4 have not chosen to file objections. 3. Learned counsel for the parties addressed arguments on 10th of August’ 2010 and the file came to be reserved for orders. 4. It is stated in the application that the Court without concluding the hearing finally, passed the judgment and order dated 31st of July’ 2009, which has adversely affected the writ petitioner. Learned counsel for the petitioner had not concluded the arguments on 27th of July’ 2009 & 28th of July’ 2009 and accordingly the file was posted for 29th of July’ 2009. On 29th of July’ 2009 and 30th of July’ 2009, learned counsel for the petitioner was not in a position to cause appearance in the court for the reasons mentioned in the application and accordingly the file came to be posted for 31st of July’ 2009. It is averred that on the said date i.e., 31st of July’ 2009, the Bar at Jammu had given a call for general strike and had suspended the work, due to which learned counsel for the petitioner could not appear in the Court and the case came to be finally decided. The judgment came to be passed virtually in ex-parte and without concluding the hearing i.e., without concluding the arguments of the learned counsel for the petitioner. Thus, the order has adversely affected the petitioner. 5. Feeling aggrieved, the petitioner questioned the said judgment-order by way of L.P.A No. 168/2009. The L.P.A Bench accorded permission to the learned counsel for the writ petitioner-applicant to withdraw the appeal and approach the Single Bench seeking recall of the order. It is apt to quote order dated 31st of August’ 2009 passed by the L.P.A Bench:- "Permission is accorded to the learned counsel for the appellant to withdraw the appeal and to approach the learned Single Judge who passed the order impugned in this appeal seeking recall of the order." 6. It is apt to quote order dated 31st of August’ 2009 passed by the L.P.A Bench:- "Permission is accorded to the learned counsel for the appellant to withdraw the appeal and to approach the learned Single Judge who passed the order impugned in this appeal seeking recall of the order." 6. Respondents have not challenged the order dated 31st of August’ 2009 passed by the learned Division Bench, thus said order has attained finality. 7. In terms of the order passed by the Division Bench, the application in hand came to be filed and came up before this Court due to elevation of learned Judge as Chief Justice. 8. Respondents no. 1 & 2 and the private respondents have stated in their objections that Mr. Sudershan Sharma, Advocate had caused appearance on behalf of the writ petitioner-applicant on the said date and the learned counsel and was heard at length as such, have prayed that the application be rejected. 9. The entire controversy revolves around one point, i.e., whether the learned counsel for the petitioner addressed the arguments finally and whether the hearing was concluded? 10. Perusal of the record reveals that Mr. Jan had addressed the arguments on 27th of July’ 2009, 28th of July’ 2009, but had failed to appear on 29th of July’ 2009 and 30th of July’ 2009, accordingly the file was posted for the 31st of July’ 2009 and on the said date the judgment came to be passed. It is no where mentioned in the judgment-order dated 31st of July’ 2009 that Mr. Sudershan Sharma, Advocate had addressed the arguments on the said date, which is suggestive of the fact that no arguments were heard on the said date. A perusal of the record also no where indicates that the learned counsel for respondents had addressed the arguments. Even the order dated 31st of July’ 2009 is silent to that extent. 11. It is averred in the application that on 31st of July’ 2009, the Bar at Jammu had given a general call for strike and due to said strike the work was suspended. Respondents have not denied this fact and have admitted that the work was suspended on the said date, but it is averred that Mr. Sudershan Sharma, Advocate appeared on behalf of petitioner on the said date. Respondents have not denied this fact and have admitted that the work was suspended on the said date, but it is averred that Mr. Sudershan Sharma, Advocate appeared on behalf of petitioner on the said date. It is apt to reproduce relevant portion of the objections filed by the private respondents, herein. "b/ & c/: That in reply to grounds -b and c it is submitted that despite suspension of work by the Bar, the counsel for both the parties were present were present at the time of passing of the judgment by the Hon’ble Court, as such, it cannot be said to be an exparte judgment. It is stated here with vehemence that an order/judgment can be termed to be an exparte order/judgment only in the eventuality when either of the party is neither present nor is given an opportunity of being beard. The judgment itself reflects appearance of counsels for both the petitioner as well as the respondents at the time of passing the judgment. Thus it cannot be said to be an exparte judgment." 12. Respondents have not mentioned in the objections that the arguments were addressed by Mr. Sudershan Sharma, Advocate on behalf of the petitioner or arguments were addressed by the learned counsel for respondents. 13. Apex Court in a case titled Lajwanti v. Union of India and others, reported in (2000) 10 Supreme Court Cases-345, has held that the Court has inherent powers to recall own orders under Section 151 of C.P.C and pass such orders in order to meet ends of justice. 14. Procedural wrangles and tangles have no role to play and mystic may bees cannot be the barriers. Apex Court in case titled S. Nagaraj & Ors v. State of Karnataka & Another, reported in 1993 Supp. (4) Supreme Court Cases 595, observed that justice is a virtue which transcends all barriers. Neither rules of procedure nor technicalities of law can stand in its way. It is apt to reproduce para no.18 of the said judgment herein:- "18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative law as in Public Law. Even the law bends before justice. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Courts finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on it if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State’s failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue." 15. It is the beaten law of the land that in order to do justice, the Court can pass any order in the interest of justice or to prevent abuse of process of Court or to correct miscarriage of justice. It is apt to reproduce para 19 of the judgment (supra) herein:- "19 Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. It is apt to reproduce para 19 of the judgment (supra) herein:- "19 Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the court culled out such power to avoid abuse of process or miscarriage of justice." 16. Rectification can be made to remove the error that flows from the fundamental principle that justice is above all. Apex Court in a case titled Common Cause, a Registered Society v. Union of India and Others, reported in (1999) 6 Supreme Court Cases 667 has held that the Supreme Court and the High Courts are having plenary powers to correct its own mistakes and the powers are not fettered by illegal constraints. It is apt to reproduce the relevant portion of para 179 of the said judgment, herein:- "179. We may also point out that the powers of this Court under Article 32 and that of the High Court under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistake as pointed out by this Court in S. Nagaraj v. State of Karnataka in which it was observed . . . . . . . ." 17. It appears that the petitioner invoked the jurisdiction of this Court in the year 2007 by filing writ petition in order to seek justice but without concluding the hearing, his case came to be finally decided vide judgment-order dated 31st of July’ 2009. It has caused prejudice to the petitioner and also caused mis-carriage of justice. Justice should not only be done, but it should appear to have been done. The scale of justice would meet by allowing the petition. 18. It has caused prejudice to the petitioner and also caused mis-carriage of justice. Justice should not only be done, but it should appear to have been done. The scale of justice would meet by allowing the petition. 18. For the sake of the repetition, there is nothing on the file suggesting the fact that respondents also addressed the arguments on the said date or even they have not made mention of this fact in their objections. 19. In the given circumstances, I am of the considered view that it is a fit case where the Court should exercise powers under Section 151 of C.P.C in order to do justice and to recall the order, but subject to costs. 20. Having glance of the above discussion, this petition is allowed and the judgment-order dated 31st of July’ 2009 is recalled, subject to payment of costs of Rs. 20,000/-. Costs be deposited within two weeks. 21. CMP, accordingly, disposed of. 22. List the main petition immediately after two weeks.