The present Miscellaneous Civil Application has been filed under Section 114 read with Order 47 Rule 1 of the Civil Procedure Code for review / recall of the impugned judgment and order passed in First Appeal No. 6726 of 1998 dated 22.2.2012 by this Court, on the grounds stated in the Application.
Heard learned Advocate Mr. H.D.Vasavada appearing with learned Advocate Mr. R.K.Parmar for the Applicant / Original Plaintiff as well as learned Advocate Mr. Nandish Chudgar for the Opponents.
Learned Advocate Mr. Vasavada for the Applicant has referred to the order passed by this Court in the aforesaid First Appeal No.6726 of 1998 dated 22.2.2012, by which the said First Appeal was dismissed, and submitted that the examination of Mr. Kohli was sine qua non for rendering a complete justice between the parties. He tried to emphasize that he was an Engineer of the Respondent Company at the relevant time and he could have stated before the court, if he was permitted to be examined as a witness. He has therefore prayed that the order passed in the main matter, i.e. First Appeal No.6726 of 1998 may be remanded for evidence / examination of Mr. Kohli. Learned Advocate Mr. Vasavada submitted that Section 114 read with Order 47 Rule 1 of CPC would not be attracted, but in the interest of justice he has made this application, which the court may consider by recalling the order.
Learned Advocate Mr. Nandish Chudgar appearing for the Opponent submitted that the present Application is misconceived as it is not maintainable once the main matter is finally heard and disposed of by the aforesaid judgment of this court on appreciation of material and evidence of the trial court. He therefore submitted that if Section 114 read with Order 47 Rule 1 is not applicable then this application would not be maintainable. He submitted that infact it is an application for review, for which, no ground is made out, and therefore, the present Application may not be entertained.
In view of this rival submissions, it is required to be considered whether the present Miscellaneous Civil Application can be entertained or not.
Though it is stated to be an application under Order 47 Rule 1 of CPC, learned Advocate Mr. Vasavada for the Applicant has fairly stated that strictly it would not be attracted. Therefore, if Section 114 read with Order 47 Rule 1 of CPC is not attracted, which is regarding review, then one fails to understand how the order could be recalled, once this court has finally disposed of the First Appeal with judgment and order.
It is required to be mentioned that Section 114 read with Order 47 Rule 1 of CPC provide for a review on limited grounds and that too for very limited purpose. Admittedly, no such ground exists, and as rightly submitted by learned Advocate Mr. Vasavada, it is not even attracted. Therefore, when no such ground is made out, there is no need for review, and if, in the name of recalling the order, a review is made, it would be contrary to the statutory provisions of law, which prohibits the court from again examining the matter on merits, once the judgment and order is passed. Moreover, even the order is not normally recalled and it is not open for any party to approach the court to review or recall or reconsider the order except on the ground of fraud. Therefore, even the order cannot be recalled except on the ground of fraud.
It is in this background, if it is not permissible, there is no reason to entertain such an application.
The another submission made by learned Advocate Mr. Vasavada that to examine a particular employee - Mr. Kohli is sine qua non to do the complete justice between the parties, is misconceived, as at the time of the trial of the suit, necessary steps could have been taken and it could have been insisted. Having missed the bus at the relevant time and even at the time of hearing of the First Appeal before this court also, now it is too late to entertain any such ground for recalling the order, which is not permissible.
In the circumstances, the present Miscellaneous Civil Application cannot be entertained and deserves to be rejected and accordingly stands rejected.
(Rajesh H.
Shukla,J) Jayanti* Top