Hon'ble Mrs. Rekha Dikshit,J.
(C.M. Application No.74152 of 2018) Heard Mohd. Ali, learned counsel for the applicant and Shri Shatrughan Chaudhary, learned Additional Chief Standing Counsel for the State.
Facts in brief of the present case are that initially the applicant/petitioner/Ramesh Bhai approached this Court by filing Writ Petition No.1031 (S/S) (Now S/B) of 1995 challenging the order dated 25.05.1992 passed by the State Public Services Tribunal in Claim Petition No.148(T)/II/1985 (Old Petition No.593(F)/III/80); Ramesh Bhai v. D.M./Adhyaksh, Zila Parishad, Badaun and Others.
During pendency of the present writ petition, an application (C.M. Application No.27200 of 2007) dated 23.08.2007 supported with an affidavit has been moved by him for withdrawal of the writ petition on the following facts:-
"3. That the Authorities have assured to deponent to solve all the grievances of the deponent raised in the above noted writ petition and the deponent is satisfied with the assurance given by the Authorities. The Authorities have asked the deponent to withdraw the above notice writ petition as such the deponent -2- wants to withdraw his writ petition."
Allowed by an order dated 10.09.2007, reads as under:
"The application is allowed.
The writ petition is dismissed as withdrawn"
Present application (C.M. Application No.74152 of 2018) dated 16.07.2018 has been moved for recall of the said order.
Mohd. Ali, learned counsel for the applicant submits that the writ petition filed by the applicant/petitioner, has been withdrawn on the assurance of the respondents to redress his all grievances, however, the respondents taking advantage of the inability of the applicant and on account of his ailment, did not take any steps in regard to the assurance, given at the time of withdrawal of the writ petition.
In the month of April, 2018, the concerned authority specifically refused to do anything in respect of his grievance which was earlier assured, on the basis of which the writ petition was dismissed as withdrawn. So the present application be allowed and the order dated 10.09.2007 be recalled.
In support of his argument, placed reliance upon a judgement given by Hon'ble Apex Court in the case of United India Insurance Company Limited v. Rajendra Singh and Others; (2000) 3 SCC 581. Relevant portion of the judgement is quoted hereinbelow:
"Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such -3- a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."
And in the case of Ravindra Kumar Gupta v. State of U.P. and Others; 2017 (35) LCD 1653, relevant portion is quoted hereinbelow:
"5. In Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma 1979 (4) SCC 389 the Court said:
"... there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate powers which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."
Shri Shatrughan Chaudhary, learned Additional Chief Standing -4- Counsel for the State while opposing the said application submits that once the writ petition has been dismissed as withdrawn on the basis of an affidavit moved by the petitioner, the same cannot be recalled and placed reliance on a judgement given in the case of Abhishek Singh Kushwaha & Another v. State of U.P. & Others; 2007 (1) ALJ 703.
As per admitted facts the writ petition filed by the petitioner has been dismissed as withdrawn on an application moved by him for withdrawal of the writ petition supported with an affidavit in view of the averments made in paragraph 3 of the affidavit by an order dated 10.09.2007.
The first point is to be considered in the present case is that if a writ petition has been dismissed on merit, an application for recall of the said order is maintainable or not.
The word "recall" has been considered by a Division Bench of this Court in the case of Ghanshyam Raj Narain Dubey v. Union of India & Others; 1998 (16) LCD 36 and this Court has defined as under:
"Prayer for Recall of a order can be made if the applicant shows that there was a mistake of the Court while passing its order. While making a prayer for restoration the applicant must show the sufficiency of cause of his default and the Court may exercise its discretion in accepting that cause."
Thus, the recall application is only maintainable, if there is a mistake of the Court while passing its order in view of the doctrine 'Actus Curie Neminem Gravabit' (Acts of Court prejudices none), which means that no party can be suffered on the mistake of the Court, the said position does not exists in the -5- present case.
In the case of Abhishek Singh Kushwaha & Another v. State of U.P. & Others; 2007 (1) ALJ 703 this Court held that after the Court has passed a final order disposing of the matter before it, the Court is not supposed to recall the order unless some mathematical or clerical error has crept into it, or there is incongruity, so outrageous which scuttles justice. If any party feels aggrieved, it can go in appeal but asking the Court to reconsider the matter on various other grounds, is not the right course and tends to undermine the dignity of the Court, because, the Court has already passed the final order. The Court should, therefore, normally decline to accept such recall applications. So the present application is liable to be rejected.
Further if a writ petition has been dismissed as withdrawn without any liberty to file afresh then an application for recall of the said order is not maintainable.
A Division Bench although considering the matter in regard to the review in the case of Rakesh Chandra Shukla v. Union of India and Others; 2013 (31) LCD 1014 held that if writ petition has been dismissed as withdrawn on an application moved by the petitioner himself and no liberty has been given to the petitioner to file fresh writ petition then in that circumstance no review application is maintainable for recall of the said order as there is no sufficient ground for recall of the same.
So far as the judgement cited by learned counsel for the applicant passed by Hon'ble Apex Court in the case of United India Insurance Company Limited (supra) is concerned, the -6- same is not applicable in the present case as in the said matter, an application for recall has been moved for recall of an order which has been obtained by a fraud, so the Hon'ble Apex Court taking the situation has held that no court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim, however, the said decision has not been stayed, so the applicant cannot derive any benefit from the said judgement.
The judgement given in the case of Ravindra Kumar Gupta (supra) is also not applicable because in the said matter, the Court while taking into consideration the power of review available to the Court under Article 226 of the Constitution of India has held that in order to prevent miscarriage of justice or to correct grave and palpable errors committed by it, the order of review is maintainable.
In the instant matter, at the time of passing of order dated 10.09.2007 by which the writ petition has been dismissed as withdrawn. No liberty has been given to the petitioner to file fresh writ petition, so in view of the said facts as well as the facts stated hereinabove, the recall application is not maintainable.
For the foregoing reasons, there is no sufficient ground for recall of order dated 10.09.2007.
Accordingly, the application in question is rejected.
Order Date :- 11.9.2018 Anupam S/-
(Rekha Dikshit,J.) (Anil Kumar,J.) Court No. - 7 Case :- SERVICE BENCH No. - 1031 of 1995 Petitioner :- Ramesh Bhai Respondent :- The State Of U.P.& Others Counsel for Petitioner :- P.L.Misra,Brijendra Kumar,Gopal Krishna,Mohd. Ali,Piyush Mishra,Ramakant Jaiswal Counsel for Respondent :- C.S.C.
Hon'ble Anil Kumar,J.
Hon'ble Mrs. Rekha Dikshit,J.
(C.M. Application No.74151 of 2018) Heard learned counsel for the applicant and perused the record.
In view of the facts stated in the accompanying affidavit filed in support of the application for condonation of delay, application is allowed and the delay is condoned.
Order Date :- 11.9.2018 Anupam S/-
(Rekha Dikshit,J.) (Anil Kumar,J.)