Satya Dev Singh & Ors. v. State of Uttarakhand & Ors.

dismissed the writ petition no. 586 of 2005 (S/S) as withdrawn. A copy of order dated 28.09.2012 is enclosed as Annexure No. 1 to this affidavit.

4. That after withdrawal of the writ petition, the petitioners obtained a certified copy of order and thereafter submitted the same before the respondent no. 1 on 05.10.2012 and requested to do the needful as per assurance given to them.

5. That a period of more than 2 months has expired but the respondent no. 1 has not taken any in respect of settling the claim of the petitioners.

6. That it appears, that the respondent no. 1 would do nothing in the case of the petitioners.(cid:148) 2 Thus it is clear that the respondents authorities in spite of the assurance said to have been given, the petitioner reconsideration the matter of appointment of the petitioners, did not take any action. In sum and substance there has been an inaction on the part of the respondents authorities to honour the assurance given to the petitioners. It is appropriate to see on what ground the withdrawal application was filed to withdraw the writ petition. In paragraph 3 of the supporting accompanying affidavit, it is stated as follows:- (cid:147)That the petitioners do not want to press the present writ petition because they have been assured by the Government to re-consider their claim for providing employment to them after framing a scheme in the light of the agreement already reached between the district administration and petitioners few years back.(cid:148) The Court was persuaded that the Government had assured the petitioners to reconsider their claim for providing employment to them and as such, there was no leave to file afresh writ petition on the said selfsame cause of action. It was clear understanding of the petitioner, not only at the time of withdrawal of the application, even at the time of filing of the present application that assurance the Government has mitigated the petitioners(cid:146) 2 3 grievance. Therefore, it was thought that no litigation should be kept pending. According to me, there is no statement and averment in the present application that assurance given by the Government is false and misleading, rather Government has not taken any action in terms of the assurance. I think that this is a subsequent cause of action and it has no co-relation to the earlier cause of action filing the writ petition. I have examined the original writ petition which was allowed to be withdrawn. It appears that in the writ petition in sum and substance that pursuant to the judicial pronouncement, the petitioners made application for appointment on the ground of land being acquired. But the said application of the petitioners was rejected by an order dated 07.02.2005. It seems to me although Mr. C.D. Bahuguna, Senior Advocate says otherwise that after writ petition was filed there has been an assurance that in terms of the agreement already reached with the land looser and the Government in the year 1989 the case of the petitioner would be reconsidered. Mr. C.D. Bahuguna has cited a Division Bench judgment of the Calcutta High Court in the case of Rameswar Sarkar Vs State of West Bengal reported in AIR 1986 Calcutta 19 and submits that Court has inherent power under Section 151 of the Code of Civil Procedure to recall the order of this nature. I have seen this judgment of the Calcutta High Court and I am of the view that there is a dispute to the preposition laid down in the said judgment. Inherent powers of the Court is unlimited and in order to prevent the miscarriage of justice being done or rather to do the complete justice to take action in the interest of justice by the Court only 3 4 mechanism is Section 151 of the Code of Civil Procedure. I respectfully followed this principle. The judgment cited by Mr. C.D. Bahuguna is of the Hon(cid:146)ble Supreme Court in the case of Jet Ply Wood Private Ltd. & another Vs Madhukar Nowlakha & others reported in AIR 2006 (SC) 1260. The above Division Bench has been noted by the Hon(cid:146)ble Supreme Court with approval and has reiterated fit by Civil Court under Section 151 of the Code. These two judgments in my view is not applicable as per the fact of the case in hand is concerned. So far the principle of law laid down therein would certainly be applicable in this case. In Calcatta case, the plaintiff/revisionist filed a money suit against the defendant and when the suit came up for hearing the learned Judge, trying the suit, firmed opinion that disputes as stated in the suit can very well be decided by the Arbitration. Having understood the observation of the learned trial judge, the plaintiff was advised, made an application for withdrawal of the suit without seeking leave to file fresh one in respect of the same cause of action. The learned trial judge allowed that suit be withdrawn without any leave. Thereafter, the plaintiff having released the legal blunder made an application of recalling of that of the order along with withdraw the suit. The learned judge summarily dismissed application and against this order of dismissal, revision application was filed. The Division Bench while allowing the revision application observed that by virtue of Section 4 5 151 of the Code, the order allowing to withdraw the suit should have been recalled to prevent the miscarriage of justice as by mistake the suit was withdrawn without asking for leave to file fresh. By this order the entire claim of the plaintiff was destroyed. The Division Bench found this would be serious injustice to the plaintiff as there is no expressed provision in the Code or under any law to get the remedy. Therefore, their Lordships(cid:146) extracted inherent powers and allowed the revision application. In the Hon(cid:146)ble Supreme Court judgment, it is noticed owning the plaintiff made an application for withdrawal of the suit on the ground that the talks of settlement between the parties was going on and on the basis of that said statement should be allowed to withdraw. Since thereafter it was found that talks of settlement failed and by that time suit was withdrawn without any leave being granted to file fresh suit, therefore, the learned Single Judge recalled the order of withdrawal and restored the suit on record by exercising of inherent power under Section 151 of the Code. The Hon(cid:146)ble Supreme Court in the above reported judgment has affirmed the course of action taken by the learned trial judge. If the ratio of the aforesaid two judgments are churned out it would appear that when on fact it appears that serious injustice which tantamount to irretrievable injury is caused by any order of the Court. Obviously, the Court will not hesitate to prevent the miscarriage of justice and to render the justice being done and at the same time justice is rendered. 5 6 It is well settled that principle of law with actus legis nemini facit injurium meaning thereby act and action of the Court does not injure any person. Precondition is this whether on a given facts and circumstances, injustice is being done or not. In the case in hand I find the Government has assured and as such the petitioner withdraw the writ petition and it is also the case that the despite assurance, no action has been taken. According to me the order of withdrawal has not read with the petitioner remediless. If the assurance is given by the Government during the pendency of the suit to reconsider the claim of the petitioners, as it is repeated and reiterated by the petitioners onwards then such assurance can very well be enforced by taking lawful measure and according to me this is the right (going by the statement and averments made by the petitioner in the application for recall). It is said to have been created by the Government and such right can obviously be enforced in accordance with law. In view of the discussion on fact, I do not think that aforesaid two judgments would helpful to recall the earlier order. Therefore, the recall application dismissed.

28.12.2012 ASWAL (K.J. Sengupta, J.) 6