Rameshwar Sahai Singh v. Additional District Judge E.C.Act Lko

Heard learned counsel for the petitioner and learned counsel for the State. The instant writ petition has been filed assailing the order passed by the appellate court arising out of proceeding initiated by the opposite party before the civil court for declaration of sale deed as void, as well as for permanent injunction. The writ petition was heard and finally allowed on 30th April,

#2008. After the aforesaid judgment and order passed by this Court in the instant writ petition, recall application dated 1st May, 2008 was filed on behalf of opposite party nos.3 to 6. Learned counsel for the petitioners submits that since the judgment and order dated 30th April, 2008 had attained finality and thus, no miscellaneous application is maintainable for recall of the judgment and order. In support of his contention, he has placed reliance on the judgment of Hon'ble Apex Court in case of Ram Chandra Singh Vs. Savitri Devi reported in 2004 (117) ECR 1 (SC) and referred paragraphs 11, 13, 15 and 20 of the said judgment, which are extracted as follows:- "11. It is now well-settled that an application for clarification or modification touching the merit of the matter would not be maintainable. A court can rehear the matter upon review of its judgment but therefore the procedure laid down in Order XI, Rules 3 and 5 of the Supreme Court Rules, 1966 as also Article 137 of the Constitution of India are required to be complied with as review of a judgment is governed by the constitutional as well as statutory provisions.

#13. In Gurdip Singh Uban (supra) the law has been laid down in the following terms: "17. ...This procedure is meant to save the time of Court and to preclude frivolous review petitions being filed and heard in open Court. However, with a view to avoid this procedure of 'no learning', we find that sometimes applications are filed for 'clarification', 'modification' or 'recall' etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straightway inasmuch as the attempt is obviously to by-pass Order XL, Rule 3 relating to circulation of the application in Chambers for consideration without oral hearing. By describing an application as one for 'clarification' or 'modification', - though it is really one of review - a party cannot be permitted to circumvent or by-pass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly."

#15. Recently in Zahira Habibullah Sheikh and Anr. Vs. State of Gujarat and others [(2004) 5 SCC 353], referring to Order XI, Rule 3, this Court opined: "6. As noted by a Constitution Bench of this Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India [1980(4) SCC 680], Suthendraraja v. State, [1999 (9) SCC 323] Ramdeo Chauhan v. State of Assam [2001 (5) SCC 714] and Devender Pal Singh v. State, NCT of Delhi [2003 (2) SCC 501] notwithstanding the wider set of grounds for review in civil proceedings, it is limited to "errors apparent on the face of the record" in criminal proceedings. Such applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well.

#7. In Delhi Admn. v. Gurdip Singh Uban, [2000 (7) SCC 296] it was held that by describing an application as one for "clarification" or "modification" though it is really one of review, a party cannot be permitted to circumvent or by pass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. The court should not permit hearing of such an application for "clarification", "modification" or "recall" if the application is in substance a clever move for review." Learned counsel for the petitioner has further placed reliance on the judgment of Hon'ble Apex Court in case of In re:-Rashid Khan Pathan and others decided on 03.09.2020 in Misc. Application Diary No.15272 of 2020 in Suo Moto Contempt Petition (Criminal) No.02 of 2019 and has drawn attention towards paragraph Nos. 8 and 9, which are extracted as follows:- "8. This Court in Delhi Admn. v. Gurdip Singh Uban MANU/SC/0515/2000 : (2000) 7 SCC 296; AIR 2000 SC 3737 deprecated the practice of filing of applications for "clarification", "modification" or "recall" of final judgments or orders. It was held in the said judgment that a party cannot be permitted to circumvent or bypass the circulation procedure provided in the provision pertaining to Review and indirectly obtain a hearing in the open Court by filing an application for modification or recall. Such an application deserves to be dismissed with lodging the application for recall, the Registrar costs. While (Administration) relied upon another judgment of this Court in A. P. S. R. T. C. v. Abdul Karim6 in which it was held that applications for clarification, which are in essence and substance seeking the review of an order of the Court, are impermissible and amounted to an undesirable practice which do not deserve any consideration by the Court.

#9. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far-reaching adverse impact on the administration of justice." I have gone through the record as well as contention of the learned counsel for the petitioners. It is evident that, in fact, recall application has been filed by the respondent nos.3 to 6 for recall of the order dated 30th April, 2008. Since, it has been settled that no misc. application is permissible for recall of a judgment and order, which had attained finality earlier and, admittedly, the instant application for recall has been filed after the judgment and order passed by this Court on 30th April,

#2008. Further the aforesaid ratio indicates and establishes that since if the misc. application is being allowed for recall of any judgment and order, which had attained finality, this would otherwise open pandora box and as such, no judgment would attain finality. Considering the aforesaid facts and circumstances, the recall application dated 1st May, 2008 moved by the opposite party nos.3 to 6 is hereby dismissed in view of the ratio of the judgment and order of the Hon'ble Apex Court. The writ petition is consigned to record. Order Date :- 18.4.2022 Ashutosh SINGH Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench