The Recall Jurisdiction of the Courts

What is Recall of Orders of the Court ?

But first….what is expected from the Orders of the Court –

a)      While giving due consideration to the submissions and evidences on record of the rival parties, to record a reasoned finding with respect to disputed question of fact or of law;

b)      Employing cogent reasons about the conclusion reached in the order / judgment.

c)      Passing of orders in accordance with law.

d)     Principles of natural justice are reasonably observed in the judicial proceeding.

And when the Orders suffers from any of the vices, it is challenged by way of Review, Appeal or in Revision, alleging the impugned Order, being infected with either of the grounds, i.e. –

a)      That there is Error apparent on the face of the Record;

b)      That there is Perversity in the impugned Order;

c)      That there is patent Illegality, i.e. the impugned Order is not in accordance with law;

d)     That the impugned Order was passed in breach of principles of natural justice;

e)      That the adversary has misled the Court and obtained the impugned Order by fraud.

f)       That the Court has failed to exercise the jurisdiction vested in it;

g)      That the Court has acted beyond the jurisdiction vested in it;

h)      That the Court has improperly exercised the jurisdiction.

The list is indicative.

At the same time, the impugned Order may be Re-called in certain circumstances, like where the Order was passed in breach of “Natural Justice”; where Order was obtained by misleading / perpetrating fraud upon the Court.

In the case of Vishnu Agarwal versus State of U.P. (AIR 2011 SC 1232), the Apex Court aptly reiterated the distinction between the exercise of Review Jurisdiction and Recall Jurisdiction. The Court said –

Para 9: In Asit Kumar Vs. State of West Bengal and Ors. 2009(1) SCR 469, this Court made a distinction between recall and review which is as under:-

"There is a distinction between ...... a review petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association Vs. Raghabendra Singth & Ors. [2007(11) SCC 374] cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences."

In the case of State of Punjab versus Davinder Pal Singh Bhullar – 2012 AIR SCW 207, the Apex Court, inter alia, observed –

Para 27 – If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it; or where an order was obtained by abuse of the process of the court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order, for the reason, that in such eventuality the order becomes a nullity and the provisions of section 362 CrPC would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. 1970 CrLJ 378; 1985 CrLJ 23; AIR 1987 Raj 83 (FB); AIR 1972 SC 1300; AIR 1981 SC 1156; (2009) 2 SCC 703; AIR 2011 SC 1232.

[AIR 2014 SC 2291]

Supreme Court whilst dealing with Section 362 of CrPC, 1973, has recently ruled that a Judge can recall the Order and change his mind even though the draft copy is signed and dictated in the open Court. The relevant Paras 7 and 8 are reproduced for better appreciation.

Para 7: In Sangam Lal V/s. Rent Control and Eviction Officer, Allahabad & Ors., AIR 1966 All. 221, while dealing with the rent control matter, the court came to the conclusion that until a judgment is signed and sealed after delivering in court, it is not a judgment and it can be changed or altered at any time before it is signed and sealed.

Para 8: This Court has also dealt with the issue in Surendra Singh & Ors. V/s. State of U.P., AIR 1954 SC 194 observing as under:

"Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of 'locus paenitentiae' and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full fledged judgment and become operative. It follows that the Judge who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery.

But one cannot assume that he would not have changed his mind if he is no longer in a position to do so. A Judge's responsibility is heavy and when a man's life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture; also, a question of public policy is involved. As we have indicated, it is frequently the practice to send a draft, sometimes a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for consideration and criticism. The mere signing of the draft does not necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light drawn upon him before the delivery of judgment."

Now let us look at cases where one of the Party has misled the Court and obtained Order by “fraud”.

In the case of S P Chengalverau versus Jagannath – (1994) 1 SCC 1, the Hon’ble SC had the occasion to coin the doctrine of fraud.

Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated: "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation".          (emphasis supplied)

The Court proceeded to state: "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party".

Every court has inherent powers to recall such judgment /order where Order / judgment is alleged to have been obtained by fraud – suppression of facts – misrepresentation; or where it is brought to the notice of the Court that the Court itself has committed a mistake.

The Court concluded: "The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants".

In  Indian  Bank  v.  Satyam  Fibres  (India)  (P)  Ltd  (1996)  5  SCC  550,   

a  two- judge  bench  of  the  Hon'ble  Supreme  Court,  after  making  reference  to  a  number  of  earlier  decisions  rendered  by  different  High  Courts  in  India,  stated  the  legal  position  thus:  “......  where  the  Court  is  misled  by  a  party  or  the  Court  itself  commits  a  mistake  which  prejudices  a  party,  the  Court  has  the  inherent  power  to  recall  its  order.” Paras 20, 22, 23, 27, 28, 30 to 33.

In this case while referring to the case of  Lazarus Estates and Smith v. East Elloe Rural District  Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2  WLR 888, this Court stated;

"The judiciary in India also possesses inherent power, specially under Section 151  C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business". (emphasis supplied)

The Apex Court in the case of  Raj  Bahadur  Ras  Raja  versus  Seth  Hiralal,  AIR  1962  SC 527,

said – the  inherent  powers  has  not  been  conferred  on  the  court,  it  is  a  power  inherent  in  a  court  by  virtue  of  its  duty  to  do  justice  between  the  parties  before  it.

As observed by Hon’ble Supreme Court in a case that inherent  powers  has  its roots  in  necessity  and  breadth  is  co-extensive  with  the  necessity.  N  S  Mills  versus  UOI  AIR  1976  SC  1152.

Section 151 of CPC – To recall and cancel its invalid order or order which causes injustice. Sitaram versus Kedarnath AIR 1957 All 825.

In the case of Jet Ply Wood Private Ltd & Anr Vs Madhukar Nowlakha & Ors-AIR 2006 SC 1260,

the facts of the case are – a party based on (mis)representation of the other party, withdrew the Suit before the trial court and the trial court in fact imposed the condition that no new suit could be filed on this cause of action. The party so misrepresented applied for recall of the (Withdrawl) Order of the trial Court. The trial court refused to Recall. The party approached Calcutta HC under Article 227. The Calcutta HC directed to restore the said Suit. The party who misrepresented went into Appeal before SC.

The Hon’ble Supreme Court said – As indicated hereinbefore, the only point which falls for our consideration in these appeals is whether the Trial Court was entitled in law to recall the order by which it had allowed the plaintiff to withdraw his suit.

From the order of the Learned Civil Judge (Senior Division) 9th Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances set out in the order of 24th September, 2004, the learned trial court felt that no case had been made out to recall the order which had been made at the instance of the plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the plaintiff.

The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice.

The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, as follows:

"It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them."

Based on the aforesaid principle, the Division Bench of the Calcutta High Court, in almost identical circumstances in Rameswar Sarkar's case, allowed the application for withdrawal of the suit in exercise of inherent powers under Section 151 of the Code of Civil Procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the Court would not be powerless to set aside the order permitting withdrawal of the suit.

In United India Insurance Co. Ltd. v. Rajendra Singh & Ors., (2000) 3 SCC 581 : JT 2000 (3) SC 151,

by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal.  On coming to know of fraud, the Insurance Company applied for recalling of the award.  The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award.  The High Court confirmed the order.  The Company approached this Court.

Allowing the appeal and setting aside the orders, this Court stated;

"It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.

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 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.

It is worthwhile to record the striking obsewrvation of Hon’ble SC in the case of A.V. PAPAYYA SASTRY & ORS versus Govt of A.P. & Ors – (2007) 4 SCC 221 –

Now, it is well settled principle of law that if any judgment or order is obtained by Fraud, it cannot be said to be a judgment or order in law. Before three centuries,    Chief Justice Edward Coke proclaimed; "Fraud avoids all judicial acts, ecclesiastical or temporal".

It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

2007 (14) SCC 108

Para 30: It is well settled by catena of decisions of this Court that if a case of fraud or misrepresentation of such a dimension is discovered that the very basis of the order passed by a Court of law is affected, the Court can recall its order. The power to recall an order founded upon fraud and misrepresentation is an inherent power of the Court.

Para 33: When fraud was clear on the fact of the record, the High Court erred in law in dismissing the writ petition of the appellant.

Para 34: Learned counsel appearing for the respondents was not able to controvert the factual statements made by the learned counsel appearing for the appellant at the time of hearing. The arguments made by the learned counsel appearing for the appellant are fully supported by the records filed before the High Court and also the annexures and material placed before us. We, therefore, have no hesitation in accepting the arguments advanced by the learned counsel appearing for the appellant and allowing the appeal.

The perversity of the order implies –

a)      The Court ignored the relevant provision of law; and / or

b)      The Court ignored the material facts and evidences which were on record;

c)      The Court considered and emphasized upon irrelevant facts in its Order.

In the case of Gayadin versus Hanuman Prasad – AIR 2001 SC 386, it has been observed that the expression occurring in Section 48 of the Act (U.P. Consolidation of Holdings Act, 1953) means that the findings of the subordinate authority are not supported by the evidence brought on record or the findings are against the law or the order suffers from the vice of procedural irregularity.

In the case of Parrys (Cal) Employees Union versus Parrys and Co – AIR 1966 Cal 31, 42 – it is observed as – perverse finding means which is not only against the weight of the evidence but is altogether against the evidence itself.

In the case of Narayanagowde versus Girijamma – AIR 1977 Kar 58, 60, it is observed as – an Order which is made in conscious violation of pleadings and law is a perverse Order.

The Illegality, i.e. not in accordance with law, of the order implies – The plain and well settled meaning of the relevant statutory provision was ignored by the Court in its Order.

Time and again, our Constitutional Courts have reiterated that Orders passed, whether by Administrative, judicial or quasi judicial authorities, must be reasoned.

Any perverse Order presupposes – (a) an unreasoned Order; (b) the non consideration of “submissions and evidences on record” of the party who is victim of the perverse Order and the opportunity of affording due hearing given is thus rendered meaningless and empty formality, thereby causing the breach of principles of natural justice.

http://thepracticeoflawjalan.blogspot.in/2012/04/natural-justice-absence-of-speaking.html

http://thepracticeoflawjalan.blogspot.in/2012/04/natural-justice-recording-of-reasons-by.html

http://thepracticeoflawjalan.blogspot.in/2012/04/natural-justice-recording-of-reasons.html

Regarding illegality of the Order of the Court / Tribunal, instructive observation of Justice Lord Denning deserves mention here, wherein, in the case of Pearlman versus Governor of    Harrow School, [1978] 3 WLR 736, he said – Whenever a tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because Parliament only conferred jurisdiction on the tribunal on the condition that it decides in accordance with the law.

In the case of State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436, the Apex Court observed as saying  that once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same, (2011) 3 SCC 436.

In the case of Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, (2011) 3 SCC 363, the Hon’ble Apex Court observed as saying that “Court cannot be blind to reality of situation”, Appellants knowingly and purposely damaged mangroves and vegetation of wetland of CRZ-I area. Under garb of repairing old bund, appellants constructed pukka bund using boulders and debris with huge platform violating norms of environmental law and in flagrant violation and utter disregard of Court orders.

In the case of Commissioner Of Central Excise, Delhi Versus Allied Air Conditioning Corporation (Regd.) [(2006) 7 SCC 735, the Apex Court remanded back the case to Tribunal, for its failure to consider the material submitted by the Party therein. The Court in Para 10, said –

Para 10: A bare reading of the CEGAT's order makes the position clear that it has not analysed each item individually. It has also not indicated how the ratio in PSI's case (supra) has any relevance. The same was rendered in entirely different factual scenario. A judgement should be understood in the light of facts of the case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgement divorced from the context of the question under consideration and treat it to be complete law decided by this Court. The judgement must be read as a whole and the observations from the judgement have to be considered in the light of the questions which were before this Court. CEGAT has also been not analysed the respective stand of the appellant and the respondent on the issue of limitation elaborately. Various documents were pressed into service by the parties in support of their respective stand. The relevance of these documents has not been examined in detail by CEGAT.

In the case of Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2010) 14 SCC 792, the Hon’ble Apex Court, in  a Ex-parte Judgment, however, held that Recall of judgment is not warranted where the party not appearing in a “specially directed matter'' for which adequate notice was given.

In Raghubir Saran versus State of Bihar– “The Courts exist not only for securing obedience to law of the land but also for securing ends of justice in its widest sense. All Courts, including the HC can exercise such powers as the law of the land confers upon them as well as such inherent powers to do justice as are preserved expressly or are not taken away by a Statute. It is necessary to remember that courts are established to do justice.

Every practice of court must find its ultimate justification in the interest of justice. Every Court possesses the power to do justice. Absence of conferment of powers on subordinate courts does not change this basic and fundamental principle which is inbuilt in every civilized system of law. The primary duty of the court is to see that truth is arrived at.

In The State of Uttar Pradesh Vs. Mohammad Nooh [1958 SCR 595] Vivian Bose, J. said that justice should be done in a common sense point of view stating: "I see no reason why any narrow or ultra technical restrictions should be placed on them. Justice should, in my opinion be administered in our courts in a common sense liberal way and be  broad based on human values rather than  on narrow and restricted considerations hedged round with hair-splitting technicalities...."

2008 (14) SCC 171

Para 25: The learned counsel for the Revenue contended that the normal principle of law is that once a judgment is pronounced or order is made, a Court, Tribunal or Adjudicating Authority becomes functus officio [ceases to have control over the matter]. Such judgment or order is 'final' and cannot be altered, changed, varied or modified. It was also submitted that Income Tax Tribunal is a Tribunal constituted under the Act. It is not a 'Court' having plenary powers, but a statutory Tribunal functioning under the Act of 1961. It, therefore, cannot act outside or de hors the Act nor can exercise powers not expressly and specifically conferred by law. It is well-settled that the power of review is not an inherent power. Right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by law. If there is no power of review, the order cannot be reviewed.

Para 26: Our attention, in this connection, was invited by the learned counsel to a leading decision of this Court in Patel Narshi Thakershi & Ors. V/s. Pradyumansinghji Arjunsinghji, 1971 3 SCC 844. Dealing with the provisions of the Saurashtra Land Reforms Act, 1951 and referring to Or. 47, R. 1 of the Code of Civil Procedure, 1908, this Court held that there is no inherent power of review with the adjudicating authority if it is not conferred by law.

Para 27: The Court stated;

"It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order". (emphasis supplied)

45 Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and to disturb the finality.

46 In S. Nagaraj & Ors. V/s. State of Karnataka, 1993 Supp4 SCC, Sahai, J. stated;

"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 Court 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 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".

2008 (14) SCC 171

Para 39: As stated earlier, the decision was rendered in appeal by the Income Tax Appellate Tribunal, Rajkot. Miscellaneous Application came to be filed by the assessee under sub- sec. (2) of Sec. 254 of the Act stating therein that a decision of the 'Jurisdictional Court', i.e. the High Court of Gujarat in Hiralal Bhagwati was not brought to the notice of the Tribunal and thus there was a "mistake apparent from record" which required rectification.

Para 40: The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified u/s. 254(2).

[(1985) 2 SCC 670]

Para 13: The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the Judgement of the subordinate court was argued before that court or not?

Some other relevant rulings –

1.      Passing of speaking order, discussion of relevant case law, analysis of defence pleas, and recording of findings is an essential requirement of natural justice. Govan Soma Tandel versus C C (Prev) – (2000) 115 ELT 772.

2.      An extension of principles of natural justice requires a reasoned decision – R B Desai versus UOI – (1987) 3 Comp LJ 111 (Del).

3.      Speaking orders – Necessity of – Order of HC setting aside Interlocutory Order without assigning any reason – Not proper – AIR 2011 SC 1353.

4.      Orders passed must be reasoned – AIR 2011 SC 1883 – Para 27.

5.      Where the Decree is passed by a court lacking inherent (subject matter) jurisdiction – it can be challenged at any stage – (2011) 11 SCC 198 – Paras 20, 24 and even Application under Article 227 can be maintained before the High Court concerned;

6.      Where the Court while passing the Order / judgment, has misinterpreted the provision of law and thus acted beyond the scope of their powers conferred upon them under the Statute, then, their such Orders / judgments may be deemed as Ultra Vires and can be challenged under Writ Jurisdiction. Acting beyond Statutory powers / exceeding Statutory powers – (2010) 14 SCC 1.

7.      Article 227 – decree obtained by fraud – misrepresentation – can be invoked – Kedariseth Atmaram versus Seetharamaraju – CRA – 5044 / 2009 – Judgment dated – 31-08-2010 – AIR 2011 (NOC)

8.      High court can set aside Order of the tribunal which is obtained by fraud, in the exercise of power as a Court of Record under Article 215 of the Constitution of India – AIR 2006 SC 3028 : (2006) 7 SCC 416.

9.      Where the Order / judgment was passed considering Irrelevant & extraneous material, such order / judgment can be challenged under Writ Jurisdiction. – 2011 (3) ABR (NOC) 261 Bom –Paras 6, 7, 56, 57 – M/s Formac Engineering versus MCGM;

10.  Writ Jurisdiction under Article 226 was invoked in a case where the Appellate Auth did not considered several material pieces of evidence while passing impugned order – Appellate auth failed in its duty in deciding the Appeal in accordance with law – a fit case for remanding the matter to the Appellate auth for deciding the Appeal afresh on merit – in accordance with law – Khatri Film Ent versus Vijay Cycle – 2010 (2) All MR 722 – Para 3.

11.  Article 226 – any misadventure of Subordinate court – resulting in grave injustice – warrants exercise of writ jurisdiction – Balaji Properties & Developers versus The Church of St. Matias – 2010 (3) All MR 62

12.  Article 226, 227 – Interlocutory orders – wrong notions of law canvassed before lower court – Writ court may interfere – Kanhaiyalal K Kewalramani versus Anil K Gurbakshani – 2010 All MR (Cri) 797

13.  Article 226, 227 – Suit filed for temporary Injunction – Appeal court granted Injunction – failure of Appellate court to consider relevant material and appreciation of findings of trial court – omissions can be corrected at under Article 226, 227 – General Manager versus Mehmooda Shikshan and Mahila Gramin – 2010 All MR (Supp) 676 – Para 10; Relied on (2008) 9 SCC 1; (2001) 8 SCC 97; (2002) 1 SCC 319; (1998) 3 SCC 341; (2006) 5 SCC 282

14.  Article 226 – Challenge to order of Civil Court – Material irregularity – Set aside – Francisco Rodrigues versus Angelica Rebello – 2010 (5) All MR 516.

Application under this Jurisdiction may be taken out in any Court, Civil, Criminal or Revenue Courts, or in a Statutory Tribunal. This “Recall jurisdiction” may profitably be invoked in Orders passed by Statutory tribunals who does not have powers of “Review”.

The Application may be taken in the form of a Notice of Motion / Misc. Application, duly verified by the Applicant.

A broad approach to drafting of any case may be undertaken in three chronological “Heads” –

a         Reliefs prayed for / claimed;

b        Grounds for Reliefs prayed for / claimed; (both factual and legal);

c         Narration of facts substantiating the said grounds.

d        Further, there may be narration of such facts in the   beginning of the draft, which would lay foundation for “material facts of the case”.

Grounds for Reliefs prayed for / claimed implies (a) the essence / conclusion of material facts; and (b) other legal provisions which supports the reliefs prayed for / claimed.

The Prayers in this Application may be –

a.       To Recall the Order passed on dated ______

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