There is a civil suit in which an amendment application has been filed and the Civil Judge has granted the amendment and subsquently the plaint has been amended. After this the defendant has filed an application for recall citing that one of the defendants has not been heard; in the meantime the case has been transferred to Fast Track Court of another Civil Judge (same senior division), and now this court has recalled the amndement order, fixing another date for hearing. Query:- Can a court recall its order? What can be done by the plaintfill, some lawyers are suggesting to move to High Court against the recall and some are suggesting to file the revision application in the same court, what can be the best action?
Yes the court has power to.recall it's order . See in my view best option at this stage would be let the court here other respondent on amendment application and then pass an order. The amendment will be allowed in most of cases of if not then plaintiff can move to high court.
1. The order passed on merit can not be recalled by the court on its own motion.
2. So the order of amendment which was later complied with by amending the plaint can not be recalled by the same court anymore.
3. So the order suffers from material irregularity and illegality as well which can be set in course by filing a revisional application in the High Court under Article 227 of the Constitution of India
where an order has been passed by a mistake of the court, the court may be justified in rectifying such mistake, either by recalling the said order, or by passing any other appropriate order
2) 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.
3) file appeal against order before HC
The recall of its order by the same court may not be appropriate.
You may better approach high court seeking to set aside the recall order.
The defendant has moved the application of recall under Sec 151 CPC, does the applicability of Section 151 prevails in this amendment order, as the defendant said they has objection in the amendment but the court has overlooked this objection? Civil Procedure Code, 1908, Section 151-- Power to recall an order-- Scope of-- Grounds-- Legal position summed up. Held-- A Tribunal or a Court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the Court prejudicing a party or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.
Supreme Court 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.
Kushalbhai Ratanbhai Rohit & Ors v. The State of Gujarat (SLP (Crl.) No.453 of 2014)
1) Court can recall the same order.
2) You can appeal in High court against order.
See if the natural justice was not followed other side was not heard then in that case court can recall the order and provide an opppoopport to other side to make its arguments.
If the said order is exfacie illegal, obtained by fraud and misguiding the court then it can be recalled
The citation what you have referred for recall has one clause to invoke section151 cpc, i.e., non joinder of necessary party.
Whereas in your case the defendent pleaded i8 one of the defendants was not examined, which cannot be termed as a strong reason for recalling its order by the same court.
Therefore you may take up a revision against the recall decision of trial court seeking to set aside the decision.
Application for recall of order can be made under section 151 Cpc
court has inherent power to recall its order
As I have advised above the order of recall is not based on law and can be set aside by the high court once you file revision.
So do it asap.
Good luck.