Allahabad High Court
Saraswati Medical @ Dental ... vs State Of U.P. Thru. Addl. D.M. ... on 12 March, 2021
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- MISC. SINGLE No. - 6451 of 2021
Petitioner :- Saraswati Medical @ Dental College
Respondent :- State Of U.P. Thru. Addl. D.M. (Finance & Revenue) Lko.&Ors.
Counsel for Petitioner :- Suyash Gupta
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
Heard.
This petition has been filed with the following main prayer:-
"Wherefore it is humbly prayed that recovery proceedings/ Recovery Certificate initiated against the applicant contained in Annexure No. 5 of the writ petition may kindly be stayed during the pendency of writ petition/ recall application pending before the Court of Additional District Magistrate (Finance & Revenue), Lucknow/ Commissioner Employee's Compensation, Lucknow may kindly be stayed."
Learned standing counsel Sri Hemant Kumar Pandey, has pointed out that a recall application under Order 9 Rule 13 of the C.P.C. read with Section 151 of the C.P.C. is not maintainable before the Commissioner Employee's Compensation as the C.P.C. does not apply to the Commissioner Employee's Compensation who acts as a Tribunal.
It has also been submitted that an application for recall is not envisaged under the Act but an Appeal is provided under Section 30 which has to be filed within 60 days against the order awarding compensation or interest etc. It has also been submitted that the claim for compensation was filed in the year 2016 and the petitioner was served notice of the compensation claim properly but the petitioner deliberately neglected to appear before the Commissioner Employee's Compensation, Lucknow, and now has filed this petition alleging that the order was passed ex parte.
It has been submitted that no doubt a recall/ review is maintainable ex debito justitiae as held by Hon'ble Supreme Court in Grindlays Bank Vs. Central Government Industrial Tribunal and others, however such recall application has to say specifically that no notice was served only then it can be entertained. There is no such averment in the petition that notice was not served on the petitioner.
It has also been submitted on the basis of the judgment rendered by Hon'ble Supreme Court in Parimal Vs. Veena @ Bharti, AIR 2011 SC 1150, that if notice is served but the parties refuse to appear to plead their case then no application under Order 9 Rule 13 of the CPC is maintainable.
Be that as it may, this Court has been approached by the petitioner only for a limited prayer as given in prayer clause (i) of the petition.
This petition is disposed of with a direction to the respondent no.1 to consider and decide the application for recall moved by the petitioner with regard to its maintainability and also on its merits and pass appropriate orders within a period of three months from the date a copy of this order is produced.
Order Date :- 12.3.2021
Rahul
