Andhra Pradesh High Court - Amravati
Rmp Infotec Pvt. Ltd., vs The State Of A.P.,Rep.,Pp on 7 September, 2022
HIGH COURT OF ANDHRA PRADESH
MAIN CASE NO: Transfer Crl. Petition No.52 of 2016
PROCEEDING SHEET
Sl.No. Date ORDER OFFICE NOTE
(13) 07.09.2022 BSB, J
I.A. (SR) 67070 of 2022
In
Transfer Crl.P.No.52 of 2016
This application is filed under
Section 482 CrPC to recall the order,
dated 22.03.2016, passed in Transfer
Criminal petition No.52 of 2016 on the
file of this Court.
Office took an objection as to
how this petition to recall the order is
maintainable.
Learned counsel for the
petitioner submitted that though there
is no specific provision for recalling an
order, as per the decision of the
Supreme Court in Budhia Swain v.
Gopinath Deb1, under certain
circumstances, Court can recall its
own orders. In the said decision, at
paragraph No.6, the earlier decision of
1
1999 AIR (SC) 2089
2
the Supreme Court in Indian Bank v.
M/s. Satyam Fibres India Pvt. Ltd.
[(1996) 5 SCC 550] , vide paragraph
no.23 was referred, wherein, it was
held that Courts have inherent power
to recall and set aside an order (i)
obtained by fraud practiced upon the
Court, (ii) when the Court itself
commits a mistake which prejudices a
party.
Another decision of the Supreme
Court rendered in the case of
A.R.Antulay v. R.S.Nayak [AIR 1988
Supreme Court 1531] was also
referred, wherein, at paragraph
No.130, it was held that setting aside
judgment is permitted where (i) a
judgment was rendered in ignorance of
the fact that a necessary party had
not been served at all and was shown
as served or in ignorance of the fact
that necessary party had died and the
estate was not represented, (ii) a
judgment was obtained by fraud, (iii) a
party has had no notice and a decree
was made against him and such party
approaches the Court for setting aside
the decision ex debito justitiae on
proof of the fact that there was no
3
service.
In the decision of the Supreme
Court in Budhia Swain v. Gopinath
Deb (1 supra), it was held at paragraph
No.8 as follows:
"8. In our opinion 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
4
judgment may be lost by waiver,
estoppel or acquiescence."
In the light of the above
proposition of law, the petitioners
prima facie showed that under certain
circumstances, a Court can recall its
own order. As such, the present
petition can be registered and cannot
be rejected at the threshold before
hearing the respondent.
As such, Registry is directed to
number the petition, if it is otherwise
in order.
Post on 09.09.2022.
_________________
B.S.BHANUMATHI,J
RAR
