Madhya Pradesh High Court
Anita Gupta vs Asha Ram Singh Mavai on 14 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
MP No. 5979 of 2023
(ANITA GUPTA Vs ASHA RAM SINGH MAVAI)
Dated : 14-05-2024
Shri Dinesh Kumar Agrawal, learned counsel for the petitioner.
1. This Court vide order dated 11.10.2023 decided the present petition
and dismissed the same with cost of Rs. 10,000/- to be paid to the
respondent/complaint. The short facts of the case are that present petition was
filed by the petitioner/accused assailing the order dated 27.09.2023 passed by
the Sessions Court dismissing the criminal revision filed by the petitioner
challenging the order dated 11.08.2023 passed by the Judicial Magistrate First
Class in a case wherein the petitioner was facing trial under Section 138 of the
Negotiable Instruments Act. Petitioner moved an application in pending case at
the stage of defence evidence under Section 91, 243/311 of the Cr.P.C. r/w
Section 145 of the NI Act and under Section 165 of the Evidence Act for
calling the witness of State Bank of India in defence. The application was
dismissed by the trial court on the ground that the intention of the petitioner is
to delay the proceedings and petitioner has not moved the application
bonafidely. After considering the arguments advanced by the learned counsel
for petitioner, this Court declined to interfere in the order and considering the
fact that the matter is pending since last 13 years and the trial is delayed due to
attitude of petitioner, the petition was dismissed with cost of Rs. 10,000/-.
2. I.A.No.9846/2024 is moved by petitioner for recalling the order dated
11.10.2023 mainly on the ground that in the order in para No.2, it is mentioned
that the case is fixed tomorrow for pronouncement of judgement and in para
No.6, it is mentioned that when the case was listed for final arguments on
merits, the application was moved. Therefore, the order passed by this Court
on 11.10.2023 suffers from the mistakes and the same should be recalled.
3. Learned counsel for petitioner vehemently argued and submitted that
order passed by this Court is based on wrong impression that the application
was moved at the stage of final arguments when the case was fixed for the
pronouncement of judgement, whereas the case was not fixed for final
arguments and it was at the stage of defence evidence, when the application was
moved. He relied on the judgement of the Apex Court in the case of Greater
Noida Insutrial Development Authority Vs. Prabhjit Singh Soni and Anr.,
Civil Appeal Nos.7590-7591 of 2023 delivered on 12.02.2024 whereby
considering the judgement delivered by the Apex Court in the case of Budhia
Swain Vs. Gopinath Deb (1999) 4 SCC 396, the Apex Court has held that a
Tribunal or Court is vested with such ancillary or incidental powers as may be
necessary to discharge its functions effectively for the purpose of doing justice
between the parties and in absence of a statutory prohibition, in an appropriate
case, it can recall its order in exercise of such ancillary or incidental powers.
The Apex Court in the judgment of Greater Noida (Supra) has reproduced
para No.8 of the judgement of Budhia (supra) which is as under:-
47. In Budhia Swain Vs. Gopinath Deb, after
considering a number of decisions, a two-Judge
Bench of this Court observed:
"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
judgement,
(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 has not been served at
all or had died and the estate was not represented. .
The power to recall a judgement will not be
exercised when the ground for reopening the
proceedings or vacating the judgement 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 judgement may be lost by
waiver, estoppel or acquiescence.
4. From the bare reading of the observations recorded in the matter of
Budhia (supra), it appears that order may be recalled by any tribunal or court,
if it appears that proceeding culminated into an order suffer from the
inherent lack of jurisdiction and such lack of jurisdiction is patent. This
situation is not available in the present case. Second term described by the
Apex Court is that if there exits fraud or collusion in obtaining the
judgment, then order may be recalled. This is also not available in the
present case. The third situation is that if there has been a mistake of the
court prejudicing the party. In the present matter, it is mentioned that the case
was fixed for final arguments when the application was moved and in paragraph
2, it is mentioned that tomorrow the case is fixed for pronouncement of
judgement but the order was not passed only on the ground that the application
was filed at the stage of final arguments and therefore, the same could not have
been allowed. However, the Court has considered the conduct of the petitioner
and after recording the fact that the case is pending since last 13 years because
of the attitude of the petitioner to delay the case somehow and the similar
finding was recorded by the learned Magistrate, therefore, the order was passed
and the petition was dismissed and it cannot be accepted that because of the
mentioning of these facts which are, as per the petitioner, are incorrect, any
prejudice is caused to any party or the petitioner. Therefore, this ground is not
available in the present case. The fourth and last ground mentioned in the case
of Budhia (supra) is that if the judgement is rendered in ignorance of the
fact that a necessary party had not bee served at all or had died and the
estate was not represented, then the order can be recalled. This situation is
also not available in the present case. Therefore, the judgment passed in the
matter of Greater Noida (supra) is not helpful to the petitioner.
5. Learned counsel for petitioner submitted that on 08.05.2024, petitioner
has been acquitted from the charges under Section 138 of the Negotiable
Instruments Act and he prays for recalling the order of imposition of cost of
Rs. 10,000/-.
6. In the considered view of this Court, no ground is made out to recall
the order and the order was passed after considering the arguments of the
counsel for the petitioner. Cost was imposed considering the fact that the
petitioner has delayed the trial. Therefore, no case of recalling is made out.
7. Resultantly, I.A. No.9846/2024 is dismissed.
8. Office is directed to consign file to the records.
(VINAY SARAF)
JUDGE
Vishal
