V PRABHA Vs. STATE

JUDGEMENT

(1.) By this application the objector, legal heir of late Raja Pratap Bhan Prakash Singh, wants this Court to recall its order dated 13th 0ctober,1987 passed in I.A.No-4270/87. It is the case of the applicant that the applicant had filed anapplication under Order 39 Rules I and 2 Civil Procedure Code seeking restraint order against the petitioner from dealing with properties mentioned in the Schedule annexed to the probate petition. In the meantime, the petitioner filed an application for appointment of an Administrator. The application was allowed vide order dated 13th October, 1987. This order was passed in the absence of the applicant. The eldest son of the deceased Raja Pratap Bhan Prakash Singh arrived at Delhi on 10th 0ctober,1987 in order to pursue this petition. His lawyer fell sick, however, keeping in view the interest of the applicant, his lawyer even during illness came to the Court on 13th October,1987 but due to rush of work and on account of his illness he could not appear in the Court when the case was called. In the absence of the applicant/objector and his counsel, this Court passed the ex-parte order appointing an Administrator for the properties mentioned in paras 4 & 5 of the Schedule. On account of the omission on the part of the lawyer, the ex-parte order was passed. The applicant through his lawyer immediately on the same day moved an application for recalling of the order which was listed before Court on 15th 0ctober,1987. The court on his application issued notice on 19th October, 1987 and in the meantime stayed the operation of the order passed by this Court dated 13th 0ctober,1987. This application is supported by the affidavit of the objector sworn before Oath Commissioner on 13th October,1987 itself.

(2.) This application, seeking recalling of the order dated 13.10.87, has been contested by the petitioner, inter alia,on the ground that this Court has no jurisdiction to recall its order passed on merits. It has become final. This Court has no inherent power to review its own order. Even otherwise no grounds have been made out for setting aside or recalling the said order as the said order was passed on merits. The remedy against the impugned order is by way of appeal.

(3.) I have heard the ld.counsel for the parties and perused the record. Admittedly when the impugned order dated 13th 0ctober,1987 was passed the applicant/ objector was not presnet. On all previous dates the objector was represented by Mr. Mukul Rohtagi, Advocate. It has been explained in this application that the said counsel of the objector had fallen ill. Even though he attended the court on 13th October,1987 but could not reach the court when the case was called hence ex-parte order was passed. Mr. Rohtagi immediately drafted the present application and filed the same in the Court indicating that due to his illness and rush of work he could not reach the Court when the case was called. So far as the bonafide of the objector is concerned that cannot be doubted. He came to Delhi on 10.10.87. This shows that there was no negligence or malafide on his part. It was due to illness of his counsel and consequental rush of work that counsel did not attend to the case. For the act of ommission and commis- sion of the counsel, litigant cannot be made to suffer. The petitioner in her reply has admitted that the objector was present in the Court on 13.10.87. No malafide can be inferred. In para 6 of the reply it is stated that "The junior and clerk of the counsel for respondents appeared arid prayed before the Court to get the matter passed over for sometime at the second call Prabhakar alongwith the junior counsel of Mr-Mukul Rohtagi were present outside the Court room." This fact lend support to the version given by the applicant when he stated that he was present in the Court on 13th 0ctober,1987 but waited for his lawyer Mr.Rohtagi to come. This shows that the objector/respondent took interest in the case and, therefore, came all the way to Delhi to attend this case on the date fixed, Haring come to Delhi and having attended the Court, one caimot imagine why he would earn ex-parte order unless what he has slated is correct that his lawyer due to illnesss and rush of work could not attend the Court. No fault can be attributed to the objector. He cannot be made to suffer for the negligence of his counsel. The non-appearance of the objector on 13th October, 1987, when the case was called was neither intentional nor malafide but due to the circumstances beyond his control, I think the applicant has made out a good case and shown sufficient cause for the recalling of the impugned order.