Power To Recall Order Cannot Be Exercised Merely Because Similar Matters Are Pending: Supreme Court
The dispute arose after the Division Bench of the High Court, by order dated March 25, 2024, reviewed and recalled its earlier judgment dated March 23, 2023 in a writ appeal and directed that it be heard along with connected matters.
The Supreme Court of India has held that the power to recall an order cannot be exercised merely because similar matters are pending, setting aside a Kerala High Court order that had recalled its earlier judgment in a writ appeal.
A Division Bench of Justice Ahsanuddin Amanullah and Justice Vijay Bishnoi observed that the High Court misdirected itself in recalling a detailed judgment on merits only on the ground that other writ appeals of similar nature were admitted and pending and allowed the appeal in The Kerala Financial Corporation v. Premaraj M.A. & Ors.
The Court held, “Having considered the matter in its entirety, we find that the contention raised by the learned senior counsel for the appellants 6 is correct. The power to recall, as has been done in the present case, is totally erroneous. The High Court misdirected itself by holding that just because other Writ Appeals of similar nature were admitted and pending, the present case also ought not to have been decided together and thus, a detailed order on merits has been recalled for being heard again along with the other Writ Appeals.”
The dispute arose after the Division Bench of the High Court, by order dated March 25, 2024, reviewed and recalled its earlier judgment dated March 23, 2023 in a writ appeal and directed that it be heard along with connected matters.
Senior Advocate V. Chitambaresh, Senior Advocate Dhanya P. Ashokan appeared for the appellants and Senior Advocate P.V. Dinesh appeared for the Respondents.
The counsel for the appellant argued that once a judgment had been passed on merits, the pendency of similar matters could not be a ground for recall. He relied on Budhia Swain v. Gopinath Deb and Greater Noida Industrial Development Authority v. Prabhjit Singh Soni, which lay down the limited circumstances in which courts may recall their orders.
These include situations where an order is obtained by fraud, where the court is misled, where there is a mistake prejudicing a party, or where a necessary party was not served or had died and was unrepresented. The Court reiterated that recall cannot be used where a proper remedy such as appeal or revision was available but not availed.
On a query from the Bench, counsel for the respondents, could not sustain the High Court’s reasoning for allowing the review petition. The Court noted, “Though, Mr. P.V. Dinesh, learned senior counsel for the respondents no. 1 to 5 has assisted the Court, but on a direct query as to the ground on which, the review petition has been allowed could be sustained, he could not defend, especially in view of the submissions made and the precedents cited by learned senior counsel for the appellants.”
Agreeing with the appellants, the Supreme Court held that recalling the judgment on the ground that similar matters were pending was “totally erroneous” and “in the teeth of both the settled principles of review/recall.”
Accordingly, the Court set aside the impugned order dated March 25, 2024, and restored the High Court’s earlier judgment dated March 23, 2023. Pending applications were also disposed of.
Cause Title: The Kerala Financial Corporation v. Premaraj M.A. & Ors.
Appearance:
Appellants: Senior Advocates V. Chitambaresh, Dhanya P. Ashokan, AOR Lakshmeesh S. Kamath, Advocates Venugopal, Samriti Ahuja, Aditi Prakash, Eka Kumari Singh
Respondents: Senior Advocate P.V. Dinesh, Advocates Rishi Maheshwari, Bharat Sood, Anna Oommen, Jashan Vir Singh, AOR P. S. Sudheer, Anne Mathew, Dushyant Parashar, Nishe Rajen Shonker, Advocates Anu K. Joy, Alim Anvar, Santhosh K., Devika A.L.