The primary prayer in both recall applications was substantially the recall of the order dated December 6, 2018, and the Court rejected the second recall application on the ground of constructive res judicata and Order II Rule 2 of the Code of Civil Procedure.

JUDGMENT

Sabyasachi Bhattacharyya, J. - By the present review application, the revisionist petitioner in CO No.3670 of 2019 has sought review of an order dated August 25, 2021 passed in the said revisional application under Article 227 of the Constitution of India.

2. Learned counsel for the review applicant/revisionist petitioner argues that this Court proceeded on a patently erroneous premise in affirming the order impugned in the said revisional application. The basis on which this Court's order was passed, it is submitted, was that the Trial Court had, by an order previous to the impugned order, already dismissed an application for recall of the order dated December 6, 2018 passed in Money Suit No. 115 of 2018. Hence, this Court as well as the Trial Court proceeded to observe that the applicant could not reopen the said order dated December 6, 2018 afresh.

3. However, learned counsel for the petitioner argues that the previous order of the Trial Court, whereby the Trial Court had allowed an application for recall of the earlier order dated December 6, 2018, was only in the context of seeking a re-hearing of an application under Order XXVI Rule 4A of the Code of Civil Procedure, which was different in premises than the subsequent application, rejected by the impugned order, which had also sought for recall of the order dated December 6, 2018, but had prayed for recall of the fixation of the suit itself on the ex parte Board.

4. Learned counsel submits that, even apart from the aforesaid logic, this Court's order should be reviewed and the Trial Court's impugned order set aside, since the applicant was erroneously indicted by the courts for the laches of the advocate.

5. Learned counsel places reliance on several judgments on such score as well as on the proposition that the power of review is wide enough for the court to recall its own order if a mistake was committed by the court, either on fact or on law.

6. The learned Senior Advocate appearing for the opposite party, on the other hand, contends that the Trial Court, in the order impugned in the revisional application, had rightly considered that the petitioner's previous prayer was ultimately for recall of the order dated December 6, 2018, irrespective of the ancillary prayer. Hence, after its rejection, a second application for recall of the said order dated December 6, 2018 would not lie.

7. On the arguments advanced by learned counsel for the petitioner, the learned Senior Advocate for the opposite party contends that there is nothing on record to suggest any fault on the part of the advocate.

8. The learned Senior Advocate further argues that the second application for recall of the order dated December 6, 2018, in any event, was barred by the principle of constructive res judicata and the principle incorporated in Order II Rule 2 of the Code of Civil Procedure.

9. Upon considering the cited judgments, it is elicited that the Supreme Court, in M/s. Mukesh Tempo Service Vs. M/s. National Insurance Company Limited and another, passed in Civil Appeal No.2282 of 2019 on February 28, 2019, had opined that the delay in that case was on account of negligence on the counsel's part and the litigant should not suffer due to mistake of his counsel. The court, therefore, condoned the delay in moving the application for restoration of appeal.

10. In Rafiq and another Vs. Munshilal and another, reported at AIR 1981 SC 1400 =[ (1981) 2 SCC 788], the Supreme Court held that the party to a litigation may be a villager or belong to a rural area and have no knowledge of the court's procedure. At the time of hearing the appeal, the personal appearance of the party is not only not required but hardly useful. The Supreme Court further recorded the submission of counsel appearing in the matter to the effect that a practice had grown up in the High Court from which the matter had been preferred, amongst the lawyers, that they remain absent when they do not like a particular bench. However, the Supre