JUDGMENT :

1. Heard Mr. N. B. P. Singha, the learned counsel appearing on behalf of the Petitioners.

2. This is an application filed under Article 227 of the Constitution of India challenging the order dated 16.12.2022 whereby the learned Court of the Civil Judge, Goalpara vide the order dated 16.12.2022 have allowed the plaintiffs to file their written statement against the counter claim.

3. For the purpose of appreciating the facts involved in the instant case, it is relevant to take note of that the respondents herein had instituted a suit being Title Suit No.32/2022 before the Court of the Civil Judge, Goalpara claiming right, title and interest of the plaintiffs over the suit land; for a decree for khas possession of the suit land by evicting the defendants, their men, women, workmen, agents etc. from the suit land and even by demolishing any structure on the suit land; for mesne profit of Rs.1,00,000/-per annum be passed in favour of the plaintiffs along with interest and for other reliefs.

4. Pursuant to the suit being filed, the defendants who are the petitioners herein jointly filed a written statement cum counter claim on 26.08.2022. However, on the very date, the Court below instead of treating the counter claim as a cross-suit and applying the provisions of Order VIII Rule 6(A)(3) fixed the matter for issues. The said order dated 26.08.2022 which is enclosed as Annexure-1 to the petition on the face of it shows that the Court below had committed a mistake which has prejudiced the plaintiffs. It further appears from the records that the suit proceeded and the learned counsel appearing for the plaintiffs did not point out before the Court about the mistake committed by the Court. The suit reached the stage of filing of the evidence of the plaintiffs. At that stage, the learned counsel for the plaintiffs filed an application on 16.12.2022 pointing out the mistake which the Court has committed while passing the order dated 26.08.2022 by not giving an opportunity to the plaintiffs to file written statement against the counter claim and as such prayed that the earlier order be recalled and the plaintiffs be allowed to file the written statement for the counter claim.

5. The Court realizing the said mistake which has caused prejudice to the plaintiffs, vide the order dated 16.12.2022 not only allowed the plaintiffs to file the written statement to the counter claim but also fixed 19.01.2023 for objection and hearing. It is against this order that the petitioners have approached this Court on the grounds that the Court below ought not to have allowed the written statement to be filed to the counter claim that too without giving any opportunity to the defendants to object to the petition filed being Petition No.1964/2022.

6. It is a well settled principle of law as held by the Supreme Court in the case of Budhia Swain and Others Vs. Gopinath Deb and Others reported in (1999) 4 SCC 396 as to when the Court can exercise the power to recall. It has been mentioned that every Court has inherent power to recall its own order when such order is obtained by fraud practice upon the Court or where the Court was mislead by a party or when the Court itself commits a mistake which prejudices a party or where 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. Paragraph No.8 of the said judgment being relevant is quoted hereinbelow:

“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