The central legal point established in the given judgment is the power of recall by the court and the grounds for recalling an order, as outlined in the judgment of the Supreme Court in the case of Budhai Swain and Others in Gopinath Dey and Others, reported in (1999) 4 SCC 396.

JUDGMENT :

1. Heard Mr. T.J. Mahanta, the learned Senior Counsel assisted by Mr. D. Gogoi, learned counsel appearing for the petitioner. Also heard Mr. G. Choudhury, learned counsel for the respondent No. 2. Mr. A. K. Sahewalla is appearing on behalf of respondent nos. 1, 3, 4 and 5.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 19.05.2018 passed in Money Suit No. 16/2008. The brief fact of the instant case is that the petitioner as plaintiff had filed a suit for realisation of money along with interest both pendent lite and future. In the said suit the respondent nos. 1 and 2 were initially arrayed as defendant. The said respondent nos. 1 and 2 submitted their written statement. Pursuant thereto the Court below disposed of the suit on admission by a judgment and decree dated 18.03.2009. Thereupon the respondent nos. 1 and 2 herein filed an appeal before this Court which was registered and numbered as RFA 18/2009. This Court vide a judgment dated 10.06.2015 remanded the matter back to the Trial Court for deciding the suit afresh after framing issues and dispose of the same in accordance with law.

3. An application was filed by the defendant no. 1 under Order XXII Rule 10 of the Code of Civil Procedure bringing to the notice of the Court that the earlier Director i.e. the defendant no. 2 had already ceased to be Director and new Directors were appointed and the list of the names of the Directors were given in the said application. The names of the said Directors who have been given in the said application are the respondent nos. 3, 4 and 5 before this Court. There upon an application under Order VI Rule 17 was filed by the plaintiff/petitioner herein whereby it was prayed that the new Directors i.e. the respondent nos. 3, 4 and 5 herein should be arrayed as defendant nos. 3, 4 and 5 and paragraph no. 13(a) was sought to be inserted by way of amendment. The said application was under Order VI Rule 17 was allowed by the Trial Court and pursuant thereto on 8th of August 2016 the amended plaint was filed. Upon filing of amended plaint, the Court fixed the matter for filing of the written statement on 07.09.2016. Subsequent thereto on 07.09.2016 the Court below on a misconception that only the defendant nos. 3, 4 and 5 were added without there being any amendment to the pleadings, passed an order that there was no necessity of filing written statement and fixed 02.11.2016 for service report. On 02.11.2016 the newly impleaded defendant nos. 3, 4 and 5 filed their written statement. The plaintiff raised objection to the filing of the written statement and accordingly vide an order dated 02.11.2016 the case was fixed for hearing upon the point of acceptance of written statement on 22.11.2016. Thereupon the record reveals that it was on 19.05.2018 the Court accepted the written statement and it is against the said order dated 19.05.2018 the petitioner is before this Court under Article 227 of the Constitution of India.

4. Mr. T.J. Mahanta, the learned Senior Counsel appearing on behalf of the petitioner submits that the Court could not have passed the order dated 19.05.2018 without setting aside or reviewing the order dated 07.09.2016 whereby it has been specifically mentioned that the question of filing of the written statement does not arise.

5. I have perused the amendment application filed by the plaintiff/petitioner wherein in addition to incorporating the name of the newly appointed Directors an additional paragraphs 13(a) was inserted to the pleadings. Pursuant to filing of the amended plaint on 8th of August, 2016 the Court below has fixed filing of written statement for the amended plaint on 07.09.2016. Surprisingly on 07.09.2016 the Court without taking into consideration the insertion of paragraph 13(a) to the amended plaint came to the finding that only the name of the Directors were incorporated in the pleadings and thereby held that the question of filing of written statem