The main legal point established in the judgment is that the scope to review an order and to recall an order are different, and the power of review can only be exercised for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it.

VEDPAL, J

Civil Misc. Application No. 105957 of 2010 has been moved by Shri Mohit Kumar (in Person) plaintiff No.2 of Original Suit No. 865 of 1997 with the prayer that the order sated 6.10.2010 rejecting the application 175-C2 be recalled or reviewed. The defendants filed their reply/ Objection C.M. Application No. 110251 of 2010.

2. I have heard Shri Mohit Kumar (in person) plaintiff no.2 and learned counsel for the defendants on the said application and its objection at a considerable length.

3. It has been submitted by Shri Mohit Kumar that he moved an application 175-C2 when the case was pending before learned Additional District Judge, Dehradun for summoning dealing clerk and certain documents which was rejected vide order dated 6.10.2010 on technical grounds. That the said application was disposed of as "rejected" and not as "dismissed" which goes to show that the application was not disposed of on merit because rejection amount disposal of application without going into the merit and it is apparent mistake on record and as such it is necessary to recall or review order dated 6.10.2010. It was further submitted that there was no delay on the part of the plaintiff to move application 175-C2 while it has been rejected on the ground that the application was moved after inordinate delay. It was also submitted that the provisions of Code of Civil Procedure which has been cited by the court in its order dated 6.10.2010 are not applicable in the present case because the object of the plaintiff was not to summon any witness before his evidence but the clerk was to be summoned to produce the papers which contains admitted signature of Swami Ram. He further submitted that by order dated 6.10.2010, the plaintiff will be prejudiced which is one of the ground to recall the order and as such the order dated 6.10.2010 should be reviewed or recalled.

4. Shri Mohit Kumar also relied on ruling of Hon'ble Supreme Court in the case of Budhia Swine and others Vs. Gopinath Day and others reported in 1999(4) SCC 396 wherein it has been held that if by mistake of the court, a party is prejudiced, the court may recall the order.

5. The defendants raise a preliminary objection that the scope to review the order and to recall the order are quite different and it is not permissible under the law of pleading to claim alternate and ambiguous inconsistent relief in a single application for the same cause of action. It was further submitted that the order dated 6.10.2010 disposing application 175-C2 was passed on merit and was passed after detailed hearing to both the parties and their respective contentions were dealt with by the court and there is no error apparent on the face of record and the only intention of the plaintiff is to delay the proceedings on one or the other pretext. It was further submitted that it is wrong to allege that the witness was only summoned to produce document. It is evident from application 175-C2 that documents were separately summoned and the witness was separately summoned. It was further submitted that it is also wrong to allege that there is any document which contains admitted signature of Shri Swami Ram and in fact the alleged signature was never admitted to be of Swami Ram by defendants hence the question of summoning documents allegedly containing admitted signature of Swami Ram does not arise and application 175- C2 was rightly rejected. It was further submitted that if an application is moved and it is disposed of, it is either allowed or rejected and not dismissed because dismissal entails final closure of the proceedings. Application 175-C2 was rejected after hearing the parties by a detailed order on merit and demerit and by no stretch of imagination, the said application cannot be said to have been rejected technically. It was further submitted that no mistake was committed by the court in rejecting application 175-C2 and as such there was no mistake on the part of the court and thus the ruling cited