Point of Law: High Court being a Court of record has jurisdiction to recall its own order and that while exercising the power under Article 226 of the Constitution of India nothing precludes the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction.

JUDGMENT :

ABDUL MOIN, J.

C.M. Application No. 11525 of 2020

1. Heard learned counsel for the applicant and Sri. Gaurav Mehrotra, learned counsel for the respondent.

2. An application for recall has been filed seeking recall of the order dated 20.01.2020 passed in Contempt Petition No. 1213 of 2019, Sudhir Kumar Srivastava vs. Alok Kumar Mukherjee, by which the contempt petition had been dismissed. The said application has been filed by learned counsel for the applicant duly supported by an affidavit of one Sri. Shanti Sewak, describing himself to be the Clerk of learned counsel for the applicant. It has also been indicated in paragraph 2 of the affidavit that the applicant is an affected person and has been falsely implicated. It is not understood as to what prevailed upon the Clerk of the learned counsel for the applicant to file an application for recall inasmuch it has not been indicated in the said affidavit as to what has precluded or prevented the applicant himself namely Sudhir Kumar Srivastava from filing the said application and it has been left for the Clerk of the learned counsel to indicate that the applicant has been falsely implicated.

3. Be that as it may, the fact of the matter is that the Court vide order dated 20.01.2020 had dismissed the contempt petition after considering the facts and circumstances of the case.

4. Upon the application for recall being taken up, a preliminary objection has been raised by Sri. Gaurav Mehrotra, learned counsel for the respondent, that the application for recall in effect is seeking review of the order dated 20.01.2020 by which the contempt petition had been dismissed and once no power of review is vested with the Court under the Contempt of Courts Act, 1971 (for short ‘Act of 1971’) as such the said application merits to be rejected on this ground alone.

5. In support of the said argument, learned counsel for the respondent has placed reliance on a judgment of the Apex Court in the case of Delhi Administration vs. Gurdip Singh Uban and Others, (2000) 7 SCC 296, to contend that an application for “clarification, modification or recall” in substance is an application for review.

6. Placing reliance on a judgment of this Court passed in Contempt Petition No. 1591 of 2000, Sharwan Kumar vs. Harminder Raj Singh (IAS), decided on 09.02.2016, it is argued that the Court has held that where a contempt petition has been dismissed on merits then an application for recall would not be maintainable.

7. Reliance has also been placed on a Division Bench judgment of this Court in the case of State vs. Baldev Raj, 1991 SCC Online All 1070, which has also held the same.

8. Placing reliance on the aforesaid judgments, Sri. Gaurav Mehrotra, learned counsel for the respondent, submits that the preliminary objection merits to be upheld and the application for recall merits to be rejected.

9. On the other hand, learned counsel for the applicant on the basis of averments contained in paragraph 5 of the application for recall as well as paragraph 13 of the written submissions filed by the learned counsel for the applicant dated 04.03.2020 contends that as this Court has “failed” to peruse the records of the case and notice the averments made on affidavit as such the application for recall would be maintainable. Various other grounds have also been taken on the merits of the case so much so that in paragraph 6 of the application it has been contended that certain submissions of the counsel for the applicant as have been quoted verbatim in the said paragraph of the application, were not the submissions of the counsel for the applicant/petitioner.

10. Strangely, the averments of paragraph 6 of the affidavit have been sworn by the Clerk on the basis of information derived from the learned counsel for the applicant. What is strange is that the order dated 20.01.2020 was dictated in the open Court and no demur or protest was raised by the learned counsel for the applicant at the time of dictation of the said order t