The court cannot recall its own order after a significant period without any enabling provision permitting such action.

Judgment:

The petitioners have impugned the order dated 13.11.2013 in this petition filed under Article 227 of the Constitution. By this order, the Court below has recalled its order dated 21.01.2011.

2. Brief facts necessary for adjudication of this matter are as under:-

The petitioners/plaintiffs filed a suit for declaration and permanent injunction. During the pendency of the suit, the petitioners preferred an application under Order 13 Rule 10 read with Section 151 C.P.C. This application was decided by the Court below on 21.01.2011. The Court below allowed the said application and directed that the record and judgment dated 07.09.1994 be summoned from the Court of concerned Tehsildar. However, this order could not be implemented. The record did not reach before the Court below despite the aforesaid order. Thereafter the Court below by impugned order dated 13.11.2013 recalled the said order by stating that the petitioners could have obtained certified copy of the judgment in question and for that purpose there is no justification in summoning the record/judgment from other Court. Accordingly, order dated 21.01.2011 to the extent it related with summoning of the record was withdrawn by the Court below.

3. Criticizing this order, Shri P.C. Chandil submits that the order dated 21.01.2011, in absence of challenge has attained finality. The said order could have been disturbed only in appeal or in appropriate proceedings. Review as per order 47 Rule 1 C.P.C could have been made upto 30 days. The Court below was not justified in recalling its order and its order is without jurisdiction.

4. Shri Kamal S. Rochlania, Advocate for the respondent No.1 and Shri Sanjay Sharma, Advocate for the respondent No.3 supported the impugned order and submit that there is no error of law in the order impugned. Shri Sanjay Sharma submits that proper way to prove the document is as per Section 76 of the Evidence Act. Petitioners can very well take assistance of the said provision to prove the documents. The Court below was justified in recalling its order.

5. I have heard learned counsel for the parties and perused the record.

6. It is admitted between the parties that by order dated 21.01.2011 the Court below had directed for summoning the record and judgment from the Court of Tehsildar. This order was not put to test before any higher forum nor any review was prayed for within limitation. Admittedly, limitation for the review is 30 days. The Court below after about two years has recalled/taken back its order which is called in question herein. Core issue before this Court is whether Court below was justified in passing the order dated 13.11.2013. It is trite that a thing which cannot be permitted to be done directly cannot also be permitted to be done indirectly.

7. I find force in the argument of Shri Chandil that if the order dated 21.01.2011 was erroneous, it was open to the parties to take appropriate proceedings to get the order set aside. It was also open to the Court below to review this order within the period of limitation. No other enabling provision is brought to the notice to this Court which permits the Court below to recall its own order after two years. The Court below should have examined the aspect of possibility to bring the certified copy before passing order dated 21.01.2011. After having passed said order, it was not open to the Court below to recall the said order after two years. In the opinion of this Court, order dated 13.11.2013 is without jurisdiction and cannot be permitted to stand.

8. Resultantly, the impugned order dated 13.11.2013 is set aside.

Petition is allowed. No Costs.