IN THE HIGH COURT AT CALCUTTA

CIRCUIT BENCH AT JALPAIGURI CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Debangsu Basak

C.O. 133 of 2023

Shri Jagannath Roy

Vs.

Swami Purnarupananda

With

CAN 1 of 2024

For the Applicant in

CAN 1 of 2024 : Mr. Soumyajyoti Dutta

Mr. Anurag Sharma

For the Opposite Party : Mr. Narendra Nath Das

Mr. Pragyadip Roy Basunia

Mr. Jagesh Chandra Roy

Mr. Debojyoti Roy

Heard & Judgment on : January 6, 2026

Debangsu Basak, J.:-

1. For the sake of convenience, the parties herein are referred to as the

plaintiff and the defendant as they appeared in the suit.

2. The recalling application is at the behest of the plaintiff in the revisional

suit.

3. During the pendency of the suit filed by the plaintiff, which is a suit for

specific performance of a contract one of the defendants expired, suit was

declared to be abated by the learned Trial Judge without noticing the fact that one of the defendants was one of the heirs and legal representative of the deceased defendant.

4. Several applications were filed before the learned Trial Judge to tide of such impasse and the subsequent impasses occurring. Two miscellaneous cases were filed, apart from applications in the pending suit. Ultimately, all of those culminated into Order No. 25 dated July 22, 2022, Order No. 87 dated July 21, 22 and Order No. 2 dated August 5, 2022.

5. These orders were assailed by one of the defendants in the suit by way of revisional application being C.O. 133 of 2023.

6. By an order dated January 31, 2024, the Revisional Court allowed the revisional application being C.O. 133 of 2023 by setting aside the orders impugned on the ground that the surviving defendant and all the heirs and legal representatives of the deceased defendant were not heard while disposing of such applications.

7. Learned advocate appearing for the plaintiff submits that the Revisional Court while setting aside the three impugned orders in the revisional application did not direct disposal of those applications before the learned Trial Judge. He seeks reliefs to that extent by way of this recalling application.

8. Learned advocate appearing for the defendant submits that there was no mistake on the part of the Revisional Court warranting a recalling application to be allowed in the nature as made by the plaintiff. In support of such contention, he relies upon (1999) 2 S.C.R. 1194 (Sri Budhia Swain & Ors. vs. Gopinath Deb & Ors.)

9. Sri Budhia Swain & Ors. (supra) on the issue of the power of Tribunal of a Court to recall its earlier order is of the following view:-

“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 judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppels or acquiescence.”

10.In the facts of the present case, one of the essential ingredients on which a Court can exercise its power of recalling stand satisfied, namely, there is a mistake of the Court prejudicing the party.

11.In the facts of the present case, while setting aside the three orders impugned in the revisional application the Revisional Court did not decide on the merits of the three applications on which the three orders impugned in the revisional application were passed. In effect, the three applications in which the three orders impugned