Important Points
1. 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.
2. A suit or proceeding entertained and decided in spite of being barred by limitation is not without jurisdiction; at worst it can be a case of illegality.

Headnote:(i) Recall of order-Conditions precedent to-Power to recall an order/judgment when can be exercised. (Paras 8 & 9)
       (ii) Orissa Estate Abolition Act, 1951-Section 38A read with Sections 6, 7 and 8A-Recall of settlement order-Order of settlement passed in 1966-Order attained finality-Review application filed in 1974-Ground that public notice of claim not served in locality as prescribed in the Act-Plea accepted by OEA Collector-Additional District Magistrate (Land Records) holding that claim petition was beyond prescribed time limit observing that claim petition should have been treated as a lease case remanded case for fresh disposal-High Court held that circumstances did not warrant exercise of power of recall- Held, no fault can be found with order of High Court.
       Held : 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, estoppel or acquiescence. (Para 8)
       A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. (Para 9)
       The appellants sought for review or recall of the order from the O.E.A. Collector solely by alleging that the notice which was required to be published in the locality before settling the land in favour of the respondent No. 1 was not served in accordance with the manner prescribed by law. The appellants did not plead ‘non-service of the notice’ but raised objection only with regard to ‘the manner of service of the notice’. The High Court had called for and perused the record of the O.E.A. Collector and noted that the notice was issued on 15.12.1963 inviting public objection. The notice was available on record but some of its pages were missing. The O.E.A. Collector was satisfied of the notice having been published. Assuming that the notice was not published in the manner contemplated by law, it will at best be a case of irregularity in the proceedings but certainly not a fact striking at the very jurisdiction of the authority passing the order. (Paras 10 & 11)
       An order made on an application filed beyond the time prescribed for filing the same may be an illegal order but is certainly not an order passed without jurisdiction. A suit or proceeding entertained and decided in spite of being barred by limitation is not without jurisdiction; at worst in can be a case of illegality. So also whether an application by way of claim petition or an application for grant by way of lease, both were entertainable by the O.E.A. Collector and it was for him to decide which way he chose to deal with the application. In any case, he had the jurisdiction to deal with the application. (Paras 13 & 14)
       No case was made out before the O.E.A. Collector and the ADM for recalling the order of settlement dated 2.4.1966. The order did not suffer from lack of jurisdiction or from error of jurisdiction much less an inherent one. The High Court has rightly set aside the order dated 2.2.1976 passed by the O.E.A. Collector as the same was without jurisdiction. (Para 15)

Judgment

R.C. Lahoti, J.-The respondent No. 1 is a deity seated at village Bishwanathpur in the District of Puri. On an application filed by the respondent No. 1 under Sections 6 and 7 of the Orissa Estates Abolition Act, 1951 (hereinafter ‘the Act’, for short), the Estate Abolition Collector-cum-Additional Tahsildar passed an order of settlement dated 2.4.1966 in favour of respondent No. 1 settling the lands covered by khata numbers 431 & 438 of village Bishwanathpur. Rent schedule was issued pursuant to the order of settlement and rent was realised from the respondent No. 1 from the date of settlement. There was no appeal preferred against the order dated 2.4.1966 and thus the order of settlement achieved a finality.

2. On 24.7.74 the appellants, 12 in number, who are residents of village Panibhandar, District Puri filed an application seeking review of the order of settlement dated 2.4.66. The only ground for review raised in the application was that the public notice of the claim preferred by the respondent No. 1 was not served in the locality as prescribed. The O.E.A. Collector purported to exercise the power of review under Section “151 CPC” having formed an opinion that the proclamation was not properly done in accordance with the law as the order-sheet of the case did not disclose the manner of proclamation. The respondent No. 1 preferred an appeal before the Additional District Magistrate (Land Records) Puri, who formed an opinion that the O.E.A. Collector was not expressly conferred with any power of review but the order could be justified as one of recalling of an earlier order which had occasioned failure of justice. If the mandatory provisions of Section 8A(2) of the Act were not followed then the order dated 2.4.1966 was rendered a nullity. The learned ADM observed that the claim petition by respondent No. 1 was filed some time in 1963, i.e. beyond the prescribed period of six months. The learned ADM also observed that the claim preferred by the respondent No. 1 should have been treated as a lease case and not as a claim case. At the end, sustaining the setting aside of the order dated 2.4.1966 the learned ADM remanded the case to the O.E.A. Collector - cum - Additional Tahsildar for disposal afresh in the light of the observations made by him.

3. The respondent No. 1 preferred a petition under Article 226/227 of the Constitution before the High Court of Orissa. The petition has been allowed and the orders of O.E.A. Collector and the ADM have both been set aside by the High Court forming an opinion that the power to review as assumed by O.E.A. Collector did not exist and the circumstances of the case did not warrant the exercise of power to recall an earlier order passed by the O.E.A. Collector which was one passed within the jurisdiction of the O.E.A. Collector being set aside, more so when the averments made in the application seeking review/recall did not go beyond alleging an irregularity merely or at the worst an illegality. The aggrieved appellants, the 12 villagers who had sought for review/recall, have filed this appeal by special leave impugning the order of the High Court.

4. Having heard the learned counsel for the parties we are of the opinion that no fault can be found with the order of the High Court and the appeal therefore deserves to be dismissed.

5. The only provision for review in the Act is to be found in Section 38A whereunder a review may be sought for within one year from the date of the decision or order but only on the ground that there has been a clerical or arithmetical mistake in the course of any proceedings in the Act. It was also conceded by the learned counsel for the appellants that the proceedings initiated by the appellants were certainly not under Section 38A. It was also conceded at the bar that the subsequent action of the O.E.A. Collector could be sustained only if supportable by the power to recall.

6. What is a power to recall? Inherent power to recall its own order vesting

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1999 Supreme(SC) 612

Cases Referred (4)