Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 1372

SUPREME COURT OF INDIA
Sanjiv Khanna, Bela M. Trivedi, JJ.
Ganesh Patel – Appellant
Versus
Umakant Rajoria – Respondent
SLP (Crl.) No. 9313 of 2021
Decided On : 07-03-2022

Advocates appeared:
Mr. Prashant Shukla, Advocate, Anushree Shukla, Advocate, Mr. Mayank Goutam, Advocate, Mr. Ashu Bhindwar, Advocate, Mr. Divyesh Pratap Singh, Advocate, For the Appellant / Mr. Varinder Kumar Sharma, Advocate, For the Respondent.

The main legal point established is the distinction between recall and review, and the circumstances under which an order of recall can be passed.

Headnote:
Recall of Order - Procedural Review - The court upheld the recall of an ex parte judgment based on false information, emphasizing the difference between recall and review and the circumstances under which an order of recall can be passed.
Fact of the Case:

The petitioner filed multiple appeals and applications for condonation of delay, and eventually filed a petition under section 482 of the Code of Criminal Procedure, 1973, which was allowed ex parte. The respondent then filed an application for recall of the order, which was granted by the High Court.
Finding of the Court:

The court found that the application for recall of the order was maintainable as it sought a procedural review, not a substantive review, and the High Court was right in recalling the order and listing the case for hearing and decision on merits. The petitioner's appeal seeking special leave to appeal was dismissed, and the interim order was no longer in effect.
Issues: The issues involved the multiple appeals and applications filed by the petitioner, the ex parte judgment, and the subsequent application for recall of the order.
Ratio Decidendi: The court emphasized the difference between recall and review and clarified the circumstances under which an order of recall can be passed, citing relevant case law.
Final Decision: The petition seeking special leave to appeal was dismissed, the interim order was no longer in effect, and all pending applications were disposed of.

Judgement Key Points

Based on the provided legal document, here are the key points regarding the distinction between recall and review, the circumstances for passing a recall order, and the specific facts of the case:

Legal Distinction between Recall and Review The Supreme Court clarified that an application for recall is maintainable when it seeks a procedural review rather than a substantive review. Consequently, Section 362 of the Code of Criminal Procedure, 1973 (which bars substantive review after an order is passed) does not apply to such recall applications. (!)
Circumstances for Passing a Recall Order An order can be recalled if it was passed in the absence of a party (ex parte) based on false information or material facts that were concealed. In this instance, the High Court correctly recalled an ex parte judgment because the respondent demonstrated that the order was based on false information regarding a compromise deed, which the petitioner had actually disputed. (!)
Precedent Cited The Court relied on the principle established in Budhia Swain and Others v. Gopinath Deb and Others regarding the difference between recall and review and the specific circumstances under which a recall order is justified. (!)
Case Facts: The Compromise Deed Dispute The petitioner had previously relied on an alleged compromise deed dated 18.04.2016 before the High Court in CRR NO. 3100/2015, which was dismissed. The Supreme Court noted that the petitioner concealed the fact that the respondent had disputed and denied this deed in the current petition for special leave to appeal. (!)
History of Non-Compliance and Previous Dismissals Prior to the ex parte order, the appellant failed to comply with directions to surrender before the trial court on dates 07.12.2015 and 14.01.2016. The High Court had previously rejected the appellant's prayer for exemption from surrendering, leading to the dismissal of multiple appeals and applications for condonation of delay under the Limitation Act, 1963. (!)
Procedural History of the Ex Parte Order The petitioner filed Miscellaneous Criminal Case No. 6576 of 2017 under Section 482 CrPC, contending a compromise existed. This petition was allowed ex parte on 13.10.2017. The respondent subsequently filed an application for recall, asserting the order was based on false information, which the High Court granted on 23.10.2021. (!)
Final Ruling on the Appeal The Supreme Court dismissed the petition seeking special leave to appeal, upheld the High Court's decision to recall the order, and directed that the interim order passed by the Supreme Court would no longer operate. (!)

ORDER

1. We do not find any good ground or reason to interfere with the impugned order. In fact, we must observe that the petitioner has concealed in the petition for special leave to appeal that the alleged compromise deed dated 18.04.2016 has been disputed and denied by the respondent.

2. The compromise deed was also relied upon by the petitioner before the High Court in CRR NO. 3100/ 2015, which was dismissed vide order dated 18.02.2016. This order specifically records that on two previous dates, viz., 07.12.2015 and 14.01.2016, the appellant was directed to surrender before the trial court, but he had not done so.

3. The order dated 18.02.2016 was challenged before this court in Crl.M.P. No. 20184 of 2016, which was dismissed vide order dated 25.04.2017, as the appellant had not complied with the direction to surrender and file proof within four weeks. The prayer for exemption from surrendering was rejected.

4. The petitioner, had filed a criminal appeal along with an application for condonation of delay under section 5 of the Limitation Act, 1963, before the Sessions Court, Sagar. This application was dismissed vide order dated 23.09.2015. Resultantly, the criminal appeal was dismissed.

5. The petitioner filed another appeal and section 5 application for condonation of delay before the IInd ASJ, Sagar, which was dismissed vide order dated 30.03.2016.

6. Undeterred by the aforesaid orders, the petitioner filed Miscellaneous Criminal Case No. 6576 of 2017 before the High Court contending that there has been a compromise between him and the respondent. This petition under section 482 of the Code of Criminal Procedure, 1973, was allowed ex parte vide judgment dated 13.10.2017.

7. The respondent thereupon preferred an application for recall of the order dated 13.10.2017. The aforesaid order, it was stated, was passed in the absence of the respondent, and based on false information. The High Court recalled the order dated 13.10.2017 vide the impugned order dated 23.10.2021.

8. This application for recall of the order was maintainable as it was an application seeking a procedural review, and not a substantive review to which Section 362 of the Code of Criminal Procedure, 1973, would be attracted.[1] On the aspect of the difference between recall and review and when an order of recall can be passed reference can be made to Budhia Swain and Others v. Gopinath Deb and Others, 2 (1999) 4 SCC 396

[1] Grindlays Bank Ltd. v. Central Government Industrial Tribunal & Ors. 1980 (supp) SCC 420

9. The High Court was therefore right in recalling the order and listing MCRC No. 6576/2017 for hearing and decision on merits.

10. Rs. 25,000/- (Rupees Twenty Five Thousand Only) deposited by the petitioner in terms of the order dated 10.12.2021 would be paid to the respondent.

11. For the reasons stated above, the petition seeking special leave to appeal is dismissed and the interim order passed by us on 11th February, 2022 will no longer operate.

12. All pending applications stand disposed of.

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