The Allahabad High Court has explained the difference between a Recall Application and Review Application. The Judgment came in an Appeal preferred against the Order of Single Judge rejecting the application for recall/restoration.
In 1987 Naunihal Haidar was appointed as Lekhpal on a temporary basis. His engagement was extended from time to time and ultimately the services of the petitioner-appellant were dispensed within the year 1991.
Aggrieved by the Order, the petitioner-appellant challenged it before the High Court. The High Court stayed the operation and implementation of the Order.
Thereafter the services of the petitioner-appellant were regularized on 20.03.1999 with a condition that the same shall be subject to the final order passed in the said writ petition.
The said writ petition was dismissed for non-prosecution on 14.11.2008. Subsequent to the dismissal of the writ petition, the services of the petitioner were terminated on 15.01.2014.
A Restoration Application was filed by the petitioner-appellant for the restoration of the writ petition which was allowed vide order dated 08.12.2016 passed by a Single Judge.
The writ petition then remained pending for quite some time and then was listed on 26.10.2017 wherein on the statement of counsel appearing for the petitioner-appellant that the same has rendered infructuous by efflux of time, and subsequent developments, the same was dismissed accordingly.
In the meantime, since the services of the petitioner-appellant were terminated on 15.01.2014 he preferred another writ petition which was dismissed with an observation by a Single Judge that the remedy to the petitioner-appellant lay in moving the appropriate application in his earlier petition and to seek appropriate protection therein.
Consequent to the dismissal of the writ petition, the petitioner-appellant filed recall/restoration application.
The said recall/restoration application was decided by the Single Judge vide order dated 15.04.2019 rejecting the Application.
The Single Judge Rejected the Application on Following Grounds:
- Review Application has been filed by another counsel without giving any cogent reason as to why the review petitioner was not filed by the same counsel.
- Grounds taken in the review petition amounts to almost rehearing of the matter and states that some of the arguments advanced are such as were not raised earlier
Submission of Appellant in Appeal:
The application for recall/restoration was filed giving adequate reasons which was treated as an application for review and the learned Single Judge rejected it.
It is further argued that the learned Single Judge misread an application for recall/restoration and proceeded to decide it as review application. As such the judgment and order is totally based on non-existent fact and deserves to be set aside.
There is a Difference between “Review” and Recall”
A Division Bench of Hon’ble Justice Ramesh Sinha And Hon’ble Justice Samit Gopal held that
There is a marked difference between “recall” and “review.” As is apparent from the application titled as Civil Misc. recall/restoration application the same had been filed with a prayer to recall the order dated 26.10.2017 and to restore the writ petition to its original number. There is no prayer in the said application to review the order passed in the writ petition. Even the writ petition was dismissed on the ground that it has become infructuous by efflux of time and subsequent events but not on merits.
The Court referred to the Judgment of the Supreme Court in the case of Asit Kumar Kar Vs. State of West Bengal and others : (2009) 2 SCC 703 and Vishnu Agarwal Vs. State of Uttar Pradesh and another : (2011) 14 SCC 813, on this issue.
It was further observed that:
The learned Single Judge completely fell in error while deciding the application for recall/restoration application by treating it as an application for review. Prayer made in the said recall/restoration application is as has been quoted above just plain and simple for recalling of the order by which the petition was dismissed as infructuous and further the prayer that the writ petition be restored to its original number. There is no prayer whatsoever in the said application that the order be reviewed. Even further, the order sought to be recalled is not a judgment as the merits of the matter has not been touched at all. The petition was dismissed without going into the merits of the matter and without deciding the issues as raised therein. The application for recall and restoration is of an order which did not decide any issue raised between the parties in the writ petition.
If a party whose counsel under some misconception made a prayer for dismissing the writ petition as infructuous by efflux of time and by some subsequent events does not mean that the petition has been decided on merits. As a matter of fact, a rectification of the said order was prayed by means of the application for recall/restoration. Rectification of order stems from the fundamental principle that justice is above all. The writ petition of the petitioner continued to be pending before this Court from the year 1991 to 26.10.2017 for a good period of 26 years with an order in favour of the petitioner on the strength of which he continued to remain in service till 15.01.2014 on which date his services were terminated as the said writ petition was dismissed for non-prosecution on 14.11.2008. Even thereafter, the recall application filed by the petitioner-appellant along with the delay condonation application was allowed vide order dated 08.12.2016 and the writ petition was directed to be restored to its original number.
Consequently, the Appeal has been allowed and the review/recall application has also been allowed by restoring the Writ Petition to its original number.
Case NO. :- SPECIAL APPEAL No. – 861 of 2019
Title:- Naunihal Haidar vs Assistant Settlement Of Consolidation And 2 Others
Coram: Hon’ble Justice Ramesh Sinha And Hon’ble Justice Samit Gopal
Counsel for Appellant:- Hari Bhawan Pandey
Counsel for Respondent :- C.S.C.