manufacturing defect.= Defective Tiles were affixed on the Walls of building - liable to compensate = The appellant-Society is a charitable institution running a girls hostel at Surat for the benefit of Adiwasi children. On 02.02.2000, the appellant-Society purchased vitrified glazed floor tiles from respondent no.5 (since deleted from the array of parties vide Court’s order dated 01.04.2015) who was a local agent of respondent no.1-Company for a sum of Rs.4,69,579/-. The said tiles, after its fixation in the premises of the hostel, gradually developed black and white spots. The appellant no.1 wrote several letters to respondent no.4 i.e., Sales Executive of respondent no.1-company, informing about the inferior and defective quality of the tiles. Thereafter, the respondent no.5-local agent visited the spot but failed to solve the issue. An architect J.M. Vimawala was appointed by the appellant-Society to assess the damage caused due to defective tiles. The architect assessed the loss to the tune of Rs.4,27,712.37 which included price of the tiles, labour charges, octroi and transportation charges. = the appellant-Society is not a commercial establishment rather a registered society helping the adivasi students in their education by providing hostel facilities. The charges, if any, for accommodation in the hostel are for maintaining the hostel and not for making profit. Thus, the appellant-Society is consumer within the meaning of the term ‘consumer’ under Section 2(d) of the Consumer Protection Act, 1986.= The National Commission has reversed the order passed by the State Commission by wrongly applying the decision of M/s Kusumam Hotels Pvt. Ltd. case (supra) to the set of facts in the present case. Therefore, the concurrent finding of fact recorded by the District and the State Commission has been erroneously interfered with by the National Commission by passing the impugned order, which is liable to be set aside. For the reasons stated supra this appeal is allowed, the impugned order of the National Commission is hereby set aside and we restore the order of the District Forum which is affirmed by the State Commission. The matter has been under litigation for the last fourteen years, we direct the respondents to pay or deposit the amount so awarded by the District Forum along with interest @9% p.a. within six weeks from the date of receipt of the copy of this judgment. The costs of Rs.50,000/- of these proceedings are also awarded in favour of the appellant-Society.

NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 7223 OF 2016
                  (ARISING OUT OF SLP(C) NO. 36918 OF 2013)


  LOURDES SOCIETY SNEHANJALI GIRLS
  HOSTEL AND ANR.                         ……APPELLANTS

                                     Vs.

M/S H & R JOHNSON (INDIA) LTD. & ORS.  ……RESPONDENTS



                               J U D G M E N T


V.GOPALA GOWDA, J.

Leave granted.
This civil  appeal  by  special  leave  is  directed  against  the  impugned
judgment  and  order  dated  23.09.2013  passed  by  the  National  Consumer
Disputes Redressal Commission, New Delhi in Revision Petition  No.  4047  of
2006 whereby it has allowed the revision petition filed by  respondent  nos.
1-4 and set aside the order dated 12.10.2006 passed  by  the  Gujarat  State
Consumer Disputes Redressal Commission,  Ahemdabad  in  Appeal  No.  741  of
2006.
The brief facts of the case in nutshell are as under:-
The appellant no.1-Lourdes Society Snehanjali  Girls  Hostel  is  a  society
registered under the Societies Registration Act  vide  society  registration
no.Guj/525/Surat and also a trust registered, vide  its  Trust  registration
no. F/430/Surat. The appellant-Society is a charitable  institution  running
a girls hostel at Surat for the benefit of Adiwasi children. On  02.02.2000,
the  appellant-Society  purchased  vitrified   glazed   floor   tiles   from
respondent no.5 (since deleted from the array of parties vide Court’s  order
dated 01.04.2015) who was a local agent of  respondent  no.1-Company  for  a
sum of Rs.4,69,579/-. The said tiles, after its fixation in the premises  of
the hostel, gradually developed black and white spots.  The  appellant  no.1
wrote  several  letters  to  respondent  no.4  i.e.,  Sales   Executive   of
respondent no.1-company, informing about the inferior and defective  quality
of the tiles. Thereafter, the respondent no.5-local agent visited  the  spot
but failed to solve the issue.
An architect J.M. Vimawala was appointed by the appellant-Society to  assess
the damage caused due to defective tiles. The architect  assessed  the  loss
to the tune of Rs.4,27,712.37 which included  price  of  the  tiles,  labour
charges, octroi  and  transportation  charges.  Thereafter,  the  appellant-
Society served a legal notice dated 12.08.2002 to the respondents  making  a
demand of the said amount but no response was shown by the respondents.
The said inaction on the part of the respondents made the  appellant-Society
to file a Consumer Complaint No. 743 of 2002 against the respondents  before
the District Consumer Disputes Redressal Forum  at  Surat  (for  short  “the
District Forum”) for claim of the said amount.
The District Forum appointed a Court Commissioner to examine  and  find  out
the manufacturing defects in the tiles as claimed by the  appellant-Society.
After  examination,  the  Court  Commissioner  submitted  a   report   dated
21.09.2004 stating therein that the tiles were having manufacturing defect.
The District Forum vide its order  dated  31.12.2005  held  that  the  tiles
supplied by  the  respondents  had  manufacturing  defect.  The  respondents
committed an unfair trade practice by supplying  such  defective  tiles.  By
holding the respondents jointly and severally  liable,  the  District  Forum
directed the respondents to pay to the appellants  a  sum  of  Rs.2,00,000/-
along with interest @9% p.a. from the date  of  complaint  i.e.,  31.10.2002
till its recovery. The respondent no.1 was directed to pay the above  amount
to the appellant within a period of 30 days from the date of  order  of  the
District Forum.
Being Aggrieved, the respondents filed First Appeal No. 741 of  2006  before
Gujarat State Consumer Dispute Redressal Commission,  Ahmedabad  (for  short
“the State Commission”) challenging the said order of District Forum  urging
various grounds.
The State Commission dismissed the said First Appeal of the  respondents  by
its order dated 12.10.2006 and confirmed the order passed  by  the  District
Forum.
Having become unsuccessful before  the  State  Commission,  the  respondents
filed Revision Petition No.  4047  of  2006  before  the  National  Consumer
Disputes Redressal Commission, New Delhi (hereinafter referred  to  as  “the
National Commission”) questioning the validity and correctness of the  order
passed by the District Forum and the State Commission.
On 12.03.2012, the appellant-Society also made  an  application  being  I.A.
No.1847 of 2013 in Revision Petition  No.  4047  of  2006  to  the  National
Commission for invoking the powers under Sections 14(d) and  14(hb)  of  the
Consumer  Protection  Act,  1986  and  for  awarding  sufficient  amount  of
compensation in addition to amount already awarded by the District Forum.
The National  Commission  vide  its  order  dated  23.09.2013  reversed  the
findings of the District Forum and the State  Commission  holding  that  the
appellant-Society has failed to establish that it is a consumer  within  the
meaning of Section 2(d) of the Consumer Protection Act, 1986.
In support of their case, the learned counsel appearing on  behalf  of  both
the parties made the following submissions.
Mr. Ashok Panigrahi, the learned counsel on behalf of the  appellant-Society
contended  that  the  National  Commission  has  erred  in  coming  to   the
conclusion that the appellant-Society  is  a  commercial  establishment  and
thus, not covered by the definition of the  term  ‘consumer’  under  Section
2(d) of the Consumer Protection Act, 1986. It was further submitted  by  him
that it is unjustified on the part of the National Commission to  hold  that
the Memorandum of Association and byelaws  of  the  appellant-society  which
show  that  it  is  a  charitable  institution  and   not   any   commercial
establishment were not filed before the District  Forum  but  filed  at  the
stage of Revision before the National Commission. It was  further  submitted
by the learned counsel that the District  Forum  and  the  State  Commission
have  gone  through  the  registration   certificate   and   Memorandum   of
Association of the appellant-Society.
He further submitted that the National Commission has erred in holding  that
the case M/s Kusumam Hotels  Pvt.  Ltd.  v.  M/s  Neycer  India  Ltd.[1]  is
applicable to the facts and circumstances of the present case.
It was further contended by him that both the District Forum as well as  the
State Commission have held that the appellant-Society cannot be regarded  as
a commercial establishment. It is completely unjustified on the part of  the
National Commission to hold that the appellant-Society  being  a  commercial
establishment is not a consumer within the meaning of  the  term  ‘consumer’
under Section  2(d)  of  the  Consumer  Protection  Act,  1986  in  complete
ignorance of the Memorandum of Association and the byelaws of the appellant-
Society.
On the contrary, Mr. Sudhir K. Makkar, the learned counsel on behalf of  the
respondents sought to  justify  the  impugned  judgment  and  order  of  the
National Commission contending that the same is  based  on  sound  reasoning
without error and therefore, the same need not be interfered  with  by  this
Court.
It is further contended by  him  that  the  District  Forum  and  the  State
Commission have erred in relying on the report  dated  21.09.2004  given  by
the Court Commissioner as his qualification was not stated  in  the  report.
The report was based on visual inspection. Further, both the District  Forum
as well as the State Commission have  erred  in  not  considering  the  test
certificate produced by respondent no.1 as the  same  was  based  on  modern
tile testing  technology  in  its  laboratory.  In  the  absence  of  expert
evidence, it was wrong on the part of the District  Forum  as  well  as  the
State Commission to hold that tiles had manufacturing defect.
After hearing the learned counsel for  both  the  parties  we  come  to  the
following conclusion:
The National Commission has exceeded  its  jurisdiction  in  exercising  its
revisional power under Section 21(b) of the Consumer  Protection  Act,  1986
by setting aside the concurrent  finding  of  fact  recorded  by  the  State
Commission in  First  Appeal  No.  741  of  2006  vide  its  judgment  dated
12.10.2006 wherein the finding of fact recorded by the  District  Forum  was
affirmed.
The facts of the instant case clearly reveal that  the  National  Commission
has  erred  in  observing  that  the  appellant-Society  is   a   commercial
establishment by completely  ignoring  the  Memorandum  of  Association  and
byelaws of the appellant-Society. Both the District Forum  as  well  as  the
State  Commission  have  rightly  held  that  the  appellant-Society  is   a
charitable institution and not a commercial entity. The relevant portion  of
the order passed by the District Forum reads thus:
“6. ……It is not in dispute that complainants are  running  girls  hostel  in
the name of Complainant no.1. Commercial purpose  is  also  explained  under
the provisions of the Act. So far as  activities  of  the  complainants  are
concerned,  they  are  running  girls  hostel  and  receive  fees  from  the
students. The complainants  are  not  carrying  out  commercial  activities.
Purchase of goods namely tiles are for the purpose of their  hostel  and  it
cannot be said that tiles is subject matter of their business. Whenever  any
person purchases goods for carrying  out  business  for  commercial  or  for
livelihood then only question regarding purchase of goods  or  availing  any
activities from trader or professional  arises.  The  complainants  are  not
carrying on business of  purchase  from  opponents.  Otherwise  also  hostel
premises can  be  constructed  and  there  is  no  direct  relation  between
commercial activity. Therefore, the defence of opponents  that  complainants
are carrying  on  business  activities  and  thereby  complainants  are  not
consumer is not acceptable. Hence, we hold that  complainants  are  consumer
of opponents and defence of opponents is rejected.”
                         (emphasis supplied)

The National Commission has erred by applying the decision  in  M/s  Kusumam
Hotels Pvt. Ltd. case (supra) in holding that the appellant-Society  is  not
a consumer in terms of the definition under Section  2(d)  of  the  Consumer
Protection Act, 1986 as the purchase of tiles and laying in the same in  the
rooms of the girl’s hostel run by the appellant-Society is clearly  not  for
any commercial purpose. The decision in M/s Kusumam Hotels  Pvt.  Ltd.  case
(supra) has no application to the present  fact  situation  for  the  reason
that in the said case complainant was a hotel and  the  tiles  purchased  by
the hotel were for commercial purpose as the  hotel  business  involves  the
act of profit making, whereas in the  instant  case  the  girl’s  hostel  in
question  is  run  by  the  appellant-Society  as  one  among  its   various
charitable activities for the benefit of adivasi  students.  The  appellant-
Society is supporting adivasi/tribal girls  to  pursue  their  education  by
providing hostel facilities. The expenses for the food and  electricity  are
being  paid  by  the  inmates  of  the  hostel.  The  appellant-Society   is
maintaining the hostel free of cost and no charges  in  the  form  of  rent,
repairs and maintenance are collected from the inmates. Thus, the appellant-
Society cannot be considered as any commercial  establishment  striving  for
profit.
Further, the National  Commission  while  passing  the  impugned  order  has
ignored certain facts which throws light on callous attitude on the part  of
the respondents viz., when the defect in  the  tiles  were  brought  to  the
notice of the respondents by sending various letters, there  was  no  action
on their part. Later a local agent on behalf of the respondent  no.1-Company
visited the premises of the girl’s hostel and verified that the  said  tiles
were defective and damaged. However, no proper attention  was  paid  by  the
respondents towards the issue. Further, to assess the damage caused  to  the
appellant-Society by the use of  the  said  defective  tiles,  a  registered
architect and interior designer, J.M. Vimawala was hired by  the  appellant-
Society, who in his report declared the tiles to be defective  and  assessed
the  damage  to  the  appellant-Society  to  the  tune  of   Rs.4,27,712.37.
Thereafter, the appellant-Society made  a  demand  of  the  said  amount  as
damages from the respondents vide legal notice  dated  12.08.2002.  But  the
respondents did not pay any heed to the said  notice  as  well.  Because  of
such irresponsible and indifferent attitude on the part of the  respondents,
the appellant-Society was compelled to file Consumer Complaint  No.  743  of
2002 before the District Forum.
The District Forum, after appreciating the pleadings and evidence on  record
has rightly awarded Rs. 2 lakhs as damages to the appellant-Society  towards
defective tiles supplied by the respondents along with compensation  towards
mental harassment and cost of present proceedings  with  interest  @9%  p.a.
from the date of  complaint  till  its  recovery.  In  concurring  with  the
findings of the District Forum,  the  State  Commission,  after  proper  re-
appreciation of the facts and evidence on record has rightly  exercised  its
jurisdiction by dismissing the  appeal  of  the  respondents.  The  National
Commission should not have interfered with the concurrent findings  of  fact
recorded in the judgment impugned before it particularly  having  regard  to
the nature of the jurisdiction conferred  upon  it  by  Section  21  of  the
Consumer Protection Act, 1986. Section 21 of the aforesaid Act reads thus:
“21.  Jurisdiction  of  the  National  Commission.—Subject  to   the   other
provisions of this Act, the National Commission shall have jurisdiction—
(a) to entertain—
(i) complaints where the value of the goods or  services  and  compensation,
if any, claimed exceeds rupees one crore; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass  appropriate  orders  in  any  consumer
dispute which is pending before or has been decided by any State  Commission
where it appears to the National Commission that such State  Commission  has
exercised a jurisdiction not vested in it by law, or has failed to  exercise
a jurisdiction so vested, or has acted in the exercise of  its  jurisdiction
illegally or with material irregularity.”

The National Commission has to exercise the jurisdiction vested in  it  only
if the State Commission or the District Forum has either failed to  exercise
their jurisdiction or exercised when the same was  not  vested  in  them  or
exceeded  their  jurisdiction  by  acting   illegally   or   with   material
irregularity. In the instant case, the  National  Commission  has  certainly
exceeded its jurisdiction by setting aside the concurrent  finding  of  fact
recorded in the order passed by the State Commission  which  is  based  upon
valid and cogent reasons. The National Commission  has  reversed  the  order
passed by the State Commission by  wrongly  applying  the  decision  of  M/s
Kusumam Hotels Pvt. Ltd. case (supra) to the set of  facts  in  the  present
case. In the said case, the complainant was a hotel, it  was  considered  to
be a commercial entity and therefore, it was kept out of the purview of  the
definition of ‘consumer’ under Section 2(d) of the Consumer Protection  Act,
1986. However, the National Commission has failed  to  appreciate  the  fact
that in  the  present  case,  the  appellant-Society  is  not  a  commercial
establishment rather a registered society helping the  adivasi  students  in
their education by providing hostel facilities. The  charges,  if  any,  for
accommodation in the hostel are for  maintaining  the  hostel  and  not  for
making profit. Thus, the appellant-Society is consumer  within  the  meaning
of the term ‘consumer’ under Section 2(d) of the  Consumer  Protection  Act,
1986. The National Commission has erroneously accepted the contention  urged
on behalf of the respondents in the revisional proceedings  that  supply  of
tiles to the appellant-Society by respondent no. 1 through its  local  agent
is for commercial purpose. The said finding is based on the decision in  M/s
Kusumam Hotels  Pvt.  Ltd.  case  (supra),  which  case  absolutely  has  no
application to the fact situation.
Therefore, the concurrent finding of fact recorded by the District  and  the
State Commission has  been  erroneously  interfered  with  by  the  National
Commission by passing the impugned order, which is liable to be  set  aside.
For  the  aforesaid  reasons,  the  appeal  of  the  appellant-Society  must
succeed.
For the reasons stated supra this appeal is allowed, the impugned  order  of
the National Commission is hereby set aside and we restore the order of  the
District Forum which is affirmed by the State  Commission.  The  matter  has
been  under  litigation  for  the  last  fourteen  years,  we   direct   the
respondents to pay or deposit the amount so awarded by  the  District  Forum
along with interest @9% p.a. within six weeks from the date  of  receipt  of
the copy of this judgment. The costs of  Rs.50,000/-  of  these  proceedings
are also awarded in favour of the appellant-Society.


……………………………………………………………CJI
[T.S. THAKUR]


………………………………………………………………J.
[V. GOPALA GOWDA]


                                     ………………………………………………………………J.
[R. BANUMATHI]


New Delhi,
2nd August, 2016
-----------------------
[1]     III (1993) CPJ 333 (NC)

whether the suit filed by the appellant Madina Begum was barred by limitation in terms of the first part of Article 54 of Schedule 1 of the Limitation Act, 1963 = the agreement between Gulab Bai and Madina Begum did not specify a calendar date as the date fixed for the performance of the agreement. Consequently, the view expressed in Ahmadsahab Abdul Mulla and Rathnavathi on the first part of Article 54 clearly applies to the facts of the case. In taking a contrary view, ignoring the absence of a specified date for the performance of the agreement and reversing the Trial Court, the High Court has fallen in error.; whether the High Court was right in merely deciding the issue of limitation in a first appeal filed under Section 96 of the Code of Civil Procedure without going into the merits of the case. Quite recently, in Vinod Kumar v. Gangadhar[3] this Court had occasion to consider the issue whether, under Section 96 of the Code of Civil Procedure, the first appellate court ought to decide all the issues before it or not.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 6687 OF 2016

Madina Begum & Anr.                           .…Appellants
  versus
Shiv Murti Prasad Pandey & Ors.                   .…Respondents

                               J U D G M E N T
Madan B. Lokur, J.
1.     The two questions for our consideration are whether  the  suit  filed
by the appellant Madina Begum was barred  by  limitation  in  terms  of  the
first part of Article 54 of Schedule 1  of  the  Limitation  Act,  1963  and
whether the High Court ought to have  decided  the  first  appeal  filed  by
Madina Begum not only on the preliminary issue of  limitation  but  also  on
all other issues.  As far as the first question is concerned our  answer  is
in the negative and as far as the  second  question  is  concerned,  in  our
opinion, the High Court ought to have  considered  all  the  issues  in  the
first appeal rather than only the preliminary issue of limitation.
2.     The land in dispute in this appeal  is  1.63  acres  of  agricultural
land bearing khasra nos. 438, 439,  440  and  456  (total  area  being  2.13
acres) in Patwari Halka No. 26 Gram Amkhera, Tehsil and District Jabalpur.
3.     There was a dispute about the title of the entire aforesaid land  and
to resolve that  dispute,  Gulab  Bai  claiming  to  be  the  owner  and  in
possession of the entire land, filed Suit No. 479A of 1994 in the  Court  of
the Additional District Judge in Jabalpur.  The defendants in the suit  were
Amar Singh and Jaswant Singh.  The prayer made by Gulab Bai  in  her  plaint
was for a declaration with regard to her title  and  possession.   She  also
prayed for an injunction restraining the defendants Amar Singh  and  Jaswant
Singh from interfering with her possession.
4.     On 2nd August, 2001 the suit was decreed in favour of Gulab  Bai  and
thereafter on 3rd September, 2001 she entered  into  an  agreement  to  sell
1.63 acres of agricultural  land  being  the  disputed  property  to  Madina
Begum.  The consideration for the sale was Rs. 4,89,000/- out  of  which  an
advance of Rs. 1,25,000/- was paid by Madina Begum to Gulab Bai.  This  fact
is recorded in the agreement to sell.
5.     What we are concerned with in this appeal is  the  interpretation  of
Clause 3 of the agreement to sell which reads as follows:-

“3 That Party no. 1 has sold 1.63 acres land at the rate of  Rs.  3,00,000/-
(Rs. Three lakh) per acre and  Party  no.  1  Gulab  Bai  has  obtained  Rs.
1,25,000/- (One lakh twenty five thousand) as  advance.   The  rest  of  the
amount of Rs. 3,64,000/- (Rs. Three lakh sixty four thousand) would be  paid
by Party no. 2 to Party no. 1 within the period  of  six  months  from  this
date and having received it the party no. 1 will execute Benama Registry  in
favour of Party no. 2 or any such person specified by party  no.  2  in  one
part or many parts.”

6.     Apparently on coming to know that Gulab Bai had agreed  to  sell  the
disputed land to Madina Begum an appeal being F.A. No.399 of 2001 was  filed
by Amar Singh and  Jaswant  Singh  in  the  High  Court  of  Madhya  Pradesh
challenging the decree dated  2nd  August,  2001.   An  interim  application
under Order XXXIX Rules 1 and 2 of the Code of  Civil  Procedure  was  filed
along with the appeal. The application was taken  up  for  consideration  on
22nd September, 2001 and while issuing notice  in  the  application  it  was
directed as follows:-
“In the meanwhile till the disposal of M(C) P.  No.  3231/2001,  status  quo
regarding possession over the suit property  shall  be  maintained  and  the
respondent shall not alienate the suit property.”

7.     On  16th  November,  2001  Gulab  Bai  executed  a  Will  (which  was
registered) in which she categorically mentioned  that  she  had  negotiated
the sale of 1.63 acres of land to Madina  Begum  and  had  given  possession
thereof to her but  the  remaining  amount  and  registration  of  the  sale
remained to be completed.  In her  Will,  Gulab  Bai  appointed  Shiv  Murti
Prasad Pandey  and  Devendra  Prasad  Pandey  (respondents  herein)  as  her
executors.  The Will mentioned that upon her demise, her  agricultural  land
except 1.63 acres will devolve on Shiv  Murti  Prasad  Pandey  and  Devendra
Prasad Pandey and in the event of her death before the registration  of  the
sale deed it would be their responsibility to execute and register the  sale
deed in favour of Madina Begum. Unfortunately, Gulab Bai passed away on  2nd
January, 2002.
8.     Thereafter, F.A. No. 399 of 2001 filed  by  Amar  Singh  and  Jaswant
Singh was heard by  the  High  Court  and  came  to  be  dismissed  on  28th
September, 2006.  We are told that the decree passed by the High  Court  has
attained finality.
9.     Upon the dismissal of the aforesaid appeal, it  appears  that  Madina
Begum required Shiv Murti  Prasad  Pandey  and  Devendra  Prasad  Pandey  to
execute the sale deed but apparently they did not take  any  steps  in  this
regard.  On the contrary, it appears that on or about 2nd August,  2008  the
land in dispute was mutated in the name of Anita Jain  pursuant  to  a  sale
made in her favour by Shiv Murti Prasad Pandey and Devendra Prasad Pandey.
10. When Madina Begum came to know of the transfer  of  the  disputed  land,
she sent a notice to Shiv Murti Prasad Pandey and Devendra Prasad Pandey  on
13th August, 2008 calling upon them to execute the sale  deed  in  terms  of
the agreement to sell dated 3rd September, 2001 and  the  Will  executed  by
Gulab Bai on 16th November, 2001.  The notice was replied to by  Shiv  Murti
Prasad Pandey and Devendra Prasad Pandey and we are told that they  declined
to execute the sale deed.  This led to Madina Begum  filing  a  suit,  inter
alia, for specific performance of the agreement being Suit No. 17A  of  2008
(perhaps renumbered later as 41A of 2010) in the  Court  of  the  Additional
District Judge, Jabalpur.
11. The defendants in the suit namely Shiv Murti Prasad Pandey and  Devendra
Prasad Pandey and Anita Jain filed their written statement and  one  of  the
contentions raised was that the suit was barred by  limitation  having  been
instituted more than three years beyond the date specified in the  agreement
to sell dated 3rd September, 2001. It was also submitted that  Madina  Begum
had given an advance of only Rs. 90,000/- which had since been  returned  to
her and that on 19th November, 2001 the agreement to sell between Gulab  Bai
and Madina Begum was cancelled.
12. On the pleadings, one of the issues framed by the Trial Court was  issue
No. 8: Whether the suit is time barred?
13. The Trial Court considered the issue whether the suit  filed  by  Madina
Begum was barred by time and answered it in the negative.  It  was  held  in
paragraph 38 of the decision rendered on 1st February, 2011 as follows:-

“38. On perusal of the record it is gathered  that  agreement  Ex.  P-1  was
executed on 03.09.2001 and thereafter stay has been granted by Hon’ble  High
Court in first appeal  on  22.09.2001  but  the  first  appeal  was  finally
decided on 28.09.2006 vide Ex. P-5  since  it  was  dismissed  and  in  this
manner, the stay order had become ineffective  on  28.09.2006.   Thereafter,
the plaintiffs have sent notice to the defendants in August 2008 i.e.  after
two years from the date of decision in the first appeal which was  dismissed
on 28.09.2006 which was  done  within  prescribed  period  of  three  years.
Therefore, it cannot be said that the plaintiffs had filed the  suit  beyond
the period of limitation with  a  view  to  harass  the  defendants.   Thus,
issues No. 8 and 9 are being answered against the defendants.”

14. Even though the issue of limitation was decided in her favour, the  suit
filed by Madina Begum was dismissed on  merits.  Feeling  aggrieved  by  the
dismissal of the suit on merits Madina Begum preferred First Appeal No.  175
of 2011 in the High Court of Madhya Pradesh and that  led  to  the  impugned
judgment and order dated 16th August, 2013.  The Division Bench hearing  the
appeal did not go into the merits of the dispute  between  the  parties  but
only adverted to the issue of limitation and since it  was  found  that  the
institution of the suit was barred by time (contrary to  the  conclusion  of
the Trial Court) there was no necessity of considering  the  merits  of  the
case.
15. In coming to the conclusion that the suit was barred by time,  the  High
Court considered Article 54 of Schedule 1 of the Limitation Act,  1963  (for
short, “the Act”).  The  discussion  thereon  was  brief  and  it  reads  as
follows:-

    “Under Article 54 of  the  Limitation  Act,  the  prescribed  period  of
limitation for filing a suit of specific performance of a contract is  three
years and the period of three years  has  to  be  calculated  based  on  two
contingencies i.e. the date fixed for performance of the contract or  if  no
such date is fixed, the date when the plaintiffs had  notice  about  refusal
of the performance by the defendants.  In this case, admittedly, a date  for
performance is fixed i.e. six months from  the  date  of  execution  of  the
contract and, therefore, as a specific period for performance is fixed,  the
period of limitation would be three years w.e.f.  3.03.2002  i.e.  the  date
when the period of six months for execution of the sale-deed lapsed.”

16. The High Court held that since the suit was barred  by  limitation,  the
Trial Court committed a grave error in recording a  finding  that  the  suit
was within limitation.
17. The interpretation of the first part of Article 54 of Schedule 1 of  the
Act is no longer res-integra. Article 54 reads as follows:-
|“54. |For specific performance of |Three years|The date fixed for the |
|     |a                           |           |performance, or, if no |
|     |contract                    |           |such date is fixed,    |
|     |                            |           |when the plaintiff has |
|     |                            |           |notice that performance|
|     |                            |           |is refused.”           |


18. In Ahmadsahab  Abdul  Mulla  (2)  (Dead)  v.  Bibijan  and  Ors.[1]  the
following question was considered by a three  judge  Bench  of  this  Court:
“Whether the use of  the  expression  “date”  used  in  Article  54  of  the
Schedule to the Limitation Act, 1963 (in short “the Act”) is  suggestive  of
a specific date in the calendar?”
19. While answering this question on a reference made  to  the  three  judge
Bench, this Court considered the meaning of  the  word  “date”  and  “fixed”
appearing in Article 54.  Upon such consideration, this Court held that  the
expression “date fixed for the performance” is a crystallized notion.   When
a date is fixed it means  there  is  a  definite  date  fixed  for  doing  a
particular act.   Therefore,  there  is  no  question  of  finding  out  the
intention from other circumstances.  It was reiterated that  the  expression
“date” is definitely  suggestive  of  a  specified  date  in  the  calendar.
Paragraphs 11 and 12 of the Report in this  regard  are  of  importance  and
they read as follows:-

“11. The inevitable conclusion is that the expression “date  fixed  for  the
performance” is a crystallized notion.  This is clear  from  the  fact  that
the second part “time from which period begins to  run”  refers  to  a  case
where no such date is fixed.  To put it differently, when date is  fixed  it
means that there is a definite date fixed for doing a particular act.   Even
in the second part the stress is on “when  the  plaintiff  has  notice  that
performance is refused”.  Here again, there is a  definite  point  of  time,
when the plaintiff notices the refusal.  In that sense both the parts  refer
to definite dates.  So, there is no question of  finding  out  an  intention
from other circumstances.

12. Whether the date  was  fixed  or  not  the  plaintiff  had  notice  that
performance is refused and the date  thereof  are  to  be  established  with
reference  to  materials  and  evidence  to  be  brought  on  record.    The
expression “date” used in Article 54 of the Schedule to the  Act  definitely
is suggestive of a specified date in the calendar.  We answer the  reference
accordingly.  The matter shall now be placed before the Division  Bench  for
deciding the issue on merits.”

20.    Quite independently and without reference to the aforesaid  decision,
another  Bench  of  this  Court  in  Rathnavathi  and  Another   v.   Kavita
Ganashamdas[2] came to the same conclusion.  It was held in paragraph 42  of
the Report that a mere reading of Article 54 would show that if the date  is
fixed for the performance of an  agreement,  then  non-compliance  with  the
agreement on the date would give a cause  of  action  to  file  a  suit  for
specific performance within three years from the date so  fixed.   But  when
no such date is fixed, the limitation of three years would  begin  when  the
plaintiff has notice that the defendant has refused the performance  of  the
agreement.  It was further held, on the facts of the case that  it  did  not
fall in the first category of Article 54 since no  date  was  fixed  in  the
agreement for its performance.
21.    The Clauses of the agreement for consideration  in  Rathnavathi  were
Clauses 2 and 3 and they read as follows:-

 “2. The purchaser shall pay a sum of  Rs.  50,000  (Rupees  fifty  thousand
only) as advance to the seller at the time of signing  this  agreement,  the
receipt of which  the  seller  hereby  acknowledges  and  the  balance  sale
consideration amount shall be paid within 60 days from the  date  of  expiry
of lease period.
3.  The seller covenants with the purchaser that efforts will be  made  with
the Bangalore  Development  Authority  for  the  transfer  of  the  schedule
property in favour of the purchaser after paying penalty.   In  case  it  is
not possible then the time stipulated herein for  the  balance  payment  and
completion of the sale transaction  will  be  agreed  mutually  between  the
parties.”

22.    As far as the present appeal  is  concerned,  the  agreement  between
Gulab Bai and Madina Begum did not specify  a  calendar  date  as  the  date
fixed  for  the  performance  of  the  agreement.  Consequently,  the   view
expressed in Ahmadsahab Abdul Mulla and Rathnavathi on  the  first  part  of
Article 54 clearly applies to the facts of the case. In  taking  a  contrary
view, ignoring the absence of a specified date for the  performance  of  the
agreement and reversing the Trial  Court,  the  High  Court  has  fallen  in
error.
23. It is not necessary for  us  to  multiply  authorities  on  the  subject
particularly when the issue has been conclusively  settled  by  a  Bench  of
three learned judges of this Court in Ahmadsahab Abdul Mulla and we  see  no
reason to take a different view.
24. The second question that requires  consideration  is  whether  the  High
Court was right in merely deciding  the  issue  of  limitation  in  a  first
appeal filed under Section 96 of the Code of Civil Procedure  without  going
into  the  merits  of  the  case.   Quite  recently,  in  Vinod   Kumar   v.
Gangadhar[3] this Court had occasion to consider the  issue  whether,  under
Section 96 of the Code of Civil Procedure, the first appellate  court  ought
to decide all the issues before it or not.  Reference was  made  to  a  very
large number of decisions rendered by  this  Court  and  it  was  concluded,
particularly relying upon Madhukar v.  Sangram[4]  decided  by  a  Bench  of
three learned judges of this Court that sitting as a court of  first  appeal
it is the duty of the High Court to deal with all the  issues  and  evidence
led by the parties before recording its findings.
25. In so far as the present  appeal  is  concerned,  the  High  Court  only
considered the issue of limitation and did not consider the other issues  in
the appeal. This was impermissible. The result  is  that  since  we  do  not
agree with the view taken by the High Court  on  the  issue  of  limitation,
there is no option but to set aside the view expressed  by  the  High  Court
and following the decisions of this Court, remand the  matter  to  the  High
Court to decide the  remaining  issues  in  the  first  appeal  filed  under
Section 96 of the Code of Civil Procedure.
26. It is a little unfortunate that the  parties  have  to  undergo  another
round of litigation which could easily have  been  avoided  if  the  settled
legal principles laid down by this Court from time to time were followed  in
regard to the requirements of Section 96 of the  Code  of  Civil  Procedure.
This is quite apart from the delay caused in the resolution of  the  dispute
between the parties.
27. In view of our discussion,  the  appeal  is  allowed  and  the  impugned
judgment and order of the High Court dated 16th August, 2013  is  set  aside
and the matter is remanded to the High  Court  for  deciding  the  remaining
issues in the appeal on merits.


      ...………………….J                                                 (Madan B.
                                                                      Lokur)



                                                                 ..………………….J

New     Delhi;                                                         (R.K.
Agrawal)
August 1, 2016
-----------------------
[1]  (2009) 5 SCC 462
[2]  (2015) 5 SCC 223
[3]  (2015) 1 SCC 391
[4]  (2001) 4 SCC 756

restoration of such petition, which has been dismissed in default in exercise of powers under section 482 of the code of criminal procedure with a view to secure the ends of justice and I am also in respectful agreement with the views expressed by the various High Courts in the aforesaid decisions. Therefore, I am of the view that if any petition has been dismissed in default and the application for recall is made, then it will not come within the meaning of words 'alter' or 'review' as expressed in Section 362 of the Code. Accordingly, such orders may be recalled or set aside provided the intention of the parties is bonafide i.e. party who has moved the application for recall or restoration is not unnecessary lingering on the proceedings malafidely or that interim order or stay order, if any, is not being misused. Accordingly, the application for restoration or recall of the order is maintainable and the prohibition of Section 362 Cr.P.C. do not apply in the petitions, which have been dismissed in default without discussing the merits of the case because it do not come within the prohibition of 'alter' or 'review' of judgment, which has entirely a different meaning. In the present case, the petition was dismissed for want of prosecution because the counsel for the petitioner could not appear due to sudden illness for which the learned counsel for the CBI also has raised no objection. Accordingly, the application for recall is allowed.

eLegalix - Allahabad High Court Judgment Information System (Judgment/Order in Text Format)

---

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

AFR
Court No. - 25

Case :- U/S 482/378/407 No. - 1994 of 2011

Applicant :- Jawahar Lal @ Jawahar Lal Jalaj
Opposite Party :- The State Of U.P Thru Cbi/Acb Lucknow
Counsel for Applicant :- Nandit Srivastava,Kuldeep Srivastava
Counsel for Opposite Party :- Bireshwar Nath

Hon'ble Aditya Nath Mittal,J.
Crl. Misc. Application No.51760 of 2015 - Application for Restoration of the Petition and the Recall of the order dated 29.04.2015.
Heard learned counsel for the applicant-petitioner, learned AGA as well as learned counsel appearing on behalf of the CBI and perused the pleadings.
This application for recall of the order dated 29.04.2015 has been filed with the prayer to restore the Criminal Misc. Case No.1994 of 2011 (U/s 482 Cr.P.C.) (Jawahar Lal @ Jawahar Lal Jalaj vs. The State Of U.P Thru CBI/ACB Lucknow) at its original number and status.
Learned counsel for the applicant has submitted that on 29.04.2015 the counsel for the petitioner all of sudden around 11.30 am developed heaviness and restlessness and rushed to the High Court Dispensary where his blood-pressure was found to be 160/110, upon which the doctor advised him for complete rest and due to this reason, he could not attend the court and could not mention for adjournment of the case, consequently, the petition was dismissed for want of prosecution. In support of this contentions, learned counsel for the petitioner has relied upon the various judgements, which shall be taken into consideration later on.
It has also been submitted that although, there is no provision in the Code of Criminal Procedure for restoration of a criminal case like Order IX of the CPC. It has further been submitted that Section 362 Cr.P.C. prohibits the court to alter or review the judgement but if any case is dismissed in default, it cannot be said to be a judgement. Therefore, the bar of Section 362 Cr.P.C. is not applicable. It has also been submitted that where the party to the proceedings is deprived of being heard and if in the interest of justice, opportunity of hearing is expedient than such opportunity must be given. It has also been submitted that if there is no provision in the Cr.P.C. for restoration of a petition unlike Order IX of CPC then there is no restriction in the Cr.P.C. to recall and set aside such order, which has been passed in absence of the petitioner.
Learned counsel appearing for the CBI has not raised any objection to the state of health of the counsel for petitioner on 29.04.2015 and has also conceded that if any petition is dismissed for default, then it is neither a judgement in view of Section 353 and 465. He has further submitted that the court can exercise its inherent power to restore such petition. It has also been submitted that if any judgement has been passed without application of mind or where no reasons have been assigned or where it has been dismissed in default, such order can be set aside exercising the powers under section 482 Cr.P.C.
The main question for consideration is that whether a petition under section 482 Cr.P.C., which has been dismissed for want of prosecution can be restored to its original number or not and whether the prohibition as provided by Section 362 Cr.P.C. will apply or not?
Section 362 Cr.P.C. provides as under :
"362. Court not to alter judgement - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

Section 353 Cr.P.C. defines the judgment as under :
"353. Judgment -
1. The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the Presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders:-
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.
2. Where the judgment is delivered under clause (a) of sub- section (1), the presiding officer shall cause it to be taken down in short- hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court.
3. Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub- section (1), as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him.
4. Where the judgment is pronounced in the manner specified in clause (c) of sub- section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost.
5. If the accused is in custody, he shall be brought up to hear the judgment pronounced.
6. If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted: Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.
7. No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place.
8. Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465."

The exception to the aforesaid section has been enumerated in sub-clause 8 of Section 353 as contained in Section 465, which reads as under:
Section 482 Cr.P.C. is quoted below as under:
"482. Saving of inherent power of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
Learned counsel for the petitioner has emphasized the word "secure the ends of justice".
As far as the contention of the learned counsel for the petitioner that the opportunity of being heard was not given to him has a different cannotation with the word 'opportunity of being heard' has been availed or not. The case was listed for 29.04.2015, therefore, it cannot be said that the opportunity of being heard was not extended to the applicant. However, the said opportunity of hearing was not availed by the applicant for the reason that his counsel had suddenly fallen ill and he had to leave the court in the mid day and he could not mention it before the court. It is also settled principle that the party should not suffer for the fault or latches of the counsel.
In Vishnu Agarwal vs. State of Uttar Pradesh; 2011 (74) ACC 609 SC, Hon'ble Suprme Court has held as under :
It often happens that sometimes a case is not noted by the Counsel or his clerk in the cause list, and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order dated 2.9.2003 and directed the case to be listed for fresh hearing. The aforesaid order recalling the order dated 2.9.2003 has been challenged before us in this appeal.
Learned Counsel for the appellant has relied on the decision of this Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa AIR 2001 SC 43. Para 10 of the said judgment states:
" Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussain's case (AIR 1958 SC 376)(supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561A(Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment."
"In our opinion, Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice. As Brahaspati has observed :
"Kevalam Shastram Ashritya Na Kartavyo Vinirnayah Yuktiheeney Vichare tu Dharmahaani Prajayate"
which means:
"The Court should not give its decision based only on the letter of the law. For if the decision is wholly unreasonable, injustice will follow."

In Asit Kumar Kar vs. State of West Bengal and others; (2009) 1 SCC (Cri) 851, Hon'ble the Supreme Court has held as under :
"There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.
We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association v. Raghabendra Singh & Ors. [2007 (11) SCC 374] cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences.
In these circumstances, we recall the directions in paragraph 40 of the aforesaid judgment. However, if anybody has a grievance against the grant of licences or in the policy of the State Government, he will be at liberty to challenge it in appropriate proceedings before the appropriate Court. The writ petitions are disposed of with these directions."

In Ram Naresh Yadav and others vs. State of Bihar; 1987 CRI.L.J. 1856 & AIR 1987 SCC 1500, Hon'ble the Apex Court has held as under :
"It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf. As the matter is being remanded to the High Court, no orders can be passed on the bail application. The appellants, if so advised, may approach the High Court for bail"
In Rafiq and another vs. Munshi Lal and another; AIR 1981 SC 1400, Hon'ble the Apex Court has held as under :
"The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs.200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi."
In Raghuvera and others vs. State of U.P.; 1990 CRI.L.J. 2735 (All.), this Hon'ble Court has held as under :
"It is no doubt true that Section 362 Cr. P.C. debars the court from altering or reviewing any final order or judgment given by a court except to correct the clerical or arithmetical error. But the question arises whether an order dismissing an application for revision for default of the counsel as not pressed can be termed as a judgment or final order? The term "Judgment" has not been defined in the Criminal Procedure Code but a judgment means the expression of the opinion of the Court arrived at after due consideration of the entire material on record, including the arguments, if any, advanced at the Bar. A final order or judgment can only be passed in a criminal court when the court applies its mind to the merit of the case. In case the order is passed in a criminal proceeding and the application for revision is dismissed for default as not pressed, the said order cannot be taken as either final order or a judgment. Thus Section 362 Cr. P.C. is no bar to review ore alter the order dated 14th March 1990. The order in question was passed without going into the merit of the case and is without jurisdiction and as such it has to be set aside."

In K. G. Keralakumaran Nair vs. State of Kerala and other; 1995 CRI. L. J. 2319, the Kerala High Court has held as under:
"That leads us to the further question whether an appeal or other criminal proceeding dismissed by this Court can be restored to file. The contention is that this Court has no power by virtue of Section 362 of the Code which reads:
"Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
The Section relates only to judgment or final order disposing of a case. What is a judgment or a final order is not seen defined in the Code But the word 'judgment' is understood to mean an order in a trial terminating in either conviction or acquittal of the accused. It has also been held that judgment means the expression of opinion of the Court arrived at after due consideration of the evidence and all the arguments. Understood in this light, every order under the provisions of the Code cannot be considered to be a judgment within the meaning of Section 353 or coming under the scope of Section 362, of the Code. In short, there must be an investigation of the merits on evidence and after hearing arguments in order to constitute a judgment. In the case of an appeal, such judgment has to be one rendered on merits after hearing counsel for appellant or the appellant, as the case may be, and Public Prosecutor or counsel appearing for respondent.
15. Whether an order dismissing an appeal for default amounts to a judgment or a final order coming within the scope of Section 362 of the Code is the next aspect that requires consideration. The Calcutta High Court in the decision in Bibhuty Mohun Roy v. Dasimoni Dassi (1909) 10 Cri LJ 287, held that in India a Court cannot review or alter its own judgment in a criminal case, but it has jurisdiction to hear and determine a criminal case which has not been heard and determined on the merits. It was further held that where the Court discharged a rule because no one appeared, it has power to re-open it.
16. In Sahadeo v. Jagannath, AIR 1950 Nagpur 77: (1950 (51) Cri LJ 662), the appeal was dismissed for non-filing of a copy of the judgment. It was held that the order rejecting the appeal cannot be held to be an order amounting to a judgment within the meaning of Section 369 of the Code of 1898 and there was no bar to the consideration of the appeal on its merits.
17. The question whether a criminal Court has inherent power to revive a complaint in a warrant case which was dismissed under Section 259 of the Code of 1898 for the absence of the complainant on the date of commencement of the preliminary enquiry came up for consideration in W.T. Singh v. C.A. Singh, AIR 1961 Manipur 34 : (1961 (2) Cri LJ 352). While holding that such dismissal of the complaint or discharge of the accused will not amount to an acquittal within the meaning of Section 403, of the Code, it was observed that such an order of dismissal, is not a judgment within Section 366, and therefore Section 369, would not apply. It is also observed that the absence of any provision on a particular matter in the Code does not mean that the Court has no such power and the Court may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited by law.
18. The Andhra Pradesh High Court has gone to , the extent of holding that there should be no objection to the maintainability of a second petition for revision when the first one had failed not on the merits but by default. In Satyanarayana v. Narayanaswami AIR 1961 Andh. Pra. 18 (1961) (2) Cri LJ 37), it was held that there is no question of the High Court becoming functus officio by reason of an order of dismissal for default passed by it on a petition by a private party, who has really no right but a mere concession in the matter of moving the High Court in revision.
19. The Mysore High Court had occasion to consider whether a revision application dismissed for default can be restored in the decision in Madiah v. State of Mysore, AIR 1963 Mysore 191 : (1963(2) Cri LJ 23). That was a case of a dismissal of a revision by the High Court. It was held that subject , to the provisions contained in the Code, a judgment , delivered or an order passed on merits is final after it is duly signed by Court. The inherent power of a High Court cannot be exercised in matters specifically covered by the provisions of the Code. Where the Code is silent about the power of the High Court in respect of any, matter arising before it, it can pass suitable orders in exercise of its inherent powers to give effect to any order passed under the Code or to prevent the abuse of the process of any Court or to secure the ends of justice. It was held that this power can also be exercised to reconsider orders of dismissal of an appeal or application passed without jurisdiction or in default of appearance, where reconsideration is necessary to secure the ends of justice.
20. The Bombay High Court in the decision in Deepak v. State of Maharashtra 1985 Cri LJ 23, observed that the High Court in exercise of its inherent powers can review or revise its judgment if such judgment is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault, the reason being that a party cannot suffer for the mistake of the Court. In that case, the hearing was adjourned to 13th February but the adjourned date was inadvertently marked as 8th February on which date the petitioner and his counsel were absent. The High Court on going through the record passed the order dismissing the petition. It was held that since the petitioner was entitled to a hearing, it could be said that the Court acted without jurisdiction and in violation of the principles of natural justice and in the circumstances the review petition must he allowed.
21. A Division Bench of this Court in Padmachandran v. Radhakrishnan (1984 Ker LT 416), was considering the question whether the inherent powers of this Court under Section 482, can be exercised to restore a revision dismissed for default. In that case, the revision was decided in the absence of the counsel. Request was made for re-hearing the revision. The Division Bench held that the earlier order dismissing the revision was really a disposal for default, counsel for petitioner being absent. For the purpose of securing the ends of justice it was found necessary that the Criminal Revision should be heard afresh,
22. The question whether dismissal of a Criminal Revision petition as not pressed amounts to a final order coming within the scope of Section 362, of the Code arose for consideration before the Allahabad High Court in Raghuvira v. State of U. P. (1990) 3 Crimes 225 : (1990 Cri LJ 2735). If was held that a final order or judgment can only be passed by a criminal Court when the Court applies its mind to the merits of the case. In case the order is passed in a criminal proceeding and the application for revision is dismissed for default as not pressed, the said order cannot be taken as either final order or judgment. It was held that Section 362, of the Code is no bar to review or alter the order of dismissal.
23. The same view was expressed by the Karnataka High Court in Ibrahimsab v. Faridabi (1986) 2 Kant LJ 65. It was held that the expression "final order disposing of the ease" means a considered order on merits and not an order of dismissal for default and the provision contained in Section 362, does not come in the way of the Court recalling such order and restoring the revision dismissed for default. \
The decision in Chandran's case ((1989) 2 Ker LJ 845) (supra) did not also consider the scope of the inherent power of this Court under Section 482, of the Code and power of this Court to dismiss an appeal or any other criminal proceeding in exercise of that power or the power of restoration. Having considered those matters in detail in the light of the pronouncements of the various High Courts. I am of the considered view that this Court has all the inherent powers to make any order to prevent the abuse of the process of Court or for the ends of justice or to enforce discipline by invoking the powers under Section 482, of the Code, Section 386 of the Code notwithstanding. The provision contained in Section 386 cannot therefore have any application to the exclusion of those inherent powers. Viewed from this angle and in the light of the principle laid down in Ram Naresh Yadav's case (1987 Cri LJ 1856) (SC). I hold that this Court has power to dismiss an appeal or any other criminal proceeding for default and this Court has also the power to restore such proceeding on sufficient grounds being shown for non-appearance. But the right of dismissal and the power of restoration can be exercised only by this Court, and that too in exercise of the powers under Section 482 of the Code, and not by any of the Courts subordinate to this Court since those courts have no inherent powers envisaged under Section 482 of the Code.
The point formulated is answered thus:-
i. A Criminal Appeal shall be disposed of only after perusing the record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears.
ii. A criminal appeal can be decided on merits, only after hearing the appellant or his counsel.
iii. The High Court has powers under Section 482 of the Code of Criminal Procedure to dismiss an appeal or revision or any other criminal proceeding for default or non-prosecution.
iv. The High Court has also inherent power to restore any matter dismissed for default or non-prosecution on sufficient reason being shown.
v. The power of dismissal for default and the power of restoration inhere only in the High Court and cannot be exercised by the Courts subordinate to the High Court since they do not possess the inherent powers under Section 482 of the Code.

In Giridharilal and others vs. Pratap Rai Mehta and another; 1989 CRI. L.J. 2382, the Karnataka High Court has held as under :
Section 362 puts a complete bar for altering or reviewing of a judgment or final order on merits and the only power given to the Courts is that it can correct a clerical or arithmetical error. The said Section does not impose any prohibition for recalling an order.
22. When a judgment or final order is recalled it would result in complete abrogation as if there was no judgment or final order at all. The alteration or review pre-supposes continuing of the initial judgment or final order with the effectuation of some changes or re-examination and reconsideration of the judgment or final order.
23. There appears to be no bar contained in S. 362 or any other Sections of the Code for recalling an order.
24. In this view of the matter, it is my considered view that the grant of prayer made by the petitioners would not offend the salutary principle embodied in S. 362 of the Code.
25. It is the contention of the petitioners that the order dated 4-11-1988 passed in non-compliance with S. 401(2) of the Code needs to be recalled to secure the ends of justice and that therefore they can invoke the inherent jurisdiction of this Court.
26. In the case of Habu v. State of Rajasthan, a Full Bench of Rajasthan High Court while answering a reference wherein the question framed was :
"Whether the judgment given in absence of the appellant or his Counsel but the case decided on merits, can be recalled by the Court in its inherent powers under S. 482, Cr.P.C."
On an exhaustive review of the decisions of the Supreme Court and the various High Courts, held (at p. 101) :
"There are two available on the point. According to one view S. 362, Cr.P.C., has been held to be mandatory and puts complete bar and it has been therefore, held that S. 482, Cr.P.C., can also not be invoked for the purposes of reviewing or altering the judgment. The other view is that recalling is different than reviewing and altering and if the Court is of the opinion that gross injustice has been done, then S. 482, Cr.P.C. should be invoked to recall the judgment and rehear the case. In fact the earlier view has impliedly been done away with by their Lordships of the Supreme Court in Sankatha Singh's case. Their Lordships have held that the appellate Court had no power to review or restore an appeal which has been disposed of under Ss. 424 and 369, Cr.P.C. (old). Similar was the view taken in State of Orissa v. Ram Chandra, . Sankatha Singh's case has been referred to in Sooraj Devi's case, , wherein also their Lordships have held that inherent powers cannot be invoked when there is a complete bar. Scope of S. 482, Cr.P.C. was then considered by their Lordships in Manohar Nathu Sao Samarth v. Marot Rao, . Thus on one side as mentioned above the principles which have been laid down by their Lordships of the Supreme Court can be summarised as under :-
1. That the powers to deal with the case must flow from the statute.
2. That the powers given under S. 362, Cr.P.C. (S. 369, Cr.P.C., old) given to the Court for reviewing or altering is limited only for correcting an arithmetical or clerical error and specifically prohibits Courts from touching the judgment by taking away the powers altering or reviewing the judgment or the final order and as such principle of functus officio has been accepted.
3. That the prohibition contained in S. 362, Cr.P.C. (S. 369, Cr.P.C. old) is not only restricted to the trial Court but also extends to appellate Court or the revisional Court.
4. That the inherent powers of the Court cannot be invoked where there is express prohibition and in other words S. 482, Cr.P.C. cannot be invoked.
As against this the analogical deduction which comes out from another set of cases is -
i. Right of the accused to be heard is his valuable right which cannot be taken away by any provision of law,
ii. If the accused has not been given an opportunity of being heard is not provided with the counsel when not duly represented it will be violative of principles of natural justice as well as Art. 21 of the Constitution.
iii. That to provide defence counsel in case the accused is not in a position to engage is fundamental duty of the State and has throughout been recognized and now incorporated in S. 304, Cr.P.C., and in Art. 39A of the Constitution.
iv. That bar of review or alter is different than the power of recall;
v. That inherent powers given under S. 482, Cr.P.C. (S. 561-A, Cr.P.C. Old) are wide enough to cover any type of cases if three conditions mentioned therein so warrant, namely -
(a) for the purpose of giving effect to any order passed under
the Code of Criminal Procedure;
(b) for the purposes of preventing the abuse of the process of any Court; and
(c) for securing the ends of justice.
vi. The principle of audi alteram partem shall be violated if right of hearing is taken away.
vii. That when the judgment is recalled it is a complete obliteration/abrogation of the earlier judgment and the Appeal or the Revision, as the case may be, has to be heard and decided afresh,
viii. That a Court subordinate to High Court cannot exercise the inherent powers and the Code restricts it to the High Court alone.
ix. That no fixed parameters can be fixed and hard and fast rule also cannot be laid down and Court in appropriate cases where it is specified that one of the three conditions of S. 482, Cr.P.C., are attracted should interfere."
The reference was answered by the Full Bench in the following terms :
i. That the power of recall is different than the power of altering or reviewing the judgment.
ii. That powers under S. 482, Cr.P.C., can be and should be exercised by this Court for recalling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down under S. 482, Cr.P.C."
I am in respectful agreement with the law, laid down by the Rajasthan High Court in the decision rendered by the Full Bench.

In Uma Shanker Jha vs. State of Bihar: 2001 (3) PLJR 728, the Patna High Court has held as under :
"It is well known dictum that justice has not only to be done but it should also appear to have been done and therefore, whenever a litigant comes before the Court it is essential that he must go having full faith in his mind and the Court has done justice with his case and he must at least have the satisfaction that he has been heard by Court. The position of a litigant is also helpless because he has to depend upon his lawyer and mercy of others. He has full confidence on his counsel that he will do his best in his interest. It is well settled that if due to carelessness or laches on the part of lawyer, a case is dismissed the litigant should not be made to suffer. In the instant case the admitted position is that the counsel appearing for the Petitioner was not present on any date when the case was fixed for hearing and through the aid of his colleague adjournments were prayed for which were allowed by the court on three occasions but ultimately the court was compelled to reject the similar prayer since the matter had become too old and the stay was granted in this case. Eventually, the matter was heard ex parte and revision preferred by the Petitioner was dismissed after perusing the order passed by the trial court. It would, therefore, appear that no detail hearing was done in the case and the Petitioner could not get the opportunity of, detail hearing. The counsel for the Petitioner has, therefore, submitted that the Petitioner was highly prejudiced because his case was not argued due to which the revision application was dismissed and the Petitioner did not get justice. There was lapse on the part of conducting lawyer which has made him to suffer. It was, therefore, submitted that ill the ends of justice the Petitioner should, be afforded an opportunity of hearing which will be in conformity with the principles of natural justice and the court has inherent powers under Sections 482 of the Code of Criminal Procedure to recall the order for securing the ends of justice.
In Ibrahimsab vs. Faridabi; ILR 1986 Karnataka 2251, the Karnataka High Court has held as under :
"Section 362 Cr.P.C. contemplates judgment and final order disposing of the case. The expressions 'final order disposing of the case' mean a considered order on merits and not an order of dismissal for default and the provisions, therefore, do not come in the way of the Court (Sessions Judge) recalling such order and restoring the revision dismissed for default. The Sessions Judge was, therefore, not justified in dismissing the application made for re-admitting the revision dismissed for default. The petitioner has given satisfactory explanation for not being present on the particular date when the revision came up for hearing.
The application made before the Sessions Judge is allowed and the Criminal Revision Petition No. 78/83 before the Sessions Judge, Dharwad, is restored and it is ordered that the revision shall be disposed of in accordance with law."

In Ayubbhai Abdulbhai Shah vs. Gabha Bechar and others: 1994 GLH (1) 447, the Gujara High Court, has held as under:
"The aforesaid discussion from the Supreme Court decision read along with the reference to Halsbury's Laws of England makes it quite clear that the order dismissing the matter for default is not a decision on merits. The judgment in nothing if not a decision given by a competent Court on merits of a case in respect of a lis between the parties.
8. There are several authorities starting with Jbrahim v. Emperor AIR 1928 Rangoon 288 holding that order of dismissal for default can be reviewed inspite of Section 369 of the Code of Criminal Procedure, 1898. There it has been clearly held that 'judgment' contemplated by Section 369 is only a decision on merits. Dismissal for default of appearance therefore, is not a judgment and High Court has power to review dismissal order for default of appearance passed in its appellate jurisdiction.
9. On the same line is Raju v. Emperor AIR 1928 Lahore 462. The matter therein was decided with reference to Section 561A and Section 369 of 1898 Code. It is held therein that the High Court has no inherent power to alter or review its own judgment except in case of default, for want of jurisdiction. To the absence of inherent power with regard to alteration or review of its own judgment, obviously there is a specific provision in the said Section 369 of 1898 Code corresponding to Section 362 of the new Code quoted hereinabove. In other words, the learned Judges of the Lahore High Court have adopted the same reasoning as adopted in Rangoon decision. Dismissal for default not being a decision on merits, Section 369 corresponding to new Section 362 will not be a bar.
10. In re Wasudev Narayan Phadnis relates to a case before a Magistrate who in exercise of his power under Section 259 of 1898 Code had discharged the accused persons on account of the absence of the complainant pointing out that it did not amount to applying his mind to the evidence. In the case the Magistrate has done nothing else but resorted to me procedural consequence and therefore, it being not a judgment he can certainly review that order and restore the complaint. In the case before the learned Judges of the Bombay High Court the Magistrate while so doing had not issued notice to the accused that was termed as mere irregularity not vitiating the proceedings.
11. Sahadeo and Ors. v. Jaganath Kashinath and Ors. AIR 1950 Nagpur 77. In this decision, the learned Judges has taken the same view while dealing with a case under Sections 369, 419 and 421 of 1898 Code. An appeal was dismissed for non-filing of judgment copy. It was held to be a rejection and a dismissal of appeal and therefore, it was held that there is no bar to consider the appeal on merits. The case was therefore, remanded in revision. The reasoning was that the said order cannot be said to be a judgment within the meaning of Section 369.
12. Madiah v. State of Mysore AIR 1963 Mysore 191. In this decision with reference Section 369 and Section 561A of the Code of Criminal Procedure, it is held by the learned Judge of the Court that where a revision application was dismissed for default of appearance, Court can review its order, if necessary, to secure the ends of justice. Section 369 of 1898 Code is not held to be a bar.
13. The head note of a decision of Gauhati High Court reported in Smt. Tulsi Devi v. Bhagat Ram 1983 Cri.LJ 72 also indicates that Section 362 does contain the words 'save as otherwise provided by this Code or any other law for the time being in force. It does not take away the inherent power of the High Court. If a revision application is dismissed for default of appearance, it cannot be treated as a final order disposing of the case within the meaning of Section 362 and, therefore, that order can be set aside by the High Court under Section 482.
14. Raghubans Prasad v. State : In this decision the learned single Judge of that Court has held that order of discharge is not a judgment within the meaning of Section 369 and can be reviewed by the trial Court eventhough not set aside by superior Court. The learned Judge has further pointed out in paras 3, 10 and 13 of the judgment that in order to constitute a judgment within the meaning of Section 369, mere must be an investigation on the merits of the case on evidence and after hearing the arguments, where, however the order is passed summarily without consideration of the entire evidence, as in the case of the order of discharge, it will not obviously amount to a judgment.
15. On the same line is one more decision of the High Court rendered by its Division Bench reported in Ramballabh Jha v. State of Bihar . In that case, the name of the Counsel was not shown in the daily list of cases. The appeal came to be dismissed without the Counsel being heard. Referring to Sections 561 A, 369 and 421 of 1898 Code, the learned Judges were pleased to hold that the judgment can be set aside for rehearing under Section 561A holding that the judgment rendered in appeal was without any opportunity being given to the appellant or his Advocate within the meaning of Section 421 and it was liable to be set aside and appeal could be ordered to be reheard in exercise of power under Section 461A.
16. The decision reported in Rajendra Laldas Acharya v. State 1993 (2) GLH 22 : 1993 (2) GLR 1259 is also on the same line wherein also the learned Judges have held that the right of rehearing, when the case was decided without giving an opportunity of hearing was accepted by the Supreme Court and by invoking the inherent powers by the High Court rehearing could be done.
17. Obviously, the aforesaid Patna decision is in keeping with the well-known position of the administration of justice that an act of the Court shall not prejudice any party.
18. My learned brother Justice J.N. Bhatt had an opportunity to deal with an identical question in Misc. Criminal Application No. 3225 of 1993. The Gujarat Electricity Board, its Officer being the original complainant, had filed a complaint before the learned J.M.F.C., Mansa. The accused came to be acquitted. Against that Cri. Appeal No. 924 of 1985 was filed which came to be dismissed for default on 25-2-1993. Pointing out that the Advocate of the original-appellant was unaware of the matter and raising other grounds as well, request for restoration was made. This was opposed to by the original-accused on the ground that Section 362 would come in the way. After referring to the provision of Section 362, my learned colleague straightway resorted to powers under Section 482 of the Code and decided to exercise inherent power reserved thereunder and restored the matter.
19. The result of the discussion so far is clearly to the effect that under the Old Code, the inherent powers reserved under Section 561A corresponding to Section 482 of the New Code are always available in such a case. However, I would like to state here that Section 362 of the Code will be attracted only and only if there is a final order as understood in contradistinction of the word "interlocutory" discussed above. With reference to the judgment also I definitely say that an order would be a judgment only if rights of the parties are decided after taking into consideration the entire material on record which will include oral evidence and documentary evidence, if any and all other materials that might have been placed on record.
19.1. Dismissing a matter for default being not an order of either of these 2 natures, obviously, there is no question of provisions of Section 362 coming in the way. The Court can certainly restore the same, if necessary, by invoking its inherent power under Section 482.

In Ramautar Thakur and others vs. State of Bihar; AIR 1957 Patna 33 & 1957 Cri. L.J. 82, the Patna High Court has held as under :
"There is no statutory provision for such a restoration. The power to restore a case dismissed for default, if it exists, must, therefore, be an inherent power, which is saved by- the provisions of Section 561 A, Criminal P. C., This section was inserted in the Criminal Procedure Code by the Amendment Act of 1923. It is merely a saving clause which does not confer a new power on the High Court. The decisions of the High Courts prior to this amendment are, therefore, still applicable,
The Criminal Procedure Code, unlike the Civil Procedure Code, does not define 'Judgment' A 'judgment' means the expression of the opinion of the Court arrived at after, a due consideration of the evidence and all the arguments. The above meaning of the word 'Judgment', as is to be found in Full Bench decisions of the Madras High Court in Re Chinna Kaliappa Goundan, ILR 29 Mad 126 (Q), of the Bombay High Court in Emperor v. Nan-dial Chunilal, 48 Bom LR 41: (AIR 1946 Bom 276) (FB) (R), and of the Calcutta High Court in Damu Senapati v. Shridhar Rajwar, ILR 21 Cal 121 (S), was approved by their Lordships Bhagwati and Imam JJ., in the Supreme Court case just mentioned.
Their Lordships mentioned that the observations of the Madras High Court in its Full Bench decision, just referred to, were quoted with approval by Sulaiman J., in Dr. Hori Ram Singh v. Emperor, AIR 1939 FC 43 (T), in which his Lordships Sulaiman J., observed that the Criminal Procedure Code did not define a 'judgment', but various sections pf the Code suggested what it meant His Lordship then discussed those sections and concluded that 'judgment' in the Code meant a judgment of conviction or acquittal.
The question, therefore, for our consideration is, is the order of dismissal for default a 'judgment' ?
For the reasons given above, I hold that this Court has got powers to restore Cri. Revn. No. 198 of 1956, which stood dismissed for default, by force of the order of this Court dated 10-2-1956, in the exercise of its inherent jurisdiction under Section 561A, Criminal P. C."
In the case of Hari Singh Mann vs. Harbhajan Singh Bajwa; 2001 SCC (Cri) 113, Hon'ble the Apex Court has held as under :
"We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7.1.1999, there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of Code of Criminal Procedure or the rules of the Court, cannot be resorted to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of the respondents in the petition. Merely because the respondent NO.1 was an Advocate, did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30th April, 1999 and 21st July, 1999 could not have been passed by the High Court under its inherent power under Section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court.

Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussain's case (supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment."

In the case of State of Punjab vs. Davinder Pal Singh Bhullar and others; 2012 Cri. L. J. 1001 SC, Hon'ble the Apex Court has held as under :
"If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault"

From the aforesaid judgments of Hon'ble the Apex Court as well as of various High Courts, it is clear that prohibition of Section 362 Cr.P.C. is absolute and when the judgment has been signed, even the High Court in exercise of its inherent power under section 482 Cr.P.C. has no authority or jurisdiction to alter or review the same.
Certainly, if any petition has been dismissed for want of prosecution or in default of the petitioner and the reasons for decision have not been rendered after applying the mind to the pleadings of the case as well as the grounds of petition, that order of dismiss in default cannot be termed as 'Judgment' because the judgement should contain not only the facts and pleadings of the case but also the documentary as well as oral evidence. In the judgment, it is required that there should be marshalling of the facts as well as appreciation of the evidence in respect of the determination of the matter in issue. The judge is also required to give reasons for its decision after looking into the various probabilities as well as cogent reasons for relying or not relying the contention and evidence of either party.
The process of judgment involves the following stages:
I. Collection of Facts;
II. Time Sequencing of Facts
III. Shifting facts from opinions
IV. Marshalling of Facts
V. Find out the Problems (Charge/Issues)
VI. What is the main problem (Charge/Issue)
VII. Record of Evidence
VIII. Churning of Evidence
IX. Shifting of Evidence
X. Weighing the different alternatives
XI. Apply Precedents
XII. Look into Prohibitions
XIII. Findings and Conclusions
XIV. Order.

In the present case, the petition has been dismissed for want of prosecution, although opportunity of hearing was given but that opportunity of hearing could not be availed due to sudden illness of the counsel. The inherent power under section 482 Cr.P.C. can be exercised to give effect to any order under Cr.P.C. or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Certainly, if the application has been dismissed for default, that cannot be termed as 'judgement'.
Accordingly, the bar as provided by section 362 Cr. P.C. shall not be applicable. This court has power to dismiss in default any application or writ petition and at the same time has also power to restore such proceedings on sufficient grounds being shown for non-appearance provided it appears to the court that default was not wilful and it was accidental. There are instances, where either legal advise is given or due to shrewd character of the litigant malafide efforts are adopted with a view to delay the proceedings of the case, such tactics are also adopted to get the case dismissed in default and then to move application for restoration and thus, lingering on the proceedings. Certainly, such practice must be carved out and should not be permitted to continue.
The views expressed by the various High Courts in the aforesaid decisions are in favour of the restoration of such petition, which has been dismissed in default in exercise of powers under section 482 of the code of criminal procedure with a view to secure the ends of justice and I am also in respectful agreement with the views expressed by the various High Courts in the aforesaid decisions.
Therefore, I am of the view that if any petition has been dismissed in default and the application for recall is made, then it will not come within the meaning of words 'alter' or 'review' as expressed in Section 362 of the Code. Accordingly, such orders may be recalled or set aside provided the intention of the parties is bonafide i.e. party who has moved the application for recall or restoration is not unnecessary lingering on the proceedings malafidely or that interim order or stay order, if any, is not being misused.
Accordingly, the application for restoration or recall of the order is maintainable and the prohibition of Section 362 Cr.P.C. do not apply in the petitions, which have been dismissed in default without discussing the merits of the case because it do not come within the prohibition of 'alter' or 'review' of judgment, which has entirely a different meaning.
In the present case, the petition was dismissed for want of prosecution because the counsel for the petitioner could not appear due to sudden illness for which the learned counsel for the CBI also has raised no objection.
Accordingly, the application for recall is allowed.
The order dated 29.04.2015 is recalled. The petition is restored to its original number and status.
Order Date :- 5.8.2015
VNP/- 

---

Visit http://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do for more Judgments/Orders delivered at Allahabad High Court and Its Bench at Lucknow. Disclaimer