Sri Budhia
Swain & Ors Vs. Gopinath Deb & Ors [1999] INSC 193 (7 May 1999)
A.P.Misra,
R.C.Lahoti R.C. LAHOTI, J.
The
respondent no.1 is a deity seated at village Bishwanathpur in the District of Puri.
On an application filed by the respondent no.1 under Sections 6 and 7 of the Orissa
Estates Abolition Act, 1951 (hereinafter 'the Act', for short), the Estate
Abolition Collector-cum- Additional Tashildar passed an order of settlement
dated 2.4.1966 in favour of respondent no.1 settling the lands covered by khata
numbers 431 & 438 of village Bishwanathpur. Rent schedule was issued
pursuant to the order of settlement and rent was realised from the respondent
no.1 from the date of settlement. There was no appeal preferred against the
order dated 2.4.1966 and thus the order of settlement achieved a finality.
On
24.7.74 the appellants, 12 in number, who are residents of village Panibhandar,
District Puri filed an application seeking review of the order of settlement
dated 2.4.66. The only ground for review raised in the application was that the
public notice of the claim preferred by the respondent no.1 was not served in
the locality as prescribed. The O.E.A. Collector purported to exercise the
power of review under Section "151 CPC" having formed an opinion that
the proclamation was not properly done in accordance with the law as the
order-sheet of the case did not disclose the manner of proclamation. The
respondent no.1 preferred an appeal before the Additional District Magistrate
(Land Records) Puri, who formed an opinion that the O.E.A. Collector was not
expressly conferred with any power of review but the order could be justified
as one of recalling of an earlier order which had occasioned failure of
justice. If the mandatory provisions of Section 8A (2) of the Act were not
followed then the order dated 2.4.1966 was rendered a nullity. The learned ADM
observed that the claim petition by respondent no.1 was filed some time in
1963, i.e. beyond the prescribed period of six months. The learned ADM also
observed that the claim preferred by the respondent no.1 should have been
treated as a lease case and not as a claim case. At the end, sustaining the
setting aside of the order dated 2.4.1966 the learned ADM remanded the case to
the O.E.A. Collector-cum- Additional Tahsildar for disposal afresh in the light
of the observations made by him. The respondent no.1 preferred a petition under
Article 226/227 of the Constitution before the High Court of Orissa. The
petition has been allowed and the orders of O.E.A. Collector and the ADM have
both been set aside by the High Court forming an opinion that the power to
review as assumed by O.E.A. Collector did not exist and the circumstances of
the case did not warrant the exercise of power to recall an earlier order
passed by the O.E.A. Collector which was one passed within the jurisdiction of
the O.E.A. Collector being set aside, more so when the averments made in the
application seeking review/recall did not go beyond alleging an irregularity
merely or at the worst an illegality. The aggrieved appellants, the 12
villagers who had sought for review/recall, have filed this appeal by special
leave impugning the order of the High Court. Having heard the learned counsel
for the parties we are of the opinion that no fault can be found with the order
of the High Court and the appeal therefore deserves to be dismissed.
The
only provision for review in the Act is to be found in Section 38A whereunder a
review may be sought for within one year from the date of the decision or order
but only on the ground that there has been a clerical or arithmetical mistake
in the course of any proceedings in the Act. It was also conceded by the
learned counsel for the appellants that the proceedings initiated by the
appellants were certainly not under Section 38A. It was also conceded at the
bar that the subsequent action of the O.E.A. Collector could be sustained only
if supportable by the power to recall. What is a power to recall? Inherent
power to recall its own order vesting in tribunals or courts was Ltd. 1996 (5)
SCC 550. Vide para 23, this Court has held that the courts have inherent power
to recall and set aside an order
(i)
obtained by
fraud practised upon the Court,
(ii)
when the Court
is misled by a party, or
(iii)
when the Court
itself commits a mistake which prejudices a party. In (vide para 130), this
Court has noticed motions to set aside judgments being permitted where (i) a
judgment was rendered in ignorance of the fact that a necessary party had not
been served at all and was shown as served or in ignorance of the fact that a
necessary party had died and the estate was not represented, (ii) a judgment
was obtained by fraud, (iii) a party has had no notice and a decree was made
against him and such party approaches the Court for setting aside the decision ex
debito justitiae on proof of the fact that there was no service. In Corpus Juris
Secundum (Vol. XIX) under the Chapter "Judgment- Opening and
Vacating" (paras.265 to 284 at pages 487-510) the law on the subject has
been stated. The grounds on which the courts may open or vacate their judgments
are generally matters which render the judgment void or which are specified in
statutes authorising such actions. Invalidity of the judgment of such nature as
to render it void is a valid ground for vacating it at least if the invalidity
is apparent on the face of the record.
Fraud
or collusion in obtaining a judgment is a sufficient ground for opening or
vacating it. A judgment secured in violation of an agreement not to enter
judgment may be vacated on that ground. However, in general, a judgment will
not be opened or vacated on grounds which could have been pleaded in the
original action. A motion to vacate will not be entered when the proper remedy
is by some other proceedings, such as by appeal. The right to vacation of a
judgment may be lost by waiver or estoppel. Where a party injured acquiesces in
the rendition of the judgment or submits to it, waiver or estoppel results. In
our opinion a tribunal or a court may recall an order earlier made by it if
(i)
the proceedings
culminating into an order suffer from the inherent lack of jurisdiction and
such lack of jurisdiction is patent,
(ii)
there exists
fraud or collusion in obtaining the judgment,
(iii)
there has been a
mistake of the court prejudicing a party or
(iv)
a judgment was
rendered in ignorance of the fact that a necessary party had not been served at
all or had died and the estate was not represented. The power to recall a
judgment will not be exercised when the ground for re-opening the proceedings
or vacating the judgment was available to be pleaded in the original action but
was not done or where a proper remedy in some other proceeding such as by way
of appeal or revision was available but was not availed. The right to seek
vacation of a judgment may be lost by waiver, estoppel or acquiescence. A
distinction has to be drawn between lack of jurisdiction and a mere error in
exercise of jurisdiction.
The
former strikes at the very root of the exercise and want of jurisdiction may
vitiate the proceedings rendering them and the orders passed therein a nullity.
A mere error in exercise of jurisdiction does not vitiate the legality and
validity of the proceedings and the order passed thereon unless set aside in
the manner known to law by laying a challenge subject to the law of limitation.
In Hira Lal ".......The validity of a decree can be challenged in
execution proceedings only on the ground that the court which passed the decree
was lacking in inherent jurisdiction in the sense that it could not have seisin
of the case because the subject matter was wholly foreign to its jurisdiction
or that the defendant was dead at the time the suit had been instituted or
decree passed, or some such other ground which could have the effect of
rendering the court entirely lacking in jurisdiction in respect of the subject
matter of the suit or over the parties to it." As already noted the
appellants sought for review or recall of the order from the O.E.A. Collector
solely by alleging that the notice which was required to be published in the locality
before settling the land in favour of the respondent no.1 was not served in
accordance with the manner prescribed by law. The appellants did not plead
`non-service of the notice' but raised objection only with regard to `the
manner of service of the notice'. The High Court had called for and perused the
record of the O.E.A. Collector and noted that the notice was issued on
15.12.1963 inviting public objection. The notice was available on record but
some of its pages were missing. The O.E.A. Collector had noted in his order
dated 23.2.1966 as under :-.lm20 "It is only due to missing of some pages
of the proclamation including the last page over which the report of the
process server was there, a scope was available to the objectors to file this petition.
Under the above circumstances, it is not necessary to issue another
proclamation and entertain further objection since the case is being heard and
going to be finalised on 14.3.66." The O.E.A. Collector was satisfied of
the notice having been published. Assuming that the notice was not published in
the manner contemplated by law, it will at best be a case of irregularity in
the proceedings but certainly not a fact striking at the very jurisdiction of
the authority passing the order. The Appellate Authority, i.e., the ADM has in
his order noted two other contentions raised by the appellants, viz., (i) the
application for settlement by the respondent no.1 was not filed within the
prescribed time, and (2) the application should have been treated as an application
for lease and should not have been treated as a claim case. None of the two
pleas was raised by the appellants in their pleadings. None of the two was
urged before O.E.A. Collector. Therefore there was no occasion to consider
those pleas. Still we may make it clear that none of the two pleas could have
been a ground for recalling the order which was otherwise within the
jurisdiction conferred on the O.E.A. Collector. Though it is a disputed
question of fact, as noted by the High Court, that the application by the
respondent no.1 was filed within the prescribed time or not. Nevertheless, we
are very clear in our mind that an order made on an application filed beyond
the time prescribed for filing the same may be an illegal order but is
certainly not an order passed without jurisdiction.
A suit
or proceeding entertained and decided in spite of being barred by limitation is
not without jurisdiction;
at
worst in can be a case of illegality. In Ittyavira this Court has held:-
".....Even assuming that the suit was barred by time, it is difficult to
appreciate the contention of learned counsel that the decree can be treated as
a nullity and ignored in subsequent litigation. If the suit was barred by time
and yet the Court decreed it, the court would be committing an illegality and
therefore the aggrieved party would be entitled to have the decree set aside by
preferring an appeal against it. But it is well settled that a Court having
jurisdiction over the subject matter of the suit and over the parties thereto, though
bound to decide right may decide wrong; and that even though it decided wrong
it would not be doing something which it had no jurisdiction to do. It had the
jurisdiction over the subject-matter and it had the jurisdiction over the party
and, therefore, merely because it made an error in deciding a vital issue in
the suit, it cannot be said that it had acted beyond its jurisdiction. As has
often been said, courts have jurisdiction to decide right or to decide wrong
and even though they decide wrong, the decrees rendered by them cannot be
treated as nullities...." So also whether an application by way of claim
petition or an application for grant by way of lease, both were entertainable
by the O.E.A. Collector and it was for him to decide which way he chose to deal
with the application. In any case, he had the jurisdiction to deal with the
application. No case was made out before the O.E.A. Collector and the ADM for
recalling the order of settlement dated 2.4.1966. The order did not suffer from
lack of jurisdiction or from error of jurisdiction much less an inherent one.
The High Court has rightly set aside the order dated 2.2.1976 passed by the
O.E.A. Collector as the same was without jurisdiction. In passing the order
dated 2.2.1976 O.E.A. Collector had exercised a jurisdiction which the law did
not vest in him. The order could not have been sustained by the ADM in appeal.
No fault can be found with the view taken by the High Court. The appeal is
therefore dismissed though without any order as to the costs.
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