Lalmalsawm vs State of Manipur and Others

A.K. Patnaik, J.—Heard Mr. G. Khupchinpau, learned Counsel for the applicant as well as Mr. R.S. Reisang, learned Addl. G.A. for the Respondents.

The Writ Petition No. 818/98 had been filed by the applicant of the present miscellaneous case. On 14.5.99 when the aforesaid writ petition No. 818/98 was taken up by the court, no one appeared for the Petitioner. Mr. R.S. Reisang, learned Addl. G.A. however appeared for the State Respondent and submitted that the land claimed by the Petitioner in the writ petition was Govt. Khas land and cannot be acquired by the Govt. Since the Petitioner''s case in the writ petition was that the land was actually owned by the Petitioner and acquired by the Govt., without payment of compensation, the court dismissed the writ petition by an order dated 14.5.99 stating therein that the question of ownership of the land in question cannot be decided in the writ petition because evidence is required to establish such ownership. Misc. Case No. 395/99 has been filed by the writ Petitioner for recalling the said order dated 14.5.99 dismissing the writ petition.

Mr. G. Khupchinpau, learned Counsel for the Petitioner submitted that on 14.5.99 when the aforesaid case was called for hearing, the counsel for the Petitioner was unable to attend the court due to illness and in the absence of the Petitioner or his counsel the court dismissed the writ petition. He further contended that if the Petitioner or his counsel was present on 14.5.99, he would have been able to persuade the court to record the finding that the land in question was actually owned by the Petitioner and not by the Govt., as contended by the learned Additional G.A. Mr. R.S. Reisang, learned Additional G. A. on the other hand, submitted that since the writ petition was dismissed on merits and not on the ground of default on the part of the Petitioner by the order dated 14.5.99, the proper course for the applicant of the present Misc. Case is to file a review application for reviewing of the said order dated 14.5.99 or to file under Article 226 a writ appeal before the Division Bench against the order dated 14.5.99 passed by the learned Single Judge of this Court.

In my considered view, the aforesaid objection raised by Mr. R.S. Reisang, learned Additional G.A. is a tactical objection. Under Article 226 of the Constitution the Court has plenary jurisdiction to do justice and in exercise of plenary jurisdiction, the court can always recall an order if the interest of justice so required. It is in exercise of plenary jurisdiction under Article 226 that the court exercises the power of review in the interest of justice. This has been held by the Apex Court as far back as in the year 1963 in the case of Shivdeo Singh and Ors. v. State of Punjab and Ors. reported in AIR 1993 SC 1909. But such power of review can only be exercised by the Court on the same principles as are indicated in order 47 of the CPC although the provisions of order 47 of the CPC did not strictly apply to a proceeding under Article 226 of the Constitution. One of the grounds indicated in order 47, CPC for reviewing a decree or order passed by the court is "any other sufficient reason". Where the Petitioner or his counsel could not be heard by the court while passing an order is on merit, the court can review the said order on merit on such other sufficient reason. The counsel for the Petitioner has submitted that if he was present in court on 14.5.99 when the order was passed on merit, he would have been able to persuade the court to take a different view. This is therefore a case where the court ought to entertain this Misc. Application as a review application, hear the counsel for the Petitioner and thereafter pass fresh orders in the writ petition.

For the aforesaid reasons the order dated 14.5.99 passed in Civil Rule No. 818/1998 is recalled and the said Civil Rule will now be posted by the office for hearing on merit

The Misc. Application is disposed of.