In general, it is believed that once the Court has pronounced an order,
the same orders becomes permanent, and if any modification is required by
any party, then it must be appealed against in a higher forum or one might
file revision, as the case may be. Apart from that, if the statute
permits, then review of the Order/Judgment is also permissible in certain
cases. There, the Judge, who has passed the Order, is to review his own
order under a limited scope. However, in addition to that, each
court/tribunal/judicial/quasi-judicial body possesses the authority to
recall its own orders under certain particular circumstances, which does
not amount to a review of the original order. This article examines court
order recalls, including their procedural aspects and legal bases, and
judicial opinions regarding this practice.
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What is Recall of an Order?
The legal concept of “recall of order” enables courts to reverse decisions already issued through court orders. Recall differs from both appeals and reviews because it operates as an independent legal procedure. The court that issued the order possesses the power to revoke it when specific criteria are fulfilled. In simpler terms, even though there is no specific provision for recall, the Courts/Tribunals possess the inherent power to recall its own Order, as and when required, but under certain circumstances.
Under What Provision Can a Court Recall Its Order?
Before we go deeper into the topic, it is relevant to state here that in suits, the provisions of CPC are applicable stricto senso. But in cases of other civil forums, e.g. tribunals, High Courts or Supreme Court, even though the procedural aspect is not followed in letter and spirit, the principles of the Civil Procedure Code are adopted. The Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) stands as the main legal provision which governs order recall procedures in Indian civil procedure. The provision applies specifically to decrees that courts issue without an adversary party being present.
In simple english terms, the provision of Order IX Rule 13 of the Code of Civil Procedure 1908 (CPC) speaks that the court has the power to recall decrees when one party fails to attend court at the time of disposal of the suit as long as they demonstrate valid reasons for their non attendance, such as improper service or legitimate excuses.
Apart from this, the Code of Civil Procedure contains additional provisions beyond this one. Let’s look at a few more:
- Section 114 and Order XLVII Rule 1 CPC –These allow the court to review its own judgment or order under limited grounds, like discovery of new evidence or an error apparent on the face of the record.
- Inherent Powers under Section 151 CPC – It is the inherent power of a Civil Court. If there’s no specific provision, courts can use their inherent powers to recall an order in the interest of justice.
When Can an Order Be Recalled?
A court or tribunal can recall its own order if:
- The Order suffered from an inherent and patent lack of jurisdiction
- The order was obtained by fraud on the Court or collusion
- There has been a mistake committed by the Court that prejudicially affects the party
- The Order was passed in ignorance of the fact that a necessary party had not been served with notice
- A party had died, and the estate was not represented
- There was a procedural irregularity or mistake.
- The order is an ex parte decree, and the absent party seeks restoration.
But remember: Such power to recall is, however, not available if the ground on which recall of the Order and reopening of the proceeding sought for was available to be pleased during the proceeding, but was not done. Further, if there is an alternative remedy by way of appeal or revision, but has not been availed. Courts do not recall orders just because someone didn’t like the outcome. There has to be a valid legal reason as aforestated.
What Have the Courts Said About it?
The Indian judiciary has laid down several important rulings about recall of orders. Let’s look at a few:
- Indian Bank vs. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550: The Supreme Court held that courts can recall orders obtained by fraud, saying: “Fraud vitiates all solemn acts. Courts have the inherent power to recall orders obtained by playing fraud on the court.”
- Budhia Swain & ors vs. Gopinath Deb & ors AIR 1999 SC 2089: The Court or tribunal may recall an order earlier made by it if: the proceeding culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent; there exists fraud or collusion in obtaining the judgment; there has been a mistake of the court prejudicing a party; a judgment was rendered in ignorance of the fact that a necessary party has not been served at all or had died and the estate was not represented.
- Grindlays Bank Ltd. vs. Central Government Industrial Tribunal (1980) 2 SCC 191: In this case, the court emphasized the inherent powers of a tribunal or court to recall an ex parte order in the interest of justice.
- Kapoor Chand vs. Ganesh Dutt, AIR 1993 All 291: The Allahabad High Court held that courts must use their discretion carefully and only recall orders in rare cases where justice truly demands it.
- Greater Noida Industrial Development Authority vs Prabhjit Singh Soni & another (2024) 6 SCC 767: NCLT has inherent power to recall its own order, if on application it is found out that: the order is without jurisdiction; the party aggrieved with the order is not served with notice of the proceeding in which the order under recall has been passed; the order has been obtained by misrepresentation of facts or by playing fraud upon the court/tribunal in gross failure of justice.
What About Criminal Cases?
In criminal law, the scope for recall is more limited. Under Section 362 CrPC, once a judgment or final order is signed, the court cannot alter or review it except to correct a clerical or arithmetical error. Criminal courts generally cannot alter or review their judgments once signed. But lately, the Supreme Court has held that orders passed due to procedural fraud or mistake can still be recalled in the interest of justice
In exceptional cases, the criminal courts can allow the recall petition:
- The order was passed without jurisdiction.
- There was a gross miscarriage of justice.
- Fraud was played on the court.
Conclusion
To sum it up: yes, a court in India can recall its own order, but only in specific circumstances. The recall of an order stricto senso does not mean review of the order, and each Court and tribunal has its inherent power to recall its own order, even though there is no specific provision contained in the Statute/Act itself. However, it is to be borne in mind that the Courts use this power sparingly, only to prevent injustice or correct errors and by recalling an order, the proceeding cannot be reopened, and the parties are not permitted to patch up their lacunae thereafter.