Ex-Parte Order Can Be Recalled At Behest Of Necessary Party That Is Non-Party To A Case: Allahabad High Court

The Allahabad High Court has held that every Court and Tribunal have inherent power to set aside an ex-parte order as it amounts to ‘procedural review’ and is distinct from the statutory power to review a case on merits.

Justice Yogendra Kumar Srivastava held that revenue authorities can recall an ex-parte order, passed without grant of notice or opportunity to the affected party, to correct the procedural defect for doing justice between the parties. ‘Procedural review’ is an inherent power of every Court and Tribunal “to correct procedural illegality which goes to the root of the matter and invalidates the proceedings itself and consequently the order passed therein.”

Petitioner’s application under Section 24 of the UP Revenue Code, 2006 for demarcation of boundaries was allowed vide an ex-parte order. Against this order, private respondents herein, claiming to be tenure holders of adjoining properties, moved a recall application. Thus, a stay was granted on the ex-parte order which was challenged before the High Court.

Counsel for Petitioner contented that Section 24(4) of the Code empowers any non-party to a Section 24 application, to file appeal against the order passed therein.

Further, right to file recall application under Section 209(h) would not be available to the respondents as it specifically talks about order being passed ex-parte or by default. Since, the respondents were not a party to the application under Section 24, the order cannot be said to be passed ex-parte, it was argued. There was no impleadment application filed at any stage of proceedings under Section 24. Thus, recall application was not maintainable, it was contended.

Counsel for State-Respondents argued that right to statutory appeal does not take away the right to move a recall application. Reliance was placed on Rule 22 of the U.P. Revenue Code Rules, 2016 which mandates that an application under Section 24(1) of the Code must contain the details of contiguous plots and concerned tenure holders. Since the co-tenure holders were not impleaded, they could move a recall application.

Thus, the question for consideration before the Court was whether against an ex parte order passed in proceedings under Section 24 of U.P. Revenue Code, 2006, remedy of a statutory appeal being available, a recall application would not be maintainable at the behest of a non-party.

Relying on the judgment of the Apex Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others, the Court held that absence of express provisions with respect to review and recall of order will not take away the inherent powers of a Court or Tribunal to do the same for the “purpose of doing justice between the parties”.

“It is a fundamental principle of natural justice and a basic canon of jurisprudence that no adverse orders should be passed against a party without grant of an opportunity of hearing and against an order passed ex parte, the person concerned would have a right to seek recall. The distinction between a review and a recall petition is well established,” held the Court.

Consequently, the Court held a review or recall on procedural irregularities does not require adjudication on merits of the case. Establishing procedural error or illegality which goes to the root of the matter and would vitiate the proceedings, consequently invalidating any order passed therein, would be sufficient for Court or Tribunal to exercise their inherent power of recall.

With respect to the scheme of the UP Revenue Code, the Court held

“The aforestated scheme of the Act with regard to the settlement of boundary disputes, as would be seen from the procedure specified under Rule 22, indicates in unambiguous terms that a tenure holder of the contiguous plot would be a necessary party in the proceedings having a right to submit objections and also a right to be heard before an order is passed, confirming the demarcation report and concluding the proceedings.”

Accordingly, while dismissing the writ petition, the Court held that the private respondents being necessary parties to proceedings under Section 24, could invoke the inherent powers of the Tribunal for recall of the ex-parte order.

Case Title: Tarkeshwar And 2 Others vs. State Of U.P. and 5 Others [WRIT C No. ­ 13852/2023]

Case Citation: 2023 LiveLaw (AB) 232

Counsel For Petitioner: Sudhanshu Pande and Madan Ji Pandey

Counsel for Respondents: Ajit Kumar, Additional Advocate General, Abhishek Shukla, Amit Manohar and Amit Verma

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