Recalling Application – Free Legal Advice Online

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That’s a very specific and important legal topic. The power of courts in India to recall an order is distinct from the power to review or appeal an order.

Here is a breakdown of the concept of recalling an order by Indian courts, which is primarily rooted in their inherent powers:
🏛️ Recalling of Order by Indian Courts

1. The Legal Basis: Inherent Powers
The power to recall an order is generally exercised under the inherent powers of the court, rather than a specific, explicit statutory provision for the grounds of recall itself.
* Civil Courts: This power is primarily derived from Section 151 of the Code of Civil Procedure, 1908 (CPC), which states:
   > “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
   >
* Supreme Court: The Supreme Court of India exercises this inherent power under Article 142 of the Constitution (“Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.”) and its own Rules, to do complete justice.
* Tribunals: Many Tribunals (like NCLAT) are also recognized by judicial interpretation to have inherent power to recall their own orders, often under specific rules like Rule 11 of the NCLT/NCLAT Rules.

2. Difference Between ‘Recall’ and ‘Review’
The Supreme Court and other appellate authorities have clearly distinguished between the power to recall and the power to review:
| Feature | Power to Recall (Setting Aside) | Power to Review (Re-examination) |
|—|—|—|
| Objective | To annul the judgment entirely, often on procedural grounds. | To re-examine the original decision for errors apparent on the face of the record. |
| Legal Basis | Inherent Power (S. 151 CPC, Art. 142) – Not expressly defined grounds. | Statutory Power (S. 114 read with Order XLVII of CPC, Art. 137 of Constitution). |
| Grounds | Procedural errors, lack of jurisdiction, fraud, or being unheard. | Discovery of new evidence, error on face of record, or any other sufficient reason. |

3. When a Court Can Recall its Own Order
A court exercises its power to recall only in very limited and specific circumstances, generally falling under the following categories:
* Lack of Jurisdiction (Patent): If the order was passed by the court or tribunal without the authority to hear the case (i.e., inherent lack of jurisdiction).
* Procedural Error/Violation of Natural Justice:
   * The order was passed ex-parte (in the absence of one party) without giving the aggrieved party an opportunity to be heard.
   * The court made a mistake, such as dismissing the case due to a technical error.
   * A necessary party was not served or not made a party to the proceedings.
* Fraud or Collusion: The judgment was obtained by practicing fraud or misrepresentation upon the court.
> Key Principle: The power to recall is not meant to allow a court to re-hear the case on its merits just because one party disagrees with the judgment. That falls under the power of review (if grounds exist) or the remedy of appeal to a higher court.

The process involves filing a formal application, and the success of the application depends entirely on establishing a procedural error, not a disagreement with the judgment’s merits.

Here is a breakdown of the process and the relevant legal provisions for filing a Recall Application in Indian Courts:

📜 Filing a Recall Application in Indian Courts
1. The Application: Miscellaneous Application (MA)
The request to recall an order is typically made by filing a specific application, often termed a Miscellaneous Application (MA) or simply a Recall Application, in the same court that passed the original order.
* Civil Courts/High Courts (General): The application is usually filed under Section 151 of the Code of Civil Procedure, 1908 (CPC), citing the court’s inherent power to secure the ends of justice and prevent the abuse of the court’s process.
* Supreme Court (Specific): In the Supreme Court, a recall request may be filed as a Miscellaneous Application (MA), often invoking Article 142 (power to do complete justice) in conjunction with other provisions, though its scope is very narrow and distinct from a Review Petition.
* Criminal Courts: The power of recall in criminal matters is highly restricted by Section 362 of the Code of Criminal Procedure, 1973 (CrPC), which prohibits a court from altering or reviewing its judgment or final order once signed, except to correct a clerical or arithmetical error. Therefore, recall is only permitted in the narrowest procedural instances (e.g., if the judge passed the order without hearing the required party on the same day due to an administrative error).

2. Primary Grounds for a Recall
The application must strictly limit itself to explaining one of the procedural grounds that prevented the aggrieved party from presenting their case, effectively arguing that the order was an injustice due to procedure, not substance.
| Primary Grounds for Recall | What it Means |
|—|—|
| Violation of Natural Justice | The party was not served with the notice, or was not given a fair opportunity to be heard (e.g., the matter was dismissed ex-parte because the advocate was absent due to compelling circumstances and the court was misled). |
| Court was Misled / Fraud | The order was obtained by a party practicing fraud upon the court, or the court was misled by a party’s misrepresentation of facts. |
| Error by the Court | The court itself committed a procedural or factual mistake that prejudiced a party (e.g., dismissing a case that was already fixed for hearing, based on an incorrect noting by the court staff). |
| Lack of Jurisdiction | The order was passed by a court or tribunal that patently lacked the jurisdiction to pass that order. |

3. Key Distinction: Recall vs. Review vs. Appeal
It is vital to understand that a Recall Application cannot be used as a substitute for an Appeal or a Review Petition:
| Action | Purpose | Legal Basis |
|—|—|—|
| Recall | To annul the order due to a procedural error or violation of natural justice. | Inherent Power (S. 151 CPC, Art. 142) |
| Review | To re-examine the decision due to an error apparent on the face of the record or new evidence. | Statutory Power (Order XLVII CPC, Art. 137) |
| Appeal | To challenge the merits of the judgment before a higher court. | Specific Statutory Provisions (e.g., S. 96 CPC) |
> Crucial Note: If the ground for seeking relief (e.g., fraud, non-service) was available to the party during the original proceedings but they failed to avail it, the court may dismiss the recall application. The inherent power under Section 151 CPC is only exercised when no other specific remedy is provided elsewhere in the law.


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