Recall application - points to remember
V.N.K. MENON
(Querist) 06 August 2013
This query is : Resolved
(I) Background:This is employment case. WPC was filed in 2006 challenging labour court award. Employee filed 17-B application under I.D. Act for interim relief. Single bench rejected relief. LPA was filed in Division bench which set aside the order of Single bench & Relief granted by Div. Bench under a consented order. The employee was posted to a remote place. Taking advantage of his absence and without giving leave or paying expenses, the employer filed in the cloak of clarification two applications making frivolous claims which was allowed by the Division Bench.
The advocate (proxy in the absence of main counsel) of the employee agreed to the frivolous claims. When the employee came to know about the situation, his main counsel filed a revision petition. This was dismissed so also SLP in Apex Court. When the employee came after retirement he examined the records in the court and it was found that he was not represented properly. The employee started pursuing the case in person. It was also found that (1) the impugned order is contrary to statute as it is attachment of retiral benefits – proviso (g) of Sec.60(1) CPC. (2) relying upon Apex Court judgment, in a consented order court does not adjudicate upon the rights of the parties nor lay down any principle.
The main WPC is onboard and has not reached finality. In the circumstances, is it proper to file recall application in the High court u/s 151 CPC? There is exactly a similar case where LPA and SLP were dismissed and when later it was found that order had been obtained by playing fraud, recall was allowed by High Court and was approved by Apex Court by rejecting O.P.’s SLP which was filed. I hope I have explained threadbare.
There is a similar case decided by Apex Court that if an order is obtained by playing fraud, the said order can be challenged in any court at any time.
Request valued opinion/ guidance/ suggestion of friends and experts about filing of recall application u/s 151 cpc. Shall appreciate immediate attention, please.
(II) How to file amendments to revision petition. A provision was made in revision petition to the effect that with the leave of the court, I shall make amendments, additions, deletions. Any point to be kept in mind while doing so.
I am grateful to all the members/ colleagues/ experts for the valuable guidance given in the past.
Devajyoti Barman
(Expert) 06 August 2013
I do not think the case needs any amendment at all. You can agitate all the points raised here at the time of hearing.
V.N.K. MENON
(Querist) 07 August 2013
May I add one thing. The case marked (I) is in High Court which is different from case marked (II) which is in Sessions Court against order of a magistrate court.
In the context whether Mr. Barman has any valuable guidance, please?
Thanks & regards.
Raj Kumar Makkad
(Expert) 08 August 2013
You can definitely add the desired amendment in the ongoing case.
