Sakshi ji,
I am not taking undue advantage here .....................................but, I still remember that you had once sent me a pm that ........................... 'Correct yr basics first! ........lol !!!!' ' . ...
Well! ...................... I bury that as a past gone bys.
Please don't consider this as if ................. I am soothing my hurt ego by NOT missing to give you an advise!! ... for a change !!
(All that I aaaamm saying that ................ while giving advise to others ............one doesn't have to pay from his/her pocket to be polite and sober!!! ...........rather it hardly costs a penny!!!.... So why not to practise being polte and sober!!!!)
Now ....... Comming to your Q ..........................
Your narrations are confusing ! ............. Who hasn't got opportunity to be heard in case proceedings?
You wrote ........ Dismissal Order .............. so .............. its the Applicant who's got aggrieved due to dismissal of application!! ............... Am I write? Please correct me if I am wrong in understanding your Q !!!
But still I won't say you haven't drafted your question neatly!!! ................. Anyways ............
My Advise:
Please Refer to Order 18 also in addition to sec 33 of CPC (argument is mandatory) and here is the latest caselaw, if that is useful to you. this talks of the change of presiding officer or/and missing to do oral arguments due to the same ..........
'Oral arguments are indispensable'
Rukhana Associates Vs. Respondent: E-Square Leisure Pvt. Ltd.
Bombay HC,
Decided On: 02.07.2010
URL: https://vivekkantawala.com/pdf/E-Square.pdf
Your Q :- Prayer Before the same Hon'ble Court to set aside the dismissal-order passed by same court !!!! …………….Is such prayer tenable?
On the front of jurisdiction: You can file such prayer but you may not want to !!!……….. its like breaking the head against the wall.
Inherent jurisdiction CPC sec 151 is to be seen in the light of …………. ex debitio justitiae only ……i.e only in the absence of express provisions of the Code. …….
No doubt powers under this sec 151 are wide and residuary but these are discretionary and not substantive one
Case law of SC : Budhia Swain v. Gopinath Deb
Justice R.C. Lahoti, opined that a court has a power to recall its own order under its inherent powers. The apex court held that the court has inherent powers to recall and set aside an order
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Obtained by fraud practiced upon the court,
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When the court is misled by the parties, or
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When the court itself commits a mistake, which prejudices a party.
But nowhere it says that court has to set aside order such an Order!!! ... This si the brutal crux of the provisions………….. It merely says that Court CAN but may or may not!!
So your application won’t get rejected for lack of jurisdiction …. But mayor may not succeed .... and finally you would go to appeal ... then why to waste the time???
Now ……………. As the Adv Gadbale has asked …. Please tell us how the party (either or both side) missed to do arguments before court even once.
