MANMOHAN SINGH, J. - (1.) THE abovementioned application has been filed by the petitioner under Order IX, Rule 9 read with Section 151 CPC for recalling of the judgment dated 25th April, 2012 passed by this Court and further for grant of an opportunity of being heard.
(2.) IT is stated in the application that being aggrieved by the award dated 25th January, 2006 the petitioner filed the petition under Section 34 of the Arbitration & Conciliation Act, 1996 and the same was admitted and upon completion of pleadings, it was listed in the category of 'Finals' vide order dated 14th May, 2009. The present Advocate for the petitioner filed his vakalatnama on 17th March, 2012. Thereafter, he filed an application for inspection of the Court record and came to know that the matter was pending. Since the hard copy of the Court record could not be made available for inspection, so the position of the case was ascertained by the Advocate through e-inspection. He kept surfing the net regularly but his name was not reflected in the list throughout. However, on the Court's website, it was shown that the matter was 'pending'. On 18th August, 2012 around 10.00 a.m., he again surfed the net and was shocked to find that the matter was disposed on 25th April, 2012. Therefore, he downloaded the order dated 25th April, 2012 and filed an urgent application for inspection to ascertain the actual position but the vakalatnama filed by the Advocate could not be found in the Court record and was not lying under objection. The petitioner came to know from the order that the matter was heard on 9 th April, 2012. However, when he surfed the net on 7th April, 2012 in the evening, his name was not reflected. It is also submitted in the application that on the personal front also, the learned counsel was preoccupied by some unfortunate incidents; like, his wife being in advance stage of pregnancy and was suffering from various Moreover, on 10th April, 2012 his car was stolen (not complications. recovered till date) and the car contained lots of important documents, including Court files, books etc., leaving him handicapped. On 18th August, 2012, for the first time, it came to his knowledge that the order dated 25th April, 2012 was passed. As his name was not reflected in the cause-list and for several other reasons mentioned above, he submits that his non- appearance was unintentional. The petitioner has a good case; in all likelihood would succeed in the matter and also the balance of convenience lies in his favour.
(3.) REPLY to this application was filed by the respondents wherein it is stated that the present application was filed on 23rd August, 2012, i.e. four months after the judgment was passed on 25th April, 2012 without seeking condonation of delay for filing the said application. In the matter of Budhia Swain & Ors. Vs. Gopinath Dev & 0rs., reported in (1994) 4 SCC 396, the Apex Court laid down the criteria for review/recall of order. The present application is not maintainable, as it does not fall under any of those criteria and is liable to be dismissed in limine. The respondent further submits that the petitioner has tried to lay the entire blame on the Registry of this Court for not mentioning the name in the cause-list. It is the admitted position that the judgment dated 25th April, 2012;