- (1.) This is an intra court appeal filed against the order dated 9.4.2014 whereby the recall application filed by the appellant (respondent no. 2 in the writ petition) has been rejected. The preliminary question to be decided by this Court is as to whether a Special Appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter referred to as the "Rules of the Court") would be maintainable against an order rejecting the recall application on merits.
(2.) Brief facts of this case are that the petitioners Thakur Bal Gopal Jee Maharaj and others had filed Civil Misc. Writ Petition No. 53870 of 1999 challenging an order dated 18.11.1999 passed by the Rent Control & Eviction Officer, Hathras under the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (U.P. Act No. XIII of 1972) (hereinafter referred to as the "Act No. XIII of 1972"). The appellant herein was respondent no. 2 in the said writ petition. By judgment and order dated 5.5.2010 passed by a learned Single Judge, the writ petition was allowed on merits after hearing the learned counsel for the writ petition, although the learned counsel for the respondents was not present even in the revised list. An application was filed under section 151 of the Code of Civil Procedure by the appellant herein (respondent no.2 in the writ petition) with the prayer to recall the order dated 5.5.2010 passed in writ petition no. 53870 of 1999. The said application was heard and rejected by the impugned order dated 9.4.2014, which is reproduced below:- "Order on Recall Application No.155396 of 2010 1. Heard Sri Swapnil Kumar, Advocate, holding brief of Sri J.K.Sharma, learned counsel appearing for the applicant. 2. There are ten counsels, whose names are shown in the cause list appearing on behalf of respondents and still none appeared, as a result whereof, writ petition was decided in absence of counsel for the respondents vide order dated 5.5.2010. 3. This application has been filed for recall of aforesaid order on behalf of respondents through their counsel Sri Jitendra Kumar Sharma, Advocate, stating that case could not be marked in his office. It is not the case that authority of other counsels have been withdrawn or none could mark the case. There is no justification, therefore, for non appearance of any of the so many counsels representing respondents. I, therefore, do not find any reason to recall order dated 05.05.2010. 4. Rejected."
(3.) We have heard Sri Anurag Khanna, learned counsel for the appellant as well as Sri Kshitij Shailendra, learned counsel for the contesting respondents and have perused the record. The relevant Chapter VIII Rule 5 of the Rules of the Court under which the Special Appeal is provided, is reproduced hereinbelow:- "CHAPTVER VIII MISCELLANEOUS PROVISIONS. 5. Special Appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of Appellate Jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction [or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of Appellate or Revisional Jurisdiction under any such Act] of one Judge".;