Satya Poot Mehrotra, J. - (1.) THE aforementioned application has been filed on behalf of the petitioner/applicant, inter alia, praying for recall of the order dated 25th January, 2006 passed by me on Civil Misc. Petition/Application No. 52 of 2006, under Article 227 of the Constitution of India and for hearing and deciding the preliminary objection of alternative remedy raised by the respondents. The said order dated 25th January, 2006 is reproduced below: - - Shri Santosh Kumar, learned Counsel for the petitioner/applicant states that in view of the objection raised by the learned Counsel for the caveators, it is evident that the impugned order dated 17.1.2006 is appealable under Order XLIII, Rule 1(r) of the Code of Civil Procedure, and in the circumstances, the petitioner/applicant may be permitted to withdraw the present petition/application under Article 227 of the Constitution of India with liberty to pursue the aforementioned alternative remedy of appeal. In view of the statement made by Shri Santosh Kumar, learned Counsel for the petitioner/applicant, the present petition/application under Article 227 of the Constitution of India is dismissed as withdrawn with liberty to pursue the alternative remedy of appeal against the impugned order dated 17.1.2006. Shri Santosh Kumar, learned Counsel for the petitioner/applicant further prays that the certified copy of the impugned order dated 17.1.2006, filed as Annexure -9 to the present petition/application, may be directed to be returned to the petitioner/applicant so as to enable him to pursue the alternative remedy of appeal. Accordingly, it is directed that the certified copy of the impugned order dated 17.1.2006, filed as Annexure -9 to the petition/application, will be returned to Shri Santosh Kumar, learned Counsel for the petitioner -applicant within two days. It may be mentioned that typed copy of the said impugned order dated 17.1.2006 has also been filed as Annexure -9 to the present petition/application, and the same will be retained on record. Certified copy of this order will be issued to the learned Counsel for the parties on payment of usual charges within 24 hours.
(2.) THE aforementioned Recall Application is supported by an Affidavit, sworn by Mohd. Tahir Khan (petitioner/applicant) on 5th February, 2006. It is, inter alia, stated in the said affidavit that during the hearing of the petition/application under Article 227 of the Constitution of India, the contesting respondents raised an objection that the said petition/application was not maintainable on the ground of availability of alternative remedy of appeal; and that under mis -conception, the petition/applicant withdrew the petition/application for filing appeal which prayer was granted by the Court.
(3.) IT is, inter alia, further stated in the said affidavit that subsequently after reconsidering the question, the petitioner/applicant is advised to state that the petition/application under Article 227 of the Constitution of India is maintainable, and the alleged alternative remedy of appeal is not available; and that under the circumstances, the objection raised by the respondents deserves to be decided by the Court after hearing both the parties.;