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PETITIONER: SRI BUDHIA SWAIN & ORS.

       Vs.

RESPONDENT: GOPINATH DEB & ORS.

DATE OF JUDGMENT:       07/05/1999

BENCH: A.P.Misra, R.C.Lahoti

JUDGMENT:

     R.C.  LAHOTI, J.

     The  respondent  no.1  is a deity  seated  at  village Bishwanathpur  in  the District of Puri.  On an  application filed  by the respondent no.1 under Sections 6 and 7 of  the Orissa  Estates Abolition Act, 1951 (hereinafter ’the  Act’, for  short), the Estate Abolition Collector-cum-  Additional Tashildar  passed  an order of settlement dated 2.4.1966  in favour  of  respondent  no.1 settling the lands  covered  by khata  numbers  431  & 438 of village  Bishwanathpur.   Rent schedule  was issued pursuant to the order of settlement and rent  was realised from the respondent no.1 from the date of settlement.  There was no appeal preferred against the order dated  2.4.1966 and thus the order of settlement achieved  a finality.

     On  24.7.74  the  appellants, 12 in  number,  who  are residents  of  village Panibhandar, District Puri  filed  an application  seeking review of the order of settlement dated 2.4.66.    The  only  ground  for   review  raised  in   the application  was  that  the  public   notice  of  the  claim preferred  by  the  respondent no.1 was not  served  in  the locality  as prescribed.  The O.E.A.  Collector purported to exercise  the power of review under Section "151 CPC" having formed  an  opinion that the proclamation was  not  properly done  in  accordance with the law as the order-sheet of  the case  did  not  disclose the manner  of  proclamation.   The respondent  no.1  preferred an appeal before the  Additional District  Magistrate  (Land  Records) Puri,  who  formed  an opinion  that  the  O.E.A.    Collector  was  not  expressly conferred  with  any power of review but the order could  be justified  as one of recalling of an earlier order which had occasioned  failure of justice.  If the mandatory provisions of  Section  8A  (2) of the Act were not followed  then  the order  dated  2.4.1966 was rendered a nullity.  The  learned ADM  observed that the claim petition by respondent no.1 was filed  some time in 1963, i.e.  beyond the prescribed period of six months.  The learned ADM also observed that the claim preferred by the respondent no.1 should have been treated as a  lease  case  and  not  as a  claim  case.   At  the  end, sustaining the setting aside of the order dated 2.4.1966 the learned  ADM remanded the case to the O.E.A.  Collector-cum- Additional Tahsildar for disposal afresh in the light of the observations  made by him.  The respondent no.1 preferred  a petition  under  Article 226/227 of the Constitution  before

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the High Court of Orissa.  The petition has been allowed and the  orders of O.E.A.  Collector and the ADM have both  been set  aside  by  the High Court forming an opinion  that  the power  to  review  as assumed by O.E.A.  Collector  did  not exist  and the circumstances of the case did not warrant the exercise  of power to recall an earlier order passed by  the O.E.A.    Collector   which  was   one  passed  within   the jurisdiction  of the O.E.A.  Collector being set aside, more so  when  the  averments  made in  the  application  seeking review/recall  did  not go beyond alleging  an  irregularity merely  or  at  the  worst  an  illegality.   The  aggrieved appellants,   the   12   villagers   who  had   sought   for review/recall,  have  filed  this appeal  by  special  leave impugning  the  order of the High Court.  Having  heard  the learned  counsel for the parties we are of the opinion  that no  fault can be found with the order of the High Court  and the appeal therefore deserves to be dismissed.

     The  only  provision  for review in the Act is  to  be found  in Section 38A whereunder a review may be sought  for within  one year from the date of the decision or order  but only  on  the  ground  that there has  been  a  clerical  or arithmetical mistake in the course of any proceedings in the Act.   It  was also conceded by the learned counsel for  the appellants  that the proceedings initiated by the appellants were  certainly not under Section 38A.  It was also conceded at  the  bar  that  the  subsequent  action  of  the  O.E.A. Collector  could  be  sustained only if supportable  by  the power to recall.  What is a power to recall?  Inherent power to  recall its own order vesting in tribunals or courts  was noticed  in  Indian Bank Vs.  M/s Satyam Fibres  India  Pvt. Ltd.   1996 (5) SCC 550.  Vide para 23, this Court has  held that  the courts have inherent power to recall and set aside an  order  (i) obtained by fraud practised upon  the  Court, (ii)  when the Court is misled by a party, or (iii) when the Court itself commits a mistake which prejudices a party.  In A.R.   Antulay  Vs.   R.S.  Nayak & Anr.  AIR 1988  SC  1531 (vide para 130), this Court has noticed motions to set aside judgments  being permitted where (i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact  that a necessary party had died and the estate was not represented,  (ii) a judgment was obtained by fraud, (iii) a party  has  had no notice and a decree was made against  him and  such  party approaches the Court for setting aside  the decision ex debito justitiae on proof of the fact that there was  no service.  In Corpus Juris Secundum (Vol.  XIX) under the  Chapter "Judgment- Opening and Vacating" (paras.265  to 284  at  pages  487-510)  the law on the  subject  has  been stated.   The grounds on which the courts may open or vacate their  judgments  are  generally matters  which  render  the judgment void or which are specified in statutes authorising such  actions.  Invalidity of the judgment of such nature as to render it void is a valid ground for vacating it at least if  the  invalidity is apparent on the face of  the  record. Fraud  or collusion in obtaining a judgment is a  sufficient ground  for  opening or vacating it.  A judgment secured  in violation  of  an  agreement not to enter  judgment  may  be vacated  on  that ground.  However, in general,  a  judgment will  not  be opened or vacated on grounds which could  have been  pleaded  in the original action.  A motion  to  vacate will  not be entered when the proper remedy is by some other proceedings,  such as by appeal.  The right to vacation of a judgment  may be lost by waiver or estoppel.  Where a  party injured  acquiesces  in  the rendition of  the  judgment  or

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submits to it, waiver or estoppel results.  In our opinion a tribunal  or a court may recall an order earlier made by  it if (i) the proceedings culminating into an order suffer from the  inherent  lack  of  jurisdiction   and  such  lack   of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the  court  prejudicing  a  party or  (iv)  a  judgment  was rendered in ignorance of the fact that a necessary party had not  been  served at all or had died and the estate was  not represented.   The  power to recall a judgment will  not  be exercised  when the ground for re-opening the proceedings or vacating  the  judgment was available to be pleaded  in  the original action but was not done or where a proper remedy in some  other proceeding such as by way of appeal or  revision was  available  but  was  not availed.  The  right  to  seek vacation  of  a judgment may be lost by waiver, estoppel  or acquiescence.  A distinction has to be drawn between lack of jurisdiction  and a mere error in exercise of  jurisdiction. The former strikes at the very root of the exercise and want of  jurisdiction may vitiate the proceedings rendering  them and  the  orders passed therein a nullity.  A mere error  in exercise  of jurisdiction does not vitiate the legality  and validity  of  the proceedings and the order  passed  thereon unless  set  aside  in the manner known to law by  laying  a challenge  subject  to the law of limitation.  In  Hira  Lal Patni Vs.  Sri Kali Nath AIR 1962 SC 199, it was held :-

     ".......The  validity of a decree can be challenged in execution  proceedings  only  on the ground that  the  court which passed the decree was lacking in inherent jurisdiction in  the  sense  that it could not have seisin  of  the  case because  the  subject  matter  was  wholly  foreign  to  its jurisdiction  or that the defendant was dead at the time the suit  had  been  instituted or decree passed, or  some  such other  ground  which could have the effect of rendering  the court  entirely  lacking in jurisdiction in respect  of  the subject  matter  of the suit or over the parties to it."  As already  noted the appellants sought for review or recall of the order from the O.E.A.  Collector solely by alleging that the  notice  which  was  required to  be  published  in  the locality  before  settling  the  land   in  favour  of   the respondent no.1 was not served in accordance with the manner prescribed   by   law.   The   appellants  did   not   plead ‘non-service  of the notice’ but raised objection only  with regard  to ‘the manner of service of the notice’.  The  High Court  had  called for and perused the record of the  O.E.A. Collector and noted that the notice was issued on 15.12.1963 inviting  public  objection.   The notice was  available  on record but some

     of  its pages were missing.  The O.E.A.  Collector had noted in his order dated 23.2.1966 as under :-.lm20

     "It  is  only  due  to missing of some  pages  of  the proclamation  including the last page over which the  report of  the  process server was there, a scope was available  to the  objectors  to  file  this petition.   Under  the  above circumstances,   it  is  not   necessary  to  issue  another proclamation  and entertain further objection since the case is being heard and going to be finalised on 14.3.66."

     The  O.E.A.   Collector  was satisfied of  the  notice having  been  published.  Assuming that the notice  was  not published in the manner contemplated by law, it will at best

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be  a case of irregularity in the proceedings but  certainly not  a  fact  striking  at  the  very  jurisdiction  of  the authority passing the order.  The Appellate Authority, i.e., the  ADM has in his order noted two other contentions raised by  the appellants, viz., (i) the application for settlement by  the respondent no.1 was not filed within the  prescribed time, and (2) the application should have been treated as an application  for lease and should not have been treated as a claim  case.   None  of  the two pleas  was  raised  by  the appellants  in  their pleadings.  None of the two was  urged before  O.E.A.  Collector.  Therefore there was no  occasion to  consider  those pleas.  Still we may make it clear  that none of the two pleas could have been a ground for recalling the  order  which  was  otherwise  within  the  jurisdiction conferred on the O.E.A.  Collector.  Though it is a disputed question  of  fact,  as noted by the High  Court,  that  the application  by  the  respondent no.1 was filed  within  the prescribed  time or not.  Nevertheless, we are very clear in our  mind that an order made on an application filed  beyond the  time  prescribed for filing the same may be an  illegal order  but  is  certainly  not   an  order  passed   without jurisdiction.

     A  suit or proceeding entertained and decided in spite of  being barred by limitation is not without  jurisdiction; at  worst  in  can be a case of  illegality.   In  Ittyavira Mathai Vs.  Varkey Varkey & Anr.  - AIR 1964 (Vol.15) SC 907 this Court has held:-

     ".....Even  assuming that the suit was barred by time, it  is  difficult  to appreciate the contention  of  learned counsel  that  the  decree can be treated as a  nullity  and ignored in subsequent litigation.  If the suit was barred by time  and  yet  the  Court decreed it, the  court  would  be committing  an illegality and therefore the aggrieved  party would be entitled to have the decree set aside by preferring an  appeal against it.  But it is well settled that a  Court having  jurisdiction over the subject matter of the suit and over  the parties thereto, though bound to decide right  may decide  wrong;   and  that even though it decided  wrong  it would not be doing something which it had no jurisdiction to do.   It had the jurisdiction over the subject-matter and it had  the jurisdiction over the party and, therefore,  merely because  it  made an error in deciding a vital issue in  the suit,  it  cannot  be  said that it  had  acted  beyond  its jurisdiction.    As  has  often   been  said,  courts   have jurisdiction  to  decide right or to decide wrong  and  even though  they  decide  wrong, the decrees  rendered  by  them cannot be treated as nullities...."

     So  also  whether  an  application  by  way  of  claim petition  or an application for grant by way of lease,  both were  entertainable by the O.E.A.  Collector and it was  for him  to  decide  which  way  he   chose  to  deal  with  the application.   In any case, he had the jurisdiction to  deal with  the  application.   No case was made  out  before  the O.E.A.   Collector  and the ADM for recalling the  order  of settlement  dated  2.4.1966.  The order did not suffer  from lack of jurisdiction or from error of jurisdiction much less an  inherent one.  The High Court has rightly set aside  the order  dated 2.2.1976 passed by the O.E.A.  Collector as the same  was without jurisdiction.  In passing the order  dated 2.2.1976  O.E.A.   Collector  had exercised  a  jurisdiction which the law did not vest in him.  The order could not have

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been sustained by the ADM in

     appeal.   No fault can be found with the view taken by the  High  Court.  The appeal is therefore dismissed  though without any order as to the costs.