1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO. 1733 OF 2008 IN WRIT PETITION NO.5699 OF 1991 Martinbai Ashish Bar. .. Applicant Vs Vijaya Vibhakar Potphode. .. Respondent -- Shri P.B. Shah for the Applicant. Shri Sagar Talekar for the Respondent. -- CORAM : A.S. OKA, J DATE : 29TH JANUARY, 2010. P.C. . Submissions of the learned counsel appearing for the parties were heard on the earlier date. This is a Civil Application filed by the Respondent in the Writ Petition, who is the original Plaintiff. The Respondent to this Application is the Petitioner in the Writ Petition and the Original Defendant. A suit for possession was filed by the Applicant under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ( hereinafter referred to as “the said Act of 1947”). The suit was contested by the Respondent. The suit was decreed by the trial court. An appeal preferred by the Respondent was dismissed and, therefore, a Writ Petition was filed by the Respondent. The Writ Petition was finally heard on 5th October, 2006. By the judgment and order dated 5th October, 2006, the Writ Petition was allowed and the decree passed in favour of the Applicant was set aside. 2 2. In the present application, a prayer is for setting aside the judgment and order passed by this Court on 5th October, 2006 and for restoration of the Writ Petition. In the application, it is stated that the Applicant engaged the services of an Advocate to represent her in the Writ Petition. In Paragraph 5 of the said Application, it is stated that whenever the Applicant made an inquiry, she was told by the Advocate that the Writ Petition may not come up for hearing and she would be informed as and when the Writ Petition comes up for hearing. She stated that on the inquiries were made, she learnt that the Writ Petition was finally decided on 5th October, 2006. The Applicant realised that her Advocate did not remain present and therefore, the Petition was finally decided without hearing the Applicant. 3. Learned counsel appearing for the Respondent raised a preliminary objection that the application is not maintainable inasmuch as the Writ Petition has been decided on merits. The learned counsel appearing for the Applicant relied upon Section 141 of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ) and submitted that the Writ Petition filed under Article 227 of the Constitution of India will be governed by the said Code. He submitted that under Rule 21 of Order XLI of the said Code, there are powers vested in the Court to set aside a decree passed in an appeal on the ground that the Respondent was prevented by a sufficient cause for remaining present at the time of hearing. In that behalf, he placed reliance on a decision of the Apex Court in the case of Puran Singh 3 & Ors. v. State of Punjab & Ors, [(1996)2 SCC 205]. He submitted that this Court is not powerless to recall its own order and to hear the Petition afresh. He submitted that a meritorious case cannot be allowed to suffer due to the absence of the Advocate. 4. I have given careful consideration to the submissions. The reliance is placed by the learned counsel appearing for the Applicant on Paragraph 11 of the decision of the Apex Court in the case of Puran Singh (supra) where it held thus:- “11. We have not been able to appreciate the anxiety on the part of the different courts in judgments referred to above to apply the provisions of the Code to writ proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High court under Article 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction f the High Court. It need not be impressed that different provisions and procedures under the Code are based on well-recognized principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious.” 4 5. The submission is that this Court is not powerless to set aside the order on the ground that the applicant was not heard as her Advocate remained absent. 6. It cannot be disputed that this Court has a power to recall its own orders. If a case is made out to do so, this Court can always recall its own orders. Under Article 227 of the Constitution of India, this Court exercises power of superintendence which is totally different from the Appellate power of this Court. The power of superintendence has to be exercised to ensure that the Courts subordinate to this Court remain in its own bounds. In fact, in the decision in the case of Puran Singh (supra), the Apex Court has observed that the procedure prescribed under certain provisions of the Code is responsible for delaying the delivery of justice and, therefore, the High Court should be left to adopt its own procedure for granting relief to the persons concerned. 7. In the present case, it is not the case of the Petitioner that while deciding the Petition finally, there is any error apparent on the face of record. It is not the case of the Applicant that any fraud is practiced by the Respondent. Perusal of the judgment of the this Court shows that the power of superintendence has been exercised on merits of the case. As stated earlier, the power of superintendence is not akeen to the appellate power and, therefore, the Applicant cannot draw support from the provisions of Order XLI for setting aside the final order passed in the Writ Petition on the 5 ground that a sufficient cause for absence is made out. Mere absence of a party to the Writ Petition at the time of hearing by itself is not a ground to set aside the judgment in writ jurisdiction under Article 227 of the Constitution of India. 8. In the circumstances, the prayer made by the Applicant cannot be acceded to. The remedy of the Applicant is to challenge the judgment and order in accordance with law. Hence, Civil Application is rejected. JUDGE ash