CMAppl 46/07 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. CIVIL MISC. APPLICATION NO.46/07 In S.B. CIVIL SECOND APPEAL NO.333/04 Union of India Versus Shri Laxmi Narain Yadav DATE OF ORDER : 30/01/2008 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Hanuman Choudhary, for applicant None present for respondent *** Instant misc. application has been filed by defendant-applicant u/s.151 CPC for recalling of order dated 5th August, 2004 passed by this court in Second Appeal No.333/04. Learned court of appeal while upholding guilt of non-petitioner-plaintiff Laxmi Narain Yadav partly allowed his appeal vide judgment & decree dated 2nd September, 1997 with an observation that departmental authorities will be free to pass appropriate order other than removal/dismissal which has been inflicted upon him - against the said judgment & decree dated 2nd September, 1997, the appellant-defendant preferred Second Appeal No.333/04. It appears that defects were not removed for sufficient long time and some information also transpires that non-petitioner-plaintiff has expired. This court took note of the fact as well CMAppl 46/07 [2] legal representatives brought on record, but it has also been observed and examined by this court that no substantial question of law arises in the second appeal and taking note thereof, the appeal preferred by appellant-defendant was dismissed on 5th August, 2004. In the instant misc. application, the appellant-defendant has submitted that there was some wrong information available in their office that non-petitioner-plaintiff has expired. As such, the statement made at the relevant time was incorrect and on the basis of wrong information available in their office, as such order by which their appeal has been dismissed dated 5th August, 2004 deserves to be recalled. Suffice it to say that while taking note of information transmitted to this court by the counsel appearing for the appellant about the fact that non-petitioner-plaintiff has expired and his legal representatives were not brought on record, this court in addition to also examined as to whether any substantial question arises in the second appeal which calls for consideration and it has been specially observed that no substantial question of law arises in addition to the fact referred to supra the appeal has been dismissed on 5th August, 2004. Since it has been dismissed on merits as well, even if appellant may be technically right CMAppl 46/07 [3] it will not be considered to be dismissal on technical ground and accordingly, the same cannot be recalled by this court. As regards the submission made by the counsel that no order in pursuance of judgment of court of appeal dated 2nd September, 1997 has been passed so far. The appellant is always free to pass appropriate order as observed by the court of appeal in judgment dated 2nd September, 1997, in accordance with law. With the above observation, the misc. application stands disposed of. [AJAY RASTOGI], J. FRBOHRA46CMAppl2007 30-1.doc