Kerala High Court
M/S Jain Housing And Construction Ltd vs Kerala Real Estate Regulatory ... on 7 January, 2022
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
Friday, the 7th day of January 2022 / 17th Pousha, 1943
UNNUMB.IA.NO.1/2022 IN WP(C) NO. 9816 OF 2021(B)
PETITIONER/4TH RESPONDENT:
REBY THOMAS, S/O.VARGHESE THOMAS, THACHENPARAMBIL REBY VILLA,
MUNDENCAVU, CHENGANNUR, ALAPPUZHA-689 121
RESPONDENTS/PETITIONER & RESPONDENTS 1-3:
1. M/S JAIN HOUSING AND CONSTRUCTION LTD. REGIONAL OFFICE AT JAIN
TUFNELL GARDEN, FLAT NO. 4082, RAJAGIRI VALLEY, CHITTETHUKARA,
NILAMPATHINJA MUGHAL ROAD, KAKKANADU, COCHIN-682 030, REPRESENTED BY
ITS AUTHORIZED SIGNATORY, MS. COLLEEN PETRIZ.
2. KERALA REAL ESTATE REGULATORY AUTHORITY TC 25/1379, CRA D-112, NEAR
PENTECOSTAL CHURCH PLAMOODU-CHARACHIRA ROAD, THIRUVANANTHAPURAM-695
003, REPRESENTED BY ITS SECRETARY.
3. THE SECRETARY (LEGAL), KERALA REAL ESTATE REGULATORY AUTHORITY, TC
25/1379, CRA D 112, NEAR PENTECOSTAL CHURCH, PLAMOODU-CHARACHIRA
ROAD, THIRUVANANTHAPURAM-695 003
4. THE SECRETARY, THRIKKAKARA MUNICIPALITY, NGO QUARTERS- MAVELIPURAM
ROAD, THRIKKAKARA, KAKKANAD,KERALA -682 030
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to recall the judgment
dated 08-12-2021 allowing withdrawal of the writ petition, to protect the
interest of justice and comply with precedents laid down by the Hon'ble
Supreme Court which are binding on this Hon'ble Court under Article 141 of
the Constitution of India.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and this Court's Judgment
dated 08-12-2021 and upon hearing the arguments of SMT.AYSHA ABRAHAM,
Advocate for the petitioner in IA/4th Respondent in WP(C), M/S.ARUN
THOMAS, JENNIS STEPHEN, VIJAY V. PAUL, KARTHIKA MARIA, DIVYA SARA GEORGE,
JAISY ELZA JOE & NANDA SANAL, Advocates for Respondent 1 in IA/Petitioner
in WP(C) and of M/S.C.M.NAZAR & SHAJI P.MATHEW, Advocate for Respondent 2
and 3 in IA/Respondent 1 and 2 in WP(C) and of SMT.REKHA AGARWAL,
Advocates for Respondent 4 in IA/Respondent 3 in WP(C), the court passed
the following:
P.V.KUNHIKRISHNAN, J
-------------------------------------
Unnumbered I.A of 2022
in
W.P.(C)No.9816 of 2021
-------------------------------------
Dated this the 7th day of January, 2022
ORDER
This unnumbered Interlocutory Application is filed under Rule 150 of the High Court Rules to recall the judgment dated 08.12.2021 to protect the interest of justice and to comply with the precedents laid down by the Hon'ble Supreme Court which are binding on this Court under Article 141 of the Constitution of India. It will be better to extract the judgment dated 08.12.2021:
"The counsel for the petitioner submitted that she wants to withdraw the writ petition.
Therefore, this writ petition is dismissed as withdrawn."
2. The petitioner wants to recall this judgment in the interest of justice and to comply with the precedents laid down by the Hon'ble Supreme Court which according to the petitioner is binding on this Hon'ble Court under Un numbered I.A 2022 in W.P.(C)No.9816/2021 2 Article 141 of the Constitution of India. When this application was filed, the Registry noted a defect which is extracted hereunder:
"Please verify whether petition under 150 of the HC Rules is the proper remedy for the relief sought."
3. The learned counsel for the petitioner gave a detailed reply which is extracted hereunder:
"The power to recall an order is an inherent power with this Hon'ble Court. In this case, the Applicant who was arraigned as the Respondent No.4 was not served a copy of the Petition in spite of this Hon'ble Court ordering issue of notice. Thereafter, the stay order was extended even when the Respondent No.4 remained unserved. Thereafter, the Petitioner withdrew the Petition after taking the benefit of 2 stay orders and this Court allowed the withdrawal without hearing the Respondent No.4 who is the only affected party. In such cases, the Hon'ble Supreme Court has stated that the correct course to be taken is to file an application for recall of an order.
Citations: -
Asit Kumar kar Vs. State of West Bengal (2009)2 SCC 703 Followed by the High Court of Kerala in Un numbered I.A 2022 in W.P.(C)No.9816/2021 3 Pushpangathan Vs. State of Kerala 2015(3)KLT 105 Shiyas K.B Vs. Manoj Paul & another 2018 KHC 339 Defect answered. May be sent to Bench."
4. Then the Deputy Registrar of this Court placed this unnumbered Interlocutory Application before this Court with following comments:
"This IA for recalling the judgment dated 8/12/21 in WPC 9816/21 being filed by the Petitioner who is the 4th respondent in WPC. Since the matter was "Dismissed as withdrawn"
clarification was sought by the Registry whether IA to recall judgment is the proper remedy. The counsel has answered vide page (2) and has requested to sent to Hon'ble Court."
5. Heard the learned counsel for the petitioner in this unnumbered Interlocutory Application.
6. The learned counsel for the petitioner argued the matter in detail. The counsel submitted that, it is the duty of this Court to go through the judgment referred in the Interlocutory application and pass orders. The counsel also submitted that Un numbered I.A 2022 in W.P.(C)No.9816/2021 4 the writ petition is allowed to be withdrawn without informing the petitioner who is the 4 th respondent in the writ petition. The counsel submitted that, till now there is no judicial misconduct but if the unnumbered petition is not considered in accordance with the judgment of the Apex Court, then there is judicial misconduct. The counsel also takes me through the judgments of the Apex Court which is referred in the affidavit along with the application. It is also submitted by the petitioner who is the 4th respondent in the writ petition that the copies of the petitions were not served to the 4 th respondent before disposing the above writ petition and before extending the stay order.
7. It is an unnumbered Interlocutory Application in which the prayer is to recall a judgment. The writ petition was allowed to withdraw based on the prayer of the petitioner. In such situation, according to this Court, a petition under Rule 150 of the High Court Rules is not Un numbered I.A 2022 in W.P.(C)No.9816/2021 5 maintainable to recall the judgment. Hence, the objection raised by the Registry is perfectly justified. In an unnumbered Interlocutory Application, this Court need not consider the points raised or decision cited in the affidavit. According to me, this application is not maintainable.
Therefore, this Interlocutory Application is dismissed upholding the defect raised by the Registry.
Sd/-
P.V.KUNHIKRISHNAN JUDGE DM 07-01-2022 /True Copy/ Assistant Registrar