[Landmark Judgement] Sri Budhia Swain v. Supreme Court of India (1999)

Landmark Judgment Law Insider (1)

Published on: 29 September 2022 at 09:21 IST

Court – Supreme Court of India

Citation – Budhia Swain v. Gopinath Deb (1999) 4 SCC 396

Hon’ble Supreme Court of India has held that the Civil Courts and Tribunals may recall their orders, subject to the fact that the proceedings suffers lack of jurisdiction, apparent fraud / collusion, mistake, prejudice of fact or law. However, it is held that the power to recall a judgment must not be exercised where an alternate remedy is by way of appeal or revision is available.

Para – 8

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 reopening 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.

Drafted By – Abhijit Mishra

Key Words – Jurisdiction, Apparent Fraud, Orders, Civil Court or Tribunal, Alternative Remedy.

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