Page No.# 1/11 GAHC020004012026 2026:GAU-NL:454 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : I.A.(Civil)/115/2026 THE BRANCH MANAGER, HDFC ERGO INSURANCE COMPANY LIMITED ADDRESS - MAYUR GARDENS GR FLR, OPPOSITE TO RAJIVE BHAVAN ABC GS ROAD GUWAHATI - 781005, ASSAM (REPRESENTED BY SENIOR MANAGER) VERSUS SMTI. SUNITA GHOSH AND 4 ORS W/O SHRI ATISH KUMAR GHOSH, R/O DIJU BASTI, P.O. MISSA, NAGAON, ASSAM - 782138 2:SHRI ATISH KUMAR GHOSH S/O SATISH KUMAR GHOSH R/O DIJU BASTI P.O. MISSA NAGAON ASSAM - 782138 3:HINDUSTAN CARGO SERVICE REPRESENTED BY PUJA JAIN PROPRIETOR ADDRESS - GROUNG FLOOR NR ABC PETROL PUMP BIR ARBAR BELTOLA KAMRUP ASSAM - 781029. (OWNER OF THE TATA ULTRA BEARING REGISTRATION NO. AS 01KC4539) Page No.# 2/11 4:SHRI SURENDRA KR. MAHATO ADDRESS - 1/H/2 MADAN MOHAN LANE KOLKATA. ALTERNATE ADDRESS - C/O HINDUSTAN CARGO SERVICE GROUND FLOOR NR ABC PETROL PUMP BIH ARBAR BELTOLA KAMRUP - 781029 (DRIVER OF TATA ULTRA BEARING REGISTRATION NO. AS 01KC4539) 5:SHRI RAJBIR SHOME S/O RAMAKANTA SHOME R/O HOUSE NO. 146 BAHULAL KACHARI COLONY NAGALAND DIMAPUR - 79711 Advocate for the Petitioner : TAKA KICHU, AKALI ACHUMI,JAMES NEWMAI Advocate for the Respondent : P. B. CHHETRY, R/1 & 2, BEFORE HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER Advocates: For the Applicant : Mr. Taka Kichu For the Respondent Nos. 1 & 2 : Mr. P.B. Chhetry For the Respondent Nos. 3 & 4 : Mr. Y.P. Gupta Date on which Judgment was reserved : NA Date of pronouncement of Judgment : 01.09.2026 Whether the pronouncement is of the : NA operative part of the Judgment? Whether the full Judgment has been : NA pronounced? J U D G M E N T & O R D E R ( O R A L) 1. The present application under Section 151 of the CPC has been filed Page No.# 3/11 by the Applicant/HDFC ERGO Insurance Company Limited praying for recall of the judgment and order dated 09.02.2026 passed in MACApp./7/2024. 2. Heard learned counsel for the Applicant, Mr. Taka Kichu. Also heard Mr. P.B. Chhetry, learned counsel for the Respondent Nos. 1 and 2 as well as Mr. Y.P. Gupta, learned counsel for the Respondent Nos. 3 and 4. 3. The case of the Applicant herein is that the Respondent Nos. 1 and 2 being the Claimants filed MACApp./7/2024 against the judgment and order dated 16.08.2024 passed by the learned MACT Dimapur before this Court. 4. The matter was listed on 14.11.2024 for the first time and this Court, by order dated 14.11.2024, issued notice to the opposite parties returnable by 4 (four) weeks. 5. Thereafter when the matter was listed on 20.06.2025, Ms. Angap Konyak entered appearance for the Applicant/HDFC ERGO Insurance Company on behalf of her senior, Mr. Taka Kichu and sought 3 (three) weeks’ time to file vakalatnama and affidavit-in-opposition, if so advised. Thereafter, on 28.07.2025, when the matter was listed again the name of the engaged counsel was not reflected in the cause list as the engaged counsel had inadvertently failed to file his vakalatnama and as such, the engaged counsel failed to appear when the matter was called. 6. The counsel for the Applicant also submits that the matter was listed again on 12.08.2025, 29.08.2025, 16.09.2025 and 13.10.2025, and on all Page No.# 4/11 such dates the name of the engaged counsel was not reflected in the cause list as the Vakalatnama was still not filed by the engaged counsel. 7. Thereafter when the matter was listed on 13.11.2025 and 09.12.2025, the engaged counsel did not appear as he was out of station due to a medical emergency. 8. On 09.02.2026, the Appeal was listed for final hearing, however, on the day of hearing the engaged counsel was still in Delhi attending to the medical emergency of his father-in-law and as such, MACApp./7/2024 was disposed of without representation of the Applicant/HDFC ERGO Insurance Company. 9. The learned counsel for the Applicant submits that the Respondent No. 3/Applicant was not effectively represented during the hearing and the judgment dated 09.02.2026 came to be passed without the Applicant having an effective opportunity of being heard. 10. Learned counsel for the Applicant by relying on the case of Rafiq & Anr. v. Munshilal & Anr reported in (1981) 2 SCC 788 submits that in the cited case the Supreme Court was adjudicating a similar case and the Supreme Court has observed that in such cases, the only one who would suffer, would not be the lawyer who did not appear, but the party whose interest he represented. The problem that is to be addressed is whether it is proper that the party should suffer for the inaction, deliberate omission or misdemeanour of his agent. The answer obviously is in the negative. Maybe the learned advocate absented himself deliberately or intentionally. However, the court cannot be a party to an innocent party suffering Page No.# 5/11 injustice merely because his chosen advocate defaulted. The Hon’ble Supreme Court, therefore, directed the appeal to be restored to its original number in the High Court and to dispose of the same in accordance with law. 11. In view of the above settled position of law, learned counsel submits that the Applicant should not be made to suffer because of the negligence of the counsel and he prays that the instant application may be allowed and the judgment and order dated 09.02.2026 passed in MACApp./7/2024 may be recalled and MACApp./7/2024 may be restored to file and heard afresh. 12. On the other hand, Mr. P.B. Chhetry, the learned counsel appearing for the Respondent Nos. 1 and 2/Claimants has strongly opposed the application of the Applicant by stating that the instant application is not maintainable in the present form as no Vakalatnama was filed in MACApp./7/2024 authorizing any counsel to represent the Applicant. By referring to paragraph 11 of the judgment and order dated 09.02.2026, the learned counsel submits that this Court had observed that the Respondent No. 3/Applicant had not appeared before the Court in spite of notice. The Appellant had taken steps by dasti and compliance affidavit was filed and by an order dated 05.06.2025, this Court had held that notice on Respondent No. 3 was complete. 13. Learned counsel submits that the aforesaid finding clearly establishes the fact that due notice had been served upon the Applicant. It is not the case of the Applicant that the notice/summons was not duly Page No.# 6/11 served. Though a prayer was made on 20.06.2025 by the counsel of the Applicant seeking 3 (three) weeks’ time to file Vakalatnama, however, on 23.07.2025 when the matter was listed next, no Vakalatnama was filed by them nor any further prayer was made in this regard. 14. Learned counsel for Respondent Nos. 1 and 2 submits that pursuant to the appearance of a counsel for the Respondent No. 3/Applicant on 20.06.2025, the matter was listed on several dates, 23.07.2025, 28.07.2025, 12.08.2025, 29.08.2025, 16.09.2025, 13.10.2025, 13.11.2025, 09.12.2025 and finally on 09.02.2026. On all these dates, neither the Applicant nor any counsel representing the Applicant ever appeared or participated by way of filing Vakalatnama. A plain reading of the application, therefore, appears to attribute the alleged lapse to an unnamed advocate whose particulars have not been disclosed. It is further submitted that the Applicant cannot be permitted to evade responsibility by placing the entire blame upon an advocate and projecting itself as a passive and uninformed litigant. 15. Learned counsel for Respondent Nos. 1 and 2/Claimants also submits that an application for recall of a judgment can only be filed when the impugned judgment and order was obtained by fraud or a party in that case had misled the court or when the court itself had committed a mistake that prejudices a party. In the absence of such grounds the Applicant cannot seek to invoke the inherent powers of this Court under Section 151 of the CPC when an alternative remedy of filing an appeal against the impugned judgment dated 09.02.2026 is available to the applicant. Learned counsel, therefore, submits that the Applicant has Page No.# 7/11 failed to show any sufficient cause for this Court to recall the judgment and order dated 09.02.2026 passed in MACApp./7/2024. 16. Learned counsel for Respondent Nos. 1 and 2 has relied on the case of: i. Budhia Swain & Ors. v. Gopinath Deb & Ors. reported in (1999) 4 SCC 396; ii. Salil Dutta v. T.M. & M.C. Pvt. Ltd. reported in (1993) 2 SCC 185; and iii. My Palace Mutually Aided Co-operative Society v. B. Mahesh & Ors reported in (2022) 19 SCC 806. 17. Learned counsel, Mr. Y.P. Gupta appearing for the Respondent Nos. 3 and 4 has also adopted the submissions made by the learned counsel for the Respondent Nos. 1 and 2. 18. I have duly considered the submissions of the learned counsel for the parties and perused the pleadings as well as the records of MACApp./7/2024. The instant application has been filed by the Applicant seeking recall of the judgment and order dated 09.02.2026 passed in MACApp./7/2024 on the ground that the Respondent No. 3/Applicant was not effectively represented or heard when the appeal was finally decided. 19. Learned counsel for the respondent 1 and 2 has raised the issue of maintainability on the ground that no vakalatnama has been filed in MACAppeal 7/2024 and therefore there is no power on record authorizing Page No.# 8/11 any counsel to represent the Applicant. Hence, the learned counsel for the applicant cannot appear in the instant application. In the opinion of this Court if the Respondent 3/Applicant has signed the recall application and authorized the counsel and a vakalatnama is filed along with the recall application, the procedural lapse is rectified. In the instant application, it is seen that the Applicant has signed the recall application and has duly authorized the present counsel, Mr. Taka Kichu, as a vakalatnama has been filed along with the instant recall application. Accordingly, the instant application is maintainable as the Applicant has duly authorized the counsel to file the instant application through the execution of the vakalatnama. 20. The records indicate that on 20.06.2025 one Ms. P. Angap Konyak had appeared for the Applicant/Respondent No. 3 and prayed for 3 (three) weeks’ time to file her Vakalatnama and objections on behalf of the Respondent No. 3/Applicant. However, no Vakalatnama was thereafter filed. More importantly, the counsel did not appear on any of the subsequent dates when MACApp./7/2024 was fixed for orders and for hearing and did not make any submissions on behalf of the Applicant. Thus, on the date on which the appeal was finally heard and decided, i.e., 09.02.2026, there was no counsel authorized on record representing the Respondent No. 3/Applicant and the Respondent No. 3 was not heard either in person or through an authorized counsel. 21. The question, therefore, is not merely whether there was a technical omission in filing a Vakalatnama. The material question is whether the Applicant availed effective opportunity of being heard before the appeal Page No.# 9/11 was decided. It is true but mere non-filing of vakalatnama would not, in every case, warrant recall of a judgment. Where an advocate has in fact appeared, represented the party and made submissions on his behalf, the absence of a formal vakalatnama may constitute a curable procedural irregularity. 22. However, the facts of the present case stand on a materially different footing. In this case, the counsel who had stated she would file the vakalatnama neither filed the same nor appeared at the final hearing nor advanced any submissions on behalf of the Applicant. Consequently, there was no effective representation of the Applicant when the appeal was finally adjudicated. 23. The right of a party to have an effective opportunity of hearing is an essential component of the principles of natural justice. A judgment affecting the rights of a party ought not to be allowed to stand where the party has been deprived of such opportunity, unless the circumstances clearly establish that the party had knowingly and voluntarily waived the opportunity. 24. In the instant case, there is nothing on record to indicate that the Applicant/Respondent No. 3 had waived the right of hearing or that the Applicant had been represented by an authorized counsel at the time of final hearing. On the contrary, the record demonstrates that the proposed representation never materialized. 25. No doubt in normal circumstances a petition for recalling a judgement or order would follow the principles in the case of Budhia Page No.# 10/11 Swain (Supra) where the Hon’ble Supreme Court has laid down that a court may recall an order earlier made by it if the proceedings suffer from: i. 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. the 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. However, this Court is of the view that the inherent powers of this Court under Section 151 of the CPC can be invoked in a case such as the present application when the Applicant has not been given an effective opportunity of being heard. Violation of the principles of natural justice would supersede all other considerations. 26. In the above facts and circumstances, this Court is satisfied that the judgment and order dated 09.02.2026 passed in MACApp./7/2024 deserves to be recalled in order to afford the Applicant an effective opportunity of being heard. The recall is not being ordered merely because of non-filing of the vakalatnama, but because the consequence of such non-filing was that the Applicant had no authorized representation and was not heard at the final adjudication of the appeal. 27. In the result, the application is allowed. The judgment and order dated 09.02.2026 passed in MACApp./7/2024 is recalled. The appeal is Page No.# 11/11 restored to its original number and shall be listed for hearing afresh after 1 (one) week. 28. It is clarified that this Court has expressed no opinion on the merits of the appeal and all contentions of the parties on merits are left open. 29. The application stands disposed of accordingly. JUDGE Comparing Assistant