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2011 DIGILAW 1653 (ALL)

Ganesh Prasad Dalal Dharmshala v. K. C. Jha

2011-07-11

V.K.SHUKLA

body2011
Hon’ble V.K. Shukla,J.—Present recall application has been moved by Sri K.C. Jha, respondent for recalling of the order dated 18.10.2008 passed by this Court on the ground that no notice or summon has ever been served upon him about the pendency of the Civil Misc. Writ Petition No. 46778 of 2006 and he was totally unaware about the pendency of the present writ petition, as such order in question is liable to be recalled. 2. Objection had been filed to the said application in question taking therein plea that K.C.Jha was well aware of the aforesaid writ petition as copy of the application dated 05.10.2006 moved in Rent Case No. 4 of 1989 (Ganesh Prasad v. Ideal Electrical Works) was duly served upon him and concerned court has also made note of the said application being served and in the said application full reference of Civil Misc. Writ Petition No. 46778 of 2006 had been given and had ever appended his signature on the order sheet. After the said averment has been made, Sri K.C. Jha in his turn disowned that he has never appended his signature on the application and his signature on the order sheet are forged and copy of the said application was never served upon him. This Court on such mention being made and on the request of parties concerned on 02.12.2010 passed following order: “This Court has passed final judgment on 18.10.2008 and for recall of the said judgment in question application has been moved and the ground taken therein is to the effect that at no point of time K.C. Jha, Advocate had any information or notice of the pendency of the writ petition before this Court. To the said recall application objection has been filed before this Court through P.K. Sinha, Advocate and therein precise contention has been that K.C. Jha was well aware of the proceedings as in Rent case no. 4 of 1989 (Ganesh Prasad v. Ideal Electrical Works) as he has moved an application dated 20.09.2006 and qua the said application in question objection paper no. 209 had been filed by petitioner-landlord and therein in paragraph-5 specific reference has been given of the aforesaid writ petition including order passed by Hon’ble Mr. Justice Rakesh Tiwari. 4 of 1989 (Ganesh Prasad v. Ideal Electrical Works) as he has moved an application dated 20.09.2006 and qua the said application in question objection paper no. 209 had been filed by petitioner-landlord and therein in paragraph-5 specific reference has been given of the aforesaid writ petition including order passed by Hon’ble Mr. Justice Rakesh Tiwari. Petitioner has also specifically stated that copy of the said application could not be served and thereafter copy of said application was duly served on K.C. Jha in court and in this regard court has taken note of this fact by passing order on the order sheet. Coupled with this K.C. Jha has also made endorsement in the order sheet. Qua the said direction and said factum of acceptance of the aforesaid objection before the Court as mentioned in Order sheet and make endorsement in lieu of accepting such application on being served has been disputed by K.C. Jha by contending that signature appended thereon is forged. Not only this supplementary rejoinder affidavit has been filed and therein copy of the application dated 08.02.2010 has been appended wherein averment has been sought to be mentioned that his signature are forged. Thus, factual position which is emerging that petitioner’s specific contention is that K.C. Jha had knowledge of the aforesaid notice as he has accepted the copy of the application and duly made endorsement and then court has proceeded to pass order on the order sheet by making note of the fact. K.C. Jha has accepted the notice. K.C Jha Advocate is disputing his signature on the order sheet, his presence in the court on the said date and acceptance of said application. Such disputed question of fact at the first instance cannot be adjudicated by this Court and it would be much more appropriate that the court wherein Rent Case No. 4 of 1989 is pending is directed to get the matter examined by taking sample signature of K.C. Jha get the same verified vis-a-viz signature on the order sheet and in case further evidence is required same be also taken for the said purpose and submit its report within next two months before this Court qua the acceptance of said objection as noted in the order sheet. Report in question be sent in sealed cover before this Court through Registrar General of this Court and same be placed before this Court on the next date fixed. List this matter on 28.01.2011. Interim order already passed stands extended till the next date of listing.” 3. Thereafter concerned court has got handwriting of K.C.Jha examined and thereafter has recorded categorical finding while examining the matter on 04.05.2011 that on the order sheet signature of K.C.Jha is one and the same. Said report is accepted and taken on record. Counsel representing Sri K.C. Jha has tried to assail said finding by again dis-owing his signature. Full opportunity has been given to Sri K.C. Jha, in spite of the fact, that copy of application had been duly served on him, the concerned court in order dated 17.10.2006 made note of the fact, that copy of application has been given to Sri K.C. Jha, Sri K.C. Jha has come up with the case, that copy of the application was not served upon him and his signatures are forged. The finding returned on 04.05.2011 clearly belies and exposes. Sri K.C. Jha, and there is no occasion to take or form different view, specially when it was recorded by concerned Court in order dated 17.10.2006, that copy of application has been duly served upon him, and now it has come that petitioner has appended his signature in Court. Once such factual scenario is there that Sri K.C. Jha has got full knowledge of the writ petition filed before this Court as he was duly informed of the said fact by averments mentioned in paragraph-5 of the said application and said application has been duly served upon him and Court has made note of the same in the order sheet and then he proceeded to disown his signature and this much has come that signatures are his own handwriting, in this background once such is the factual scenario then inevitable conclusion is that K.C. Jha has got full knowledge and notice of Civil Misc. Writ Petition No. 46778 of 2006 and had deliberately avoided the proceedings and his conduct has been noted in detail by this Court, as this Court was of the opinion that he has full knowledge and notice and had been avoiding proceedings. Writ Petition No. 46778 of 2006 and had deliberately avoided the proceedings and his conduct has been noted in detail by this Court, as this Court was of the opinion that he has full knowledge and notice and had been avoiding proceedings. In this situation even if there is any defect in service, there is no occasion to recall the order dated 18.10.2008, keeping in view the amended provisions of Order IX Rule 13 of C.P.C. 4. Consequently application for recall sans merit and is accordingly rejected. Interim order accorded, during the pendency of the recall application is discharged. _____________