JUDGMENT : Ravi R. Tripathi, J. Shri Momin Valibhai Kamalbhai along with 8 others are before this Court being aggrieved by judgment and order dated 23.7.2013 passed by the learned Single Judge in Special Civil Application No.14540 of 2004, whereby the learned Single Judge is pleased to partly allow the petition by saying, thus; "In the result, present petition stands partly allowed. The impugned order dated 24.09.2004 at Annexure-A passed by the Wakf Board is hereby quashed and set aside with a direction that the matter is remanded to the Gujarat State Wakf Board for its decision afresh on merits and in accordance with law. It is directed that both the change Reports No.356/2003 as well as No.397/2004, shall be decided within a period of one month from the receipt of this order, after providing an opportunity of hearing to both the sides. It goes without saying that decision will be taken independently on examination of the record and both the sides will cooperate and shall not ask for unnecessary adjournments. In the meanwhile, both the sides are directed to maintain the same position as on today." (emphasis supplied) 1.1 Learned advocate Mr. A.J. Memon vehemently submitted that the petition was filed praying the relief which are set out by the learned Single Judge in the opening part of the judgment and sub-para (B) of Para.10 of the prayer clause reads as under : "10(B) Taking in to consideration the above grounds and such other grounds that may be urged at the time of hearing of this petition and after examining the legality and constitutional validity of the impugned judgment and order passed by the respondent no.1 on 24.09.04 rejecting the change report no.356/2003, your Lordships may graciously be pleased to issue a writ of certiorary or any other appropriate writ, order or direction quashing and setting aside the impugned judgment and order at annexure A to the petitioner and to hold that the Judgment and order passed below change Report No.356/03 granting the change report on 22.4.04 at annexure B to the petition remains in force and to direct the respondent no.1 to restore the status prior to the impugned judgment and order at annexure A and as per the order and judgment at annexure B to this petition." 1.2 Learned advocate Mr. Memon for the appellants invited attention of the Court to grounds of the appeal memo of which Ground (a) reads as under : "(a) Because the learned Judge has erred in law and has acted with material irregularity and illegality and/or without jurisdiction in remanding the matter after holding that the impugned order dated 24.9.2004 at Annexure-A passed by the Wakf Board is hereby quashed and set aside, relying on the ratio of the judgment reported in AIR 1970 SC 1273 referred to in para-2 of the judgment. It is respectfully submitted that when Wakf Board has no jurisdiction to review its order under law, then the Wakf Board cannot get the jurisdiction of review under the order of remand." 1.3 Learned advocate for the appellants then invited attention of the Court to a decision of the Hon'ble the Apex Court in the matter of District Collector of Hyderabad and Others v. M/s.Ibrahim and Co. etc., reported in AIR 1970 SC 1275 . Learned advocate for the appellants also relied upon a decision of the Hon'ble the Apex Court in the matter of Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji, reported in AIR 1970 SC 1273 and relied upon the observations made by the Hon'ble the Apex Court in Para.4, which reads as under : "4. The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government.It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was liable to be set aside. (emphasis supplied) 1.4 Learned advocate for the appellants also invited attention of the Court to Para.161 and 162 of a decision of larger bench in the matter of Gujarat State Road Transport Corporation v. Firoze M. Mogal and Another, reported in 2014 (1) GLH (FB) 1 : AIR 2014 Guj 33 , which reads as under : "161. The issue whether the High Court under Article 226 of the Constitution, after quashing the order by granting a writ of certiorari can modulate its order so as to grant appropriate relief, was considered by a Division Bench of the Bombay High Court in the case of Mahomed Usman Rahimtoola v. Labour Appellate Tribunal, Bombay, reported in AIR 1952 Bombay 443 (1). His Lordship Chagla, C.J. Took the view that when the Court issues the high prerogative writ of certiorari, it directs the judicial tribunal, against which it is acting, to transmit the record to the Court, and if necessary to quash the order which the Tribunal has passed. In issuing the writ the Court does not act as a Court of appeal and, therefore, cannot exercise the power of remanding the matter to the lower Court, which power is exercisable only by a Court acting as an appellate Court. The Court is only concerned with the question as to whether the Tribunal exercising judicial functions has, or has not acted without jurisdiction or whether in the exercise of its jurisdiction it has contravened the principles of natural justice. If it has acted without jurisdiction, or if it has contravened the principles of natural justice, then the jurisdiction of this Court is to quash the order without jurisdiction or in contravention of the principles of natural justice. There, the power of the High Court stops. It has no power to go further and to direct the Tribunal to hear the matter again or to deal with that matter in a manner directed by the High Court. There, the power of the High Court stops. It has no power to go further and to direct the Tribunal to hear the matter again or to deal with that matter in a manner directed by the High Court. It would be left to the Tribunal whether to hear the matter again or not. But that is a matter on which the High Court cannot give any direction. 162. It appears that the Supreme Court in Surya Dev Rai (supra) has also taken the same view that in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior Court or Tribunal to the High Court, the High Court may simply annul or quash the proceedings and then do no more. The Court proceeded further to observe that in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, the High Court may not only quash or set aside the impugned proceedings, judgment or order, but it may also make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior court or the tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or the tribunal should have made. The Court concluded stating that the jurisdiction under Article 226 of the Constitution was capable of being exercised on a prayer made by or on behalf of the party aggrieved, whereas the supervisory jurisdiction was capable of being exercised suo motu as well." 1.5 Learned advocate for the appellants submitted that after being convinced of the merit in SCA, the learned Judge having come to the conclusion that impugned order dated 24.9.2004 produced at Annexure-A is required to be quashed and set aside and having quashed and set aside the same, should have stopped there and should not have passed an order to the effect that, "... with a direction that the matter is remanded to the Gujarat State Wakf Board for its decision afresh on merits and in accordance with law...." 1.6 Learned advocate for the appellants submitted that the natural consequences of quashing of an order which is found to be unjust, improper and illegal will be that the order which was passed prior to the order quashed will come into being and will hold the field. Learned advocate for the appellants also submitted that if at all the other side is aggrieved by the order which has come into being and to hold the field, the party has to take recourse to the remedy available to him. The party cannot succeed without challenging that order in substantive proceedings wherein the legality will be examined. By order of remand the other side succeeds in a petition filed by the present appellants - original petitioners. The resultant effect of order of Remand is that the order which has come into being on impugned order being quashed becomes non-existent. 2. Learned advocate Mr. R.D. Dave appearing for respondent No.2 vehemently opposed the Appeal and submitted that the order which is contended to have come into being on order dated 24.9.2004 having been quashed, was obtained by fraud and therefore, the appeal is not required to be entertained. The matter will be considered by Gujarat State Wakf Board as per the direction issued by the learned Single Judge. In this regard, learned advocate relied upon a decision of the Hon'ble the Apex Court in the matter of A.V. Papayya Sastry and Ors. v. Govt. of A.P. and Others., reported in (2007) 4 SCC 221 : AIR 2007 SC 1546 . Learned advocate for respondent No.2 heavily relied upon Head Note-B and also Head Note-C of the said judgment, which reads as under: "B. Fraud - Meaning - Vitiates all judicial acts whether in rem or in personam - Judgment, decree or order obtained by fraud has to be treated as honest and nullity, whether by court of first instance or by the final court - It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings - This is an exception to Article 141 of the Constitution and doctrine of merger - Constitution of India, 1950 Article 141. C. Constitution of India - Article 136 - Nature and scope of Supreme Courts jurisdiction under - It is a discretionary and equitable jurisdiction - Court interferes where justice, equity and good conscience requires." 2.1 Learned advocate for respondent No.2 invited attention of the Court to Para.22 and 26 of the said judgment which reads as under : "22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and honest in the eye of the law. Such a judgment, decree or order - by the first court or by the final court - has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants." 2.2 Learned advocate for respondent No.2 also invited attention of the Court to Para.31 and 33 of the said judgment which reads as under : "31. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : JT 1996 (7) SC 135 : AIR 1996 SC 2592 , referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888 , this Court stated; "The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business". (emphasis supplied) 33. Allowing the appeal and setting aside the orders, this Court stated; "15. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. 16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 17. The allegation made by the appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice". (emphasis supplied) 3. Learned advocate for respondent No.2 wanted this Court to compare the signature in a document dated 10.3.2004, a copy of which is produced at Annexure-B, claimed to be that of Shri Pyarbhai Mohmadbhai Momin and the signature contained in an affidavit affirmed on 23.8.2004, produced at Annexure-C and hold that the same are not of Shri Pyarbhai Mohmadbhai Momin. Learned advocate for respondent No.2 wanted this Court to agree to the submission of learned advocate for respondent No.2 that same are not the signatures made by the same person and therefore, it is a clear case of fraud. 3.1 It is a settled position of law that fraud is a mixed question of fact and law and it is required to be proved by leading necessary evidence. In that view of the matter, submissions of learned advocate Mr. A.J. Memon for the appellants are worth accepting and same are accepted. The order prior to the order quashed by this Court dated 24.9.2004 has come into being. Now if the respondent No.2 is aggrieved by that order, may be on the ground of fraud, he has to take recourse to the remedy available under the law and get that order quashed by leading necessary evidence after convincing the authority (in the present case the Gujarat State Wakf Board) on the point that the signatures contained in Annexure-B and Annexure-C are not affixed by the same person. In that view of the matter, this Court is of the opinion that appeal is required to be allowed. The same is accordingly allowed. The judgment and order of the learned Single Judge is modified to the effect that, the direction that the matter is remanded to the Gujarat State Wakf Board for its decision afresh on merits and in accordance with law is quashed and set aside. 4. The same is accordingly allowed. The judgment and order of the learned Single Judge is modified to the effect that, the direction that the matter is remanded to the Gujarat State Wakf Board for its decision afresh on merits and in accordance with law is quashed and set aside. 4. At the request of learned advocate Mr.R.D.Dave, it is clarified that allowing of this appeal to the extent aforesaid does not mean that the Court has gone into the aspect of the alleged fraud. It would be open for respondent No.2 to take recourse to the remedy available to him under the law. 5. On a request made by learned advocate Mr. A.J. Memon, it is clarified that the judgment and order of the learned Single Judge quashing and setting aside the order dated 24.9.2004 at Annexure-A is upheld, therefore, the same must be given effect in a manner required under the law. CIVIL APPLICATION NO. 8682 of 2013 As the main Letters Patent Appeal is allowed, this Civil Application does not survive and the same is disposed of accordingly. Appeal allowed.