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2024 DIGILAW 13 (UTT)

Vijay Kumar Gupta v. Omkar Nath Gupta

2024-01-04

RAVINDRA MAITHANI

body2024
JUDGMENT : Ravindra Maithani, J. By means of this petition, the petitioners have sought the following reliefs:- (i) Issue a writ, order or direction in the nature of certiorari calling the record of the case and to quash the order dated 10.03.2017 (Annexure No.1) passed by Civil Judge (J.D.) Narendra Nagar, Tehri Garhwal in O.S. No. 07 of 2008, Kailash Nath Gupta and Another Vs. V.K. Gupta and others and further the judgment dated 23.10.2018 (Annexure No.2) passed by Additional District Judge Tehri Garhwal in Civil Revision No.2 of 2017 Vijay Kumar Gupta and others Vs. Omkar Nath Gupta and others. (ii) Issue any other suitable writ, order or direction which this Hon’ble Court may deem fit, just and proper in the circumstances of the case as also in the interest of justice. (iii) Allow the writ petition with costs.” 2. The Original Suit No.7 of 2008, Kailash Nath Gupta and Another Vs. V.K. Gupta and Others, in the court of Civil Judge (Junior Division), Narendra Nagar (Tehri Garhwal (“the suit”) was filed by Kailash Nath Gupta and Omkar Nath Gupta as trustees of a trust property seeking declaration and injunction. During the pendency of the suit, the plaintiff no.1 Kailash Nath Gupta died. On an application filed by the plaintiff no.2 (He was Omkar Nath Gupta and he was initially respondent no.1 in the petition), by an order dated 23.08.2016, the court allowed the substitution application. The petitioners as well as the father of the respondent no.4 were substituted as plaintiffs in the suit. On the same date, on an application of the defendant no.1 in the suit, he was transposed as plaintiff. Subsequently, the plaintiff no.2 in the suit, Omkar Nath Gupta filed an application for recall of the order dated 23.08.2016, by which substitution was permitted. It was moved on the ground that he never moved substitution application. By the impugned order dated 10.03.2017, this application was allowed and the court recalled the impugned order dated 23.08.2016 by which the substitution was permitted. The order dated 10.03.2017 was further unsuccessfully challenged in the revision. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioners would submit that the court had already allowed the substitution application on 23.08.2016 after the death of original plaintiff no.1 Kailash Nath Gupta. This order could not have been recalled. The order dated 10.03.2017 was further unsuccessfully challenged in the revision. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioners would submit that the court had already allowed the substitution application on 23.08.2016 after the death of original plaintiff no.1 Kailash Nath Gupta. This order could not have been recalled. The limited argument is that the order dated 23.08.2016 was passed in the suit, in the presence of the plaintiff no.2, in the suit. Therefore, the only remedy that could have been available to the plaintiff no.2 was to challenge the order dated 23.08.2016 in the higher forum. But, recall application may be termed as misconceived. It is also argued that the application for recall of the order dated 23.08.2016 was filed alongwith an application under Section 5 of the Limitation Act, 1963 (“the Act”) for condoning the delay. But, the court did not touch the application under Section 5 of the Act and without condoning the delay, passed the impugned order dated 10.06.2017, which is bad in the eye of law. 5. It is true that if an order is passed after hearing both the parties, generally an application for recall may not be entertained. But then, if fraud, deception, misrepresentation and like issues are brought to the notice of the court touching upon the orders passed by the court, perhaps no court or tribunal would be divested of the jurisdiction to recall such orders. 6. In the instant case, an application for substitution was filed, which was allowed on 23.08.2016. The order records that the application was filed by the plaintiff no.2. Fact remains that subsequently, an application for recall of the order dated 23.08.2016 was filed by the power of attorney holder of plaintiff no.2 on the ground that the plaintiff no.2 never instructed his lawyer to file such an application. The lawyer in collusion with the defendant no.1, in the suit, had filed such application. In such circumstances, definitely, if court comes to a conclusion that there was some collusion and the application was not filed by the person, by whom it was purported to be filed, perhaps the court is not divested of the jurisdiction to entertain such an application. 7. There is another issue in the matter. Why substitution? The plaint in the suit records that the initial plaintiffs were trustee of a trust property. 8. 7. There is another issue in the matter. Why substitution? The plaint in the suit records that the initial plaintiffs were trustee of a trust property. 8. Section 44 of the Indian Trusts Act, 1982, provides for such situation if one of the trustees has expired, in absence of any expansion of trustees in excess, the remaining trustees could have proceeded with the suit. But, still that is not an issue before this Court. 9. Learned counsel appearing for the respondent nos. 3 and 4 candidly admits that in the impugned order dated 10.03.2017, there has been no discussion of the application under Section 5 of the Act, as was filed by the applicant in that case, who was power of attorney holder of the plaintiff no.2. 10. There is one aspect which requires adjudication by this Court. The impugned order dated 10.03.2017 by which the order dated 23.08.2016 was recalled, is based on recall application as well as an application under Section 5 of the Act, but admittedly, no discussion was done on the application under Section 5 of the Act and there has been no finding of the court in its order dated 10.03.2017, passed in the suit that the delay in filing the application of recall has been condoned. On this ground alone, the impugned order dated 10.03.2017 is liable to be interfered with and deserves to be set aside. Consequent upon, the order passed in the revision also deserves to be set aside and petition allowed. 11. The petition is allowed accordingly. 12. Impugned orders dated 10.03.2017 and 23.10.2018 are set aside. 13. The matter is remanded to the trial court to consider the recall application afresh and pass an order on both the recall application as well as the application for delay condonation, keeping in view the observation that has been made hereinbefore in this judgment.