Sarjoo Prasad vs State of U.P. and Another

Hon''ble Mrs. Jayashree Tiwari, J.—Case called out in the revised list.

Heard learned counsel for the applicant and learned A.G.A. for the State.

The present application has been filed against the revisional order passed by the Additional Sessions Judge, Gorakhpur dated 7.11.1998, whereby dismissing the revision filed in connection with the contention that the order of the S.D.M. in connection with u/s 145 Cr.P.C. has fraudulently passed. In fact, no such order was passed.

Learned lower revisional court considering the entirely of the matter and came to the conclusion that neither any attempt was made to inquire about the judgment on the date fixed by the applicant nor any application for inspection was given and it is also observed that it was appropriate for the applicant to have given a letter of a complaint regarding the matter and for holding the judgment as void and illegal and setting-aside the same and for disposing the same on the basis of the merits and de-merits of the case.

The present petition application has been filed to quash the order passed by the revisional court dated 7.11.1998 which has been passed in connection with an application u/s 145 Cr.P.C. in case no. 3/22/80.

Learned revisional court while passing the aforesaid order was well within his jurisdiction and has made appropriate observation and if, it was the contention of the applicant that an order was fraudulently passed, it was open to the applicant to have approach the S.D.M. concerned to set-aside the order on the grounds as alleged and re-hear the matter afresh on merits but he does not get the relief from the court of S.D.M. concerned. It was open for the applicant to have approach the Superior court in the hierarchy of the execution with the complaint as alleged. Learned counsel for the applicant conceded that he has not taken a recourse to either of the processes under the specific Relief Act, there is provision for cancellation of the decrees which are obtained fraudulently or otherwise but no recourse has been taken under the aforesaid Act before the Competent forum. In these circumstances, the application has appears to have no force in itself and no relief appears for quashing the order as alleged by the applicant.

However, since the applicant has acted on the advise of the legal expert, it is observed that the applicant shall be at liberty to move in appropriate forum for redressal of his grievance with an application for condonation of delay.

The application is accordingly disposed off.