Vinay Kumar Chowdhary vs Ghanshyam Narain Kohli

B.K. Rathi, J.—An order was passed on 29.2.2000 (Annexure-9 to the stay application) by the District Judge, Varanasi in Case No. 155 of 2000 appointing the applicant Vinay Kumar Chowdhary as Managing Trustee of the Trust Lachchi Ram Dharamshala, Varanasi in accordance with the scheme, dated 13.8.1938 prepared in O.S. No. 7/27. The opposite party on 29.5.2000 moved an application under Order IX, Rule 13, CPC to recall the order with an application for condonation of delay in filing the application. The application was opposed on the ground that the opposite party was not party in the proceedings and, therefore, he has no right to apply for the recall of the order under Order IX, Rule 13, Code of Civil Procedure. The application for condonation of delay was also opposed. However, by order, dated 21.8.2000, the learned District Judge, Varanasi has allowed the application for condonation of delay and also the application for recall of the order, dated 29.2.2000 passed by him and has sent the matter for fresh decision to the IVth Additional District Judge, Varanasi along with other connected matters. Aggrieved by it, the present revision has been preferred.

I have heard Sri Ajit Kumar, learned Counsel for the revisionist and Sri A.K. Srivastava, learned Counsel for the opposite party and have gone through the record.

The first argument of the learned Counsel for the revisionist is that the application for stay of the order was filed and the District Judge, Varanasi on 30.5.2000 (Annexure-6 to the affidavit) ordered that the stay shall be considered after disposal of application u/s 5 of the Limitation Act. That inspite of that order, the learned District Judge has passed a composite order allowing the application u/s 5 of the Limitation Act and also allowing the application for recall of the order. The composite order is bad in law. It is contended that after condonation of delay, opportunity should have been given for consideration of application for recalling the order. The learned Counsel for the revisionist in support of the argument has referred to the decision of the Apex Court in Slate of M.P. and State of M.P. and Another Vs. Pradeep Kumar and Another, , It was observed in the case:

The object of enacting Rule 3A in Order XLI of the Code seems to be two-fold. First is, to inform the Appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the Respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the Court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the rule that it is intended to operate as unremediable or irredeemably fatal against the Appellant if the memorandum is not accompanied by any such application at the first instance.

I have considered the arguments, but disagree with the same. The above observation is based on Rule 3A in Order XLI, CPC which applies to the appeals. This provision cannot be applied to miscellaneous application. Rule 3A of Order XLI, CPC does not apply to the miscellaneous applications.

From the order passed by the District Judge, Varanasi, it appears that he has heard arguments on merit as well on application for condonation of delay and passed a composite order. There is no illegality in the same.

Another reason for not interfering in the order is that application for condonation of delay in this case was only a formality, which was not at all required. The opposite party who moved the application was not a party to the proceedings and he moved the application for recalling the order when he came to know of the order. Therefore, he was not required to explain the delay. The only requirement was to show as to when he came to know the order. Therefore, the main question for consideration was regarding the ground for recalling the order. The first argument of the learned Counsel for the revisionist, therefore, cannot be accepted.

It is further contended that Order IX, Rule 13, CPC does not apply in the present case. It is contended that the opposite party was not party to the proceedings, therefore, he cannot take resort to the provisions of Order IX, Rule 13, CPC and his application was not maintainable. It is also contended that proceedings are miscellaneous proceedings and, therefore, the provisions of Order IX, Rule 13, CPC does not apply.

This argument is also not correct. By virtue of Section 141, Code of Civil Procedure, Order IX, Rule 13, CPC also applies to the miscellaneous proceedings. The question is whether the opposite party can move an application under Order IX, Rule 13, CPC though he was not party to the proceedings. According to the opposite party, the order was obtained by practising fraud and suppressing the facts and the recall of the order has been requested on this ground.

Learned Counsel for the Respondent has referred to several cases. The first is: Surajdeo Vs. Board of Revenue, U.P., Allahabad and Others,

In this case after considering various decisions of the Supreme Court, it was held by this Court that a stranger can apply for setting aside the ex parte order, which has been obtained by fraud and collusion.

The other case referred to is: United India Insurance Co. Ltd. v. Rajendra Singh and Ors. JT 2000 (3) SC 151. In this case, an order for grant of compensation for causing injuries was passed. Later on, report of the police was filed that the injuries were caused in some other incident. Therefore, the request was made for recalling the order and it was pleaded that the order has been obtained by practising high degree of fraud. It was observed by the Apex Court that:

...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 effect the very basis of the claim.

The learned District Judge has observed that the order has been obtained by practising fraud and suppressing of the facts. Therefore, he can recall the order, under Order IX, Rule 13, CPC and the argument that the application is not maintainable cannot be accepted.

The learned Counsel also argued on the merits of the case and contended that there was no sufficient ground to recall the order. It is contended that the scheme of management of trust was prepared on 13.8.1938. According to the said scheme, the father of the applicant was the Managing Trustee. After the death of the applicant''s father, the applicant moved an application for appointing him the Managing Trustee, which was allowed by the District Judge, Varanasi by the impugned order. That therefore, remedy was to move an application u/s 92, CPC for appointment of trustees or for removal. The application for recall of order is only an abuse of the process of the Court. That no fraud was practised. It is further contended that in the impugned order, it has been observed that miscellaneous Case No. 390/88 Ghanshyam Narain v. Gauri Shanker Chaudhary and Case No. 322/88 are pending in the Court regarding this Trust. That this fact was suppressed. It is contended that these cases were not relevant and, therefore, not required to be disclosed. The documents of the same have been filed and it is argued that in Suit No. 322/88 Is for injunction against the opposite party, in which injunction order was issued on 26.9.1988 (Annexure-14 to the affidavit) against the opposite party restraining him from working as Managing Director of the Trust. That the said order still subsists, as appears from Annexure-15 to the affidavit. It is contended that these orders are in favour of the applicant and, therefore, there was no necessity of disclosing of the suit and these orders. It is further contended that Suit No. 390/88 was filed against the father of the applicant, who has died. That, therefore, there was no question of disclosing that case. That, therefore, no fraud was practised.

I have considered the arguments. In my opinion, the contention is not correct. The applicant should have disclosed regarding these cases as the same are regarding the same trust. It is not disputed that Suit No. 390/88 was for the removal of the father of the applicant as Managing Trustee. The father of the applicant has died for whose removal of the suit was filed. The applicant claims the right of Managing Trust on the basis that his father was Managing Trustee. Therefore, it was incumbent on him to disclose regarding the Suit No. 390/88. The Suit No. 322/88 is also regarding the Management of the said Trust and, therefore, it should also be disclosed.

It may also be mentioned that by order, dated 21.7.1983 passed in O.S. No. 4127/83, the District Judge, Varanasi ordered for appointment of the opposite party as a trustee of the disputed trust. Therefore, the opposite party was not an outsider but was the trustee of the trust in dispute. It was, therefore, incumbent to the applicant to implead him as party in this case. Without impleading him, the order regarding Managing Trustee was obtained. Thus the material facts were suppressed and fraud was practised.

Considering these circumstances, I am of the view that the order was rightly recalled by the learned District Judge, Varanasi. The matter has not been finally decided. It has been sent to the IVth Addl. District Judge, Varanasi for decision along with the other pending cases. There is no reason to interfere in the impugned order.

The revision is without merit and is hereby dismissed.