Judgment:
S.B.Civil Misc.
Application No.62/2012 1 S.B.Civil Misc.
Application No.62/2012 Shrinath Lohiya versus LRs of Harish Damwani & ORS.DATE OF ORDER
: 19th December 2013.
HON'BLE Mr.JUSTICE DINESH MAHESHWARI Mr.Shrinath Lohiya, applicant-in-person <><><> The respondent of CWP No.713/2005 has filed this miscellaneous application with the prayer that the order passed in disposal of the said writ petition on 02.04.2009 may be recalled.
The applicant has submitted in the application that the writ petition was filed on behalf of the petitioners Harish son of Kishan Chand and Narendra son of Kishan Chand, both through power of attorney holder Vasudev Israni; that during the pendency of the writ petition, the petitioner Narendra had expired but the power of attorney holder did not disclose this fact before the Court; and that the writ petition was decided after the death of the petitioner Narendra.
It is submitted that the authority of the power of attorney holder came to an end after the demise of the petitioner Narendra in the month of February 2009 so the order passed by this Court on 02.04.2009 is liable to be recalled.
Apart from the aforesaid submissions, the applicant has also made certain other submissions touching the merits of the case but looking to the subject-matter of this application and the overall circumstances, dilatation on the aspects relating to the merits of the case is neither necessary nor warranted.
S.B.Civil Misc.
Application No.62/2012 2 By way of the said writ petition (CWP No.713/2005).the defendants in the suit for perpetual injunction filed by the present applicant [presently Civil Original Suit No.5/2008 in the Court of Additional Civil Judge (Junior Division) No.5, Jodhpur].had questioned the order granting temporary injunction, as passed by the Trial Court and affirmed by the Appellate Court, to the effect that they would not interfere with the plaintiff-applicant’s use and occupation of, and raising of construction at, the land in dispute; and would not attempt to dispossess him.
By the order dated 02.04.2009, this Court, after having heard the parties, proceeded to modify the impugned orders passed by the learned subordinate Courts; and the application for temporary injunction filed by the plaintiff-applicant was allowed only to the extent and in the manner that status quo in relation to the property in dispute was ordered to be maintained by both the parties until final disposal of the suit; and the Trial Court was also directed to deal with the suit expeditiously.
The applicant appearing in person, on being put to queries as regards status of the parties in the pending civil suit, has pointed out that in fact, it had appeared before the Trial Court that both the writ- petitioneRs.who were the defendants in the suit, had expired; and their legal representatives have been brought on record.
In this matter, though in the application as originally filed, only the fact about the demise of one of the petitioners Narendra son of Kishan Chand was stated but during the couRs.of submissions, the applicant also stated the fact about the demise of the petitioner No.1 Harish son of Kishan Chand.
S.B.Civil Misc.
Application No.62/2012 3 Taking note of all the submissions made, notices were ordered to be issued to the non-applicants Nos.1/1, 1/2, 2/1, 2/2 and 2/3, who have been arrayed as the legal representatives of the said deceased petitioneRs.The proceedings in this application continued for quite some time for want of proper services but ultimately, on 26.02.2013, the service was taken up sufficient with the following order:- “In this matter, it was noticed on 18.12.2012 that notices sent to the non-applicants were not properly served inasmuch as the notices were offered to the non-applicant No.2/1 who declined to accept but then, no affixture was made.
Fresh notices were ordered to be issued with the requirement upon the process server to carry out necessary compliance of the requirements of law so as to effect the service properly.
The notices thereafter sent have been received back.
It appears that the notices in relation to the five non-applicants Nos.1/1, 1/2 , 2/1, 2/2 and 2/3 were sent at the same address.
As per the reports made, it appears that the notices were offered to the non-applicant No.2/1 Smt.
Anita wife of late Narendra Damwani, who declined to accept.
This time, affixture has been made as reported by the process server in the presence of two witnesses.
The office has reported that the notices of non-applicant No.2/1 Smt.
Anita have been received duly served but, as regards the other notices, refusal was not made by the concerned non- applicant.
In continuity with and as per the requirement of the orders passed in this case on the earlier occasions, the petitioner has placed on record the certified copies of the notices said to have been served in relation to non-applicants at the same given address in CWP No.6592/2011 pending in this Court and arising out of the same civil suit.
It is submitted that therein, the non- applicant No.2/1 Smt.
Anita has been shown residing with all the other non-applicants.
The petitioner has also placed on record the notices said to have been served in the pending civil suit in relation to the same non-applicants.
The petitioner has also placed on record a certified copy of Vakalatnama said to have been filed before the learned Trial Court, again, showing the same address of the non- applicants.
Having regard to the submissions made and the documents placed on record, the service on the non-applicants Nos.1/1, 1/2, 2/1, 2/2 and 2/3 is taken as sufficient.
Nobody is present for the non-applicants.
List this mater for orders on 12.03.2013 alongwith the record of decided writ petition (CWP No.713/2005) that may be shown distinctly in the cause list.”
.
S.B.Civil Misc.
Application No.62/2012 4 In response to the queries of the Court, the applicant- respondent has filed additional affidavits too and has also placed on record the order sheets of the learned Trial Court and the copies of the notices/summons issued in the Trial Court.
The applicant has also referred to the decision of the Hon’ble Supreme Court in the case of Union of India & ORS.versus Ramesh Gandhi : (2012) 1 SCC476to submit that the order in the writ petition has been obtained on behalf of the petitioners by way of fraud and the order so obtained through fraud is required to be treated as non-est; and has particularly referred to Section 44 of the Evidence Act.
During the couRs.of submissions, the applicant has asserted that the writ-petitioners had expired on 03.02.2009 and in any case, in the fiRs.week of February 2009.
Though directly the document, in conclusive proof of the date of demise, is not available but the circumstances in which the applicant has gathered information and the relevant factual aspects have been stated by him in his additional affidavit dated 22.04.2013, the relevant contents whereof are as under: - “2.
यह ह क अप र सखय 1 हर श द मव न अप र सखय 2 नरन द मव न पत सव० श क सनचनद द!न" अप र य" # मत$ य # सच& न उन अध)वक द र अध)नसर नय य लय ! ददन 02/12/2011 ! द गई र । प र ! अप र गण" # मत$ य # ज न र अध)नसर नय य लय स ममल र । अध)नसर नय य लय आदश नस र अप र गण" ववध) पत7तन) रर र: पर लन ह7 अध)नसर नय य लय म; प र:न पत पस77 क य जजस # पत7 इस शपरपत स र पस77 ह। 3.
यह ह क प र # आप र गण" ववध) पत7तनध)य" ज न नह ह!न स प र न अप र गण" ररश7द र" प7 लग य । इस पय स म; प र ! अप र श नरन द मव न सल नम भ वस मस) जजस # पड # द न सरद रपर ब र!ड,ज!)पर प7 चल । प र न श भ वस मस) स समप : र अप र गण" ववध) पत7तनध)य" न म म लम क य व अप र सखय 1 व 2 मत$ य ह!न समबन) म; ज न र प प #। 4.
यह ह क प र # श भ वस मस) स ममल ज न र आ) र पर प र न अप र सखय 1 व 2 यम म म नम अध)नसर नय य लय म; पस77 र ददय जजस पर अप र गण" S.B.Civil Misc.
Application No.62/2012 5 अध)वक द र ववध) ऐ7र ज नह ह!न स अध)नसर नय य लय न रर र: पर मलय व अध)नसर नय य लय आदश नस र प र न सश!ध).श र: नय य लय म; पस77 र ददय। 5.
यह ह क प र ! श भ वस मस) स ह म लम हआ क अप र सखय 1 व 2 # मत$ य कGल वपनस म; Gरवर 2009 परम सप ह म; ह! गई र । इस ज न र आ) र पर प र न म नन य उचच नय य लय म; उक प र:न पत पस77 र म नन य नय य लय द र प रर7 आदश ददन 02/04/2009 ! व पस लन तनवदन क य । अ7: अप र गण सखय 1 व 2 # मत$ य ह!न पश 7 J ह उक आदश प रर7 हआ र ।" Taking a comprehensive view of the matter with reference to the facts stated by the applicant and the proceedings that have taken place in the Trial Court, it appears that the writ petitioners had expired before the order was pronounced in the petition on 02.04.2009.
Perusal of the record of CWP No.713/2005 further makes out that the arguments were concluded in the said petition on 10.02.2009.
In the given position, obviously, the petition had been prosecuted on behalf of the persons who were not alive.
In the given set of facts, it is difficult to hold it to be directly a case of fraud, particularly where the said petitioners were not residing in the country and when a case of inadvertent omission is not ruled out.
However, and in any case, the order as passed in the writ petition cannot sustain itself once it is clear that it had been passed in a petition, which was continued on behalf of dead person/persons.
The applicant has also attempted to argue that the findings in the order dated 02.04.2009 to the effect that construction was yet to be raised were not correct and that photographs depict the position to the contrary.
As observed above, looking to the subject-matter of this application and the facts as stated regarding status of the parties, the order dated 02.04.2009 is required to be recalled altogether.
When the said order is being recalled in toto, it does not S.B.Civil Misc.
Application No.62/2012 6 appear necessary to make any comment on any other observation or finding occurring therein.
Although in the face of given facts, this Court could have considered annulling the order dated 02.04.2009 and then dismissing the writ petition altogether but a deviation from such a couRs.appears requisite in the matter for the reason that none of the persons arrayed as non-applicants (the legal representatives of the original writ-petitioneRs.have put in appearance in this application and the exact date of demise of the persons concerned, with all certainty, is not forthcoming.
In the given set of facts and circumstances, it appears appropriate to adopt the couRs.of recalling the order dated 02.04.2009 and restoring the writ petition bearing number 713/2005 for appropriate orders in accordance with law.
Accordingly, this miscellaneous application is allowed to the extent and in the manner indicated above.
The order dated 02.04.2009 is recalled.
CWP No.713/2005 shall stand restored for reconsideration and for appropriate orders in accordance with law.
The said writ petition be placed appropriately in the second week of January 2014.
(DINESH MAHESHWARI),J.
cpgoyal//-