Yogendra Prasad, s/o Late Chandreshwar Sahay, R/o Mohalla- Hamidganj, Near Sahitya Samaj chowk, P.O.+ v. 1
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 2895 of 2013 Yogendra Prasad, s/o Late Chandreshwar Sahay, R/o Mohalla- Hamidganj, Near Sahitya Samaj chowk, P.O.+ P.S.- Daltonganj, Medninagar, Distt- Palamau Petitioner … … Versus 1(a) Satya Brat Prasad, S/o Shri Ved Brat Prasad 1(b) Priya Brat Prasad, S/o Shri Ved Brat Prasad 1(c) Anand Brat Prasad, S/o Shri Ved Brat Prasad 1(d) Ravi Brat Prasad, S/o Shri Ved Brat Prasad 1(e) Shri Ved Brat Prasad, S/o Late Chandrika Prasad All are resident of Mohalla- Hamidganj, near Sahitya Samaj Chowk, Daltonganj, Medinagar, Distt. Palamu 2. Vijay Kumar Dubey s/o Sri Krishna Deo Dubey, r/o Mohalla- Hamidganj, near Sahitya Samaj chowk, Daltonganj. Medninagar, … Respondents Distt- Palamau … --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondents
Legal Reasoning
--- : Mr. Prashant Pallav, Advocate : Mr. Robin Kumar, Advocate --- 24/26.09.2024 Heard the learned counsel for the parties are present. 2. This writ petition has been filed for the following reliefs: "That in the instant writ petition the petitioner prays before this Hon'ble Court for issuance of writ/order/ direction/directions particularly a Writ in the nature of Certiorari for quashing of the order dated 20.02.13 passed by learned Civil Judge-I( Junior Division), Palamau at Daltonganj in Misc case no 05/2005 whereby and where under the learned court below had rejected to review/recall the order dated 17.03.12 which was passed in material suppression of fact submitted at the instance of respondent 1st party and the petitioner further prays for quashing of the order dated 17.03.2012 passed by learned Civil Judge-I (Junior Division), Palamau at Daltonganj in Misc case no. 05/2005 whereby and where under the court rejected the application filed by the petitioner under order VI rule 17 of Code of Civil Procedure on illegal and arbitrary ground." 3. Learned counsel for the petitioner has submitted that a petition was filed before the learned Court under Order XXI Rule 99 of Code of Civil Procedure in Execution Case No. 5 of 1994 / 12 of 1997 which was numbered as Miscellaneous Case No. 5 of 2005. In the said petition, the details of the property with which the petitioner is concerned, was mentioned in paragraph 10. However, another petition was filed in the Miscellaneous Case No. 5 of 2005 seeking certain amendment. The proposed amendment, inter alia, related to area and description of the property. The said petition seeking amendment was dismissed vide order dated 17th March 2012. However, the petitioner was dissatisfied with the said order and another petition was filed seeking recall of the order dated 17th March 2012 which was dismissed by subsequent order dated 20.02.2013. The order dated 17th March 2012 as well as order dated 20th February 2013 are under challenge in the present proceedings. 4. The learned counsel for the petitioner has submitted that the various documents produced before this Court would reveal that the amendment was sought only to rectify the errors committed by the petitioner and so far as identity of the property is concerned, the same is not in dispute. 5. The learned counsel has further submitted that the petition for amendment ought to have been allowed by the learned Court and instead of allowing the petition seeking recall of the order refusing amendment, the learned Court has dismissed the same and therefore, the impugned orders call for interference under Article 227 of the Constitution of India. 6. Learned counsel appearing on behalf of the respondents has opposed the prayer and has submitted that the description of the property, area, boundary etc. is materially different from the main petition which was filed as Miscellaneous Case No. 5 of 2005. The learned Court has passed a reasoned order refusing amendment and further, the learned Court has also passed a reasoned order refusing to recall the order. He submits that both the orders have been rightly passed and do not call for any interference. 7. The learned counsel for the respondents has also submitted that the petitioner has suppressed the material facts before this Court, inasmuch as, the petitioner has not disclosed about the filing of earlier writ petition being W.P.(C) No. 1554 of 2008 which was dismissed on 2 27th March 2008 in which the various litigations which were instituted by the petitioners have also been mentioned. He submits that the petitioner had also filed a title suit being Title Suit No. 5 of 1996 and the same was also dismissed. The Hon'ble Supreme Court has refused to interfere with the said order passed in W.P.(C) No. 1554 of 2008 and the same has attained finality. 8. Learned counsel for the petitioner, in response, has submitted that the order passed in W.P.(C) No. 1554 of 2008 has nothing to do with the present proceedings, inasmuch as, the present proceedings relate to amendment sought for in the Miscellaneous Case No. 5 of 2005. 9. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the description of property which was mentioned in the petition of Miscellaneous Case No. 5 of 2005, as contained in paragraph 10 of the said petition, and the description of the property which was sought to be amended through amendment petition were materially different. This aspect of the matter has been taken care of by the learned Court while refusing to allow the amendment vide order dated 17th March 2012. The reasons assigned by the learned Court are quoted as under: "Heard both parties and perused the case record.
Decision
There is no doubt that it is not a regular suit and the petitioner has filed this Miscellaneous case under order-21, Rule-99,100 and 101 read with section 151 CPC. Under Order 21, Rule 99 any person other than the judgment debtor may make an application if he has not been dispossessed by the holder of a decree. The prayer has been made to remove the illegal possession of the decree-holder from the land dispossessed. The Miscellaneous petition was filed in the year 05 and the amendment petition has been filed in the year 2011. The petition of full description of the land he was allegedly dispossessed and the proposed amendment is likely to change the area and boundary where-from petitioner was allegedly dispossessed. The case is not a trial, rather a limited question is under consideration. Accordingly, the petition dated, 11.11.2011 is hereby disposed of as rejected." the petitioner dated 05.03.05 contains 10. This Court finds that the order dated 17.03.2012 is a well- reasoned order and it does not call for interference in limited 3 jurisdiction under Article 227 of the Constitution of India. This Court also finds that so far as the subsequent petition seeking recall of order dated 17.03.2012 is concerned, the same was filed alleging deliberate suppression and misrepresentation of facts by the advocate of the respondent that the decree of eviction suit no.21 of 1992 was not collusive with respect to area and boundary. It was asserted that the decree was collusive. The learned court considered the case of the respective parties and rejected the petition seeking recall of order dated 17.03.2012 by citing reasons as follows: from said petition dated 16.12.11. Apart "Before passing any order I would like to go through the original amendment petition dated 11.11.11 and rejoinder to the some typographical error the main proposed amendment is that petitioner wants to add schedule of the illegal dispossession. In which the petitioner wants to add 0.01/2 acre out of lease area 36.7 decimal along with boundary of the said land. In the rejoinder to the said petition the opposite party compared the description of land given in petition dated 31.10.07 and present petition dated 11.11.11 which was well within the knowledge of the petitioner. In the petition dated 11.10.07 the petitioner described the area 9½ decimal land whereas in the present petition he has described 1½ decimal land. From the perusal of order-sheet it appears that the order dated 17.03.12 was passed after hearing both the parties. It is not the case that the order is passed in absence of the petitioner. Now, petitioner seeks recall of the order dated 17.03.12 because the order was obtained on deliberate suppression and mis-representation of fact by advocate of opposite party. I could not understand what stopped the learned counsel for the petitioner to raise the said deliberate mis-representation of fact. From perusal of order dated 17.03.12 I found that the court passed the order after hearing both the parties and perusal of petition and rejoinder on record. Learned counsel the petitioner referred a for judgment reported in 2004 (1) JCR 4 (SC) in which Hon'ble Supreme Court held that the, "Courts have inherent power to set aside an order obtained by practicing fraud upon the court, and that where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. In a judgment reported in (2004) 1 SCC 328. The Hon'ble Supreme court held that unintentional mistake of the court which may cause prejudice to any party may be corrected 4 but an intentional omission however erroneous cannot be corrected. It is correct that, it is duty of the court to recall its order passed on a wrong assumption of facts. But in this case the petitioner failed to establish that order dated 17.03.12 obtained by opposite party practicing fraud upon the court. It is also not established by the petitioner that court has committed unintentional mistake which needs to be corrected. I find that in fact court pass the order having gone through the petition & rejoinder filed by the petitioner and opposite party. Moreover, remedy to challenge the said order was available to the petitioner, but petitioner has not exhausted that remedy. In view of the matter I am not inclined to recall the order dated 17.03.12. Hence, petition 21.04.12 is hereby rejected." 11. This Court finds no illegality in the impugned order dated 20.02.2013 refusing to recall the order dated 17.03.2012 passed in Miscellaneous Case No. 5 of 2005. The order is well reasoned. Accordingly, this Court finds no reason to interfere with the impugned orders dated 20.02.2013 and 17.03.2012 passed in Miscellaneous Case No. 5 of 2005. 12. However, it is observed that the Miscellaneous Case No. 5 of 2005 is certainly required to be taken to a logical end. The learned Court is directed to do the needful and dispose of Miscellaneous Case Parties to cooperate. No. 5 of 2005 expeditiously. 13. 14. This writ petition is accordingly disposed of. 15. 16. Let a copy of this order be communicated to the Court Pending interlocutory application, if any, is closed. concerned through 'FAX'. Pankaj (Anubha Rawat Choudhary, J.) 5