Shri Upendra Kumar And Another v. Late

1. Application has been filed seeking recall of order dated 18 September, 2025 whereby the writ petition was disposed of with following directions:- "6. Considering aforesaid facts and circumstances, particularly the fact that such applications are already pending consideration before court concerned in the suit proceedings wherein defendants have already put in appearance and filed their written statement, the court concerned being the Additional Civil Judge (Senior Division), Court No.43, Lucknow is directed to decide aforesaid Applications expeditiously without granting any adjournment on the next date fixed, i.e. 03.10.2025. In case for some reason, the applications cannot be decided on the next date fixed, the trial court shall decide the aforesaid applications within a period of ten days thereafter."

2. Heard Mr. Pritish Kumar learned Senior Counsel assisted by Mr. Sanjay Kumar learned counsel for applicant and Mr. Rama Shankar Singh learned counsel for opposite party/petitioner.

3. On 31st October 2025, following order had been passed on the recall application:- "1. Heard learned counsel for parties.

2. As noticed earlier, application has been filed seeking recall of the order dated 18th September, 2025. The primary gist of allegation seeking recall is that the said order was obtained by material concealment on the part of petitioners who did not disclose the aspect that an objection to petitioners' application under Section 151 CPC was already pending before trial court alongwith another application filed by the 2 A227 No. 5391 of 2025 applicants who were arrayed as defendant No.8 in the proceedings with the said application also having been filed under Section 151 CPC with regard to maintainability of the applications filed by petitioner (defendant No.2).

3. The aforesaid aspect is disputed by learned counsel for petitioner who submits that no such applications had been filed and were pending as on 18th September, 2025.

4. In view of such factual dispute, list this case on 6th November, 2025 at 2.15 P.M. in order to enable trial court being the court of Additional Civil Judge (Senior Division), Court No. 43, Lucknow to furnish a report with regard to date of filing of the applications under Section 151 CPC and objections to the application of petitioner (defendant No.2) under Section 151 CPC.

5. Learned Senior Registrar of this Court is required to communicate this order to the trial court."

4. In pursuance of directions issued by this court, a report dated 6th November, 2025 has been submitted by trial court specially indicating that an application under Section 151 CPC, numbered as C174 was filed by defendant No.2 Upendra Kumar to enforce compliance of the injunction order dated 20th March, 2013. The application was filed on 9th July, 2025. The report also indicates that subsequent and in reply thereto, another application numbered as 175A was filed by defendant No. 8 Alok Kumar on 27th August, 2025 along with another application numbered as 176A on the same date by the same defendant as well as the Defendant No. 3/1, Veena Binay Kumar.

5. The report therefore evidences that objections to the application preferred by opposite party/petitioner were on record as on 18th September, 2025.

6. Learned counsel for opposite parties/petitioner has refuted the aforesaid report with assertion that prior to filing of the aforesaid objections to the application under Section 151 CPC, preferred by Defendant No. 2, the copies therof were supplied only on 10th September, 2025. He has also adverted to the order sheet dated 27th August, 2025 to submit that the order sheet clearly indicates that no such applications were on record as on 27th August, 2025.

7. Nonetheless, without adverting to the conduct or otherwise of the Defendant No.2, the report which has been submitted by trial court indicates the aforesaid aspect that objections to the application under Section 151 CPC were on record as on 27th August, 2025. 3 A227 No. 5391 of 2025

8. In the objections to the application for recall, the opposite party/petitioner in paragraph 16 thereof in the affidavit filed in support of application has also submitted that an undated application was filed on 27th August, 2025 but was deliberately served upon the petitioners only on 10th September 2025 thereby attempting to create an artificial delay and mislead this court.

9. The averment made in paragraph 16 of the affidavit also indicates that the objections to the application under Section 151 CPC had already been filed and served upon the opposite party/petitioner on 10th September, 2025 well before the order dated 18th September, 2025 was passed.

10. It appears that such a fact was not brought to the notice of this Court leading to passing of the order dated 18th September, 2025. In view of circumstances indicated herein above, the order dated 18th September, 2025 is hereby recalled. The application for recall of the order is therefore allowed. (Memo of writ petition)

11. This petition had been filed under Article 227 of the Constitution of India for a prayer for allowing the application under Section 151 CPC dated 7 July 2025 filed in regular suit No. 1574 of 2012 by the defendants 2 and 7 who are petitioners in present writ petition. Further prayer for allowing the application under Order XXVI Rule 9 read with Order XXXIX Rule 7 of the Code dated 24th April, 2025 filed by petitioners in the suit had also been sought. In the alternative, prayer has been made for a direction to the court concerned to expedite hearing of aforesaid application and to strictly comply with order dated 30th May 2014 passed by this Court for expediting proceedings of the regular suit.

12. This petition had earlier been disposed of vide order dated 18th September 2025 but the said order has been recalled vide order passed today itself.

13. Since the issue under question is trivial in nature, the petition is being disposed of again today itself with the consent of learned counsel for parties.

14. Heard Mr. Rama Shankar Singh learned counsel for petitioner and Mr. Pritish Kumar learned Senior Counsel assisted by Mr. Sanjay Kumar learned counsel for opposite parties. 4 A227 No. 5391 of 2025

15. In view of order which has been passed today itself, recalling order dated 18 September 2025, it has been noticed as per report submitted by the trial court dated 6th November 2025 that as on the date of disposal of writ petition on 18 September 2025, objections to the application number C-174 under Section 151 CPC filed by the defendant No.2, Upendra Kumar had already been filed and were pending adjudication. In the considered opinion of this court, substantive justice would be served in case the trial court is directed to decide the pending applications in the regular suit under Section 151 CPC and objections thereto as were on record on 18th September 2025.

16. In view of aforesaid, the trial court is directed to decide the applications pending in regular suit No. 1574 of 2012, Virendra Kumar and others versus Sushil Kumar and Others expeditiously. It is made clear that this order is being passed only with regard to applications, the disposal of which is being sought in present writ petition and objection filed thereto including application Nos. 175A & 176A. Applications which are pending in regular suit as on 18 September 2025 filed by defendants 2 and 8 shall be considered by the trial court and decided expeditiously. It is left to the discretion of the trial court as to the primacy of the applications which are required to be decided prior to decision on the other applications. The applications are to be decided by the trial court expeditiously, preferably within a period of eight weeks from the date a certified copy of this order is brought on record of proceedings.

17. It has been intimated by learned counsel for parties that the presiding officer is currently on leave. In view of such a submission and in view of urgency being expressed by learned counsel for parties, liberty is granted to the parties to file an appropriate application before the District Judge concerned, if so advised, for transfer of the case. The said application may be considered and decided by the district judge expeditiously. In case the regular suit is transferred, the trial court concerned shall abide by the directions issued by this court.

18. With the aforesaid directions, the petition stands disposed of. November 11, 2025 prabhat (Manish Mathur,J.)

1. Application has been filed seeking recall of order dated 18 September, 2025 whereby the writ petition was disposed of with following directions:- "6. Considering aforesaid facts and circumstances, particularly the fact that such applications are already pending consideration before court concerned in the suit proceedings wherein defendants have already put in appearance and filed their written statement, the court concerned being the Additional Civil Judge (Senior Division), Court No.43, Lucknow is directed to decide aforesaid Applications expeditiously without granting any adjournment on the next date fixed, i.e. 03.10.2025. In case for some reason, the applications cannot be decided on the next date fixed, the trial court shall decide the aforesaid applications within a period of ten days thereafter."

2. Heard Mr. Pritish Kumar learned Senior Counsel assisted by Mr. Sanjay Kumar learned counsel for applicant and Mr. Rama Shankar Singh learned counsel for opposite party/petitioner.

3. On 31st October 2025, following order had been passed on the recall application:- "1. Heard learned counsel for parties.

2. As noticed earlier, application has been filed seeking recall of the order dated 18th September, 2025. The primary gist of allegation seeking recall is that the said order was obtained by material concealment on the part of petitioners who did not disclose the aspect that an objection to petitioners' application under Section 151 CPC was already pending before trial court alongwith another application filed by the 2 A227 No. 5391 of 2025 applicants who were arrayed as defendant No.8 in the proceedings with the said application also having been filed under Section 151 CPC with regard to maintainability of the applications filed by petitioner (defendant No.2).

3. The aforesaid aspect is disputed by learned counsel for petitioner who submits that no such applications had been filed and were pending as on 18th September, 2025.

4. In view of such factual dispute, list this case on 6th November, 2025 at 2.15 P.M. in order to enable trial court being the court of Additional Civil Judge (Senior Division), Court No. 43, Lucknow to furnish a report with regard to date of filing of the applications under Section 151 CPC and objections to the application of petitioner (defendant No.2) under Section 151 CPC.

5. Learned Senior Registrar of this Court is required to communicate this order to the trial court."

4. In pursuance of directions issued by this court, a report dated 6th November, 2025 has been submitted by trial court specially indicating that an application under Section 151 CPC, numbered as C174 was filed by defendant No.2 Upendra Kumar to enforce compliance of the injunction order dated 20th March, 2013. The application was filed on 9th July, 2025. The report also indicates that subsequent and in reply thereto, another application numbered as 175A was filed by defendant No. 8 Alok Kumar on 27th August, 2025 along with another application numbered as 176A on the same date by the same defendant as well as the Defendant No. 3/1, Veena Binay Kumar.

5. The report therefore evidences that objections to the application preferred by opposite party/petitioner were on record as on 18th September, 2025.

6. Learned counsel for opposite parties/petitioner has refuted the aforesaid report with assertion that prior to filing of the aforesaid objections to the application under Section 151 CPC, preferred by Defendant No. 2, the copies therof were supplied only on 10th September, 2025. He has also adverted to the order sheet dated 27th August, 2025 to submit that the order sheet clearly indicates that no such applications were on record as on 27th August, 2025.

7. Nonetheless, without adverting to the conduct or otherwise of the Defendant No.2, the report which has been submitted by trial court indicates the aforesaid aspect that objections to the application under Section 151 CPC were on record as on 27th August, 2025. 3 A227 No. 5391 of 2025

8. In the objections to the application for recall, the opposite party/petitioner in paragraph 16 thereof in the affidavit filed in support of application has also submitted that an undated application was filed on 27th August, 2025 but was deliberately served upon the petitioners only on 10th September 2025 thereby attempting to create an artificial delay and mislead this court.

9. The averment made in paragraph 16 of the affidavit also indicates that the objections to the application under Section 151 CPC had already been filed and served upon the opposite party/petitioner on 10th September, 2025 well before the order dated 18th September, 2025 was passed.

10. It appears that such a fact was not brought to the notice of this Court leading to passing of the order dated 18th September, 2025. In view of circumstances indicated herein above, the order dated 18th September, 2025 is hereby recalled. The application for recall of the order is therefore allowed. (Memo of writ petition)

11. This petition had been filed under Article 227 of the Constitution of India for a prayer for allowing the application under Section 151 CPC dated 7 July 2025 filed in regular suit No. 1574 of 2012 by the defendants 2 and 7 who are petitioners in present writ petition. Further prayer for allowing the application under Order XXVI Rule 9 read with Order XXXIX Rule 7 of the Code dated 24th April, 2025 filed by petitioners in the suit had also been sought. In the alternative, prayer has been made for a direction to the court concerned to expedite hearing of aforesaid application and to strictly comply with order dated 30th May 2014 passed by this Court for expediting proceedings of the regular suit.

12. This petition had earlier been disposed of vide order dated 18th September 2025 but the said order has been recalled vide order passed today itself.

13. Since the issue under question is trivial in nature, the petition is being disposed of again today itself with the consent of learned counsel for parties.

14. Heard Mr. Rama Shankar Singh learned counsel for petitioner and Mr. Pritish Kumar learned Senior Counsel assisted by Mr. Sanjay Kumar learned counsel for opposite parties. 4 A227 No. 5391 of 2025

15. In view of order which has been passed today itself, recalling order dated 18 September 2025, it has been noticed as per report submitted by the trial court dated 6th November 2025 that as on the date of disposal of writ petition on 18 September 2025, objections to the application number C-174 under Section 151 CPC filed by the defendant No.2, Upendra Kumar had already been filed and were pending adjudication. In the considered opinion of this court, substantive justice would be served in case the trial court is directed to decide the pending applications in the regular suit under Section 151 CPC and objections thereto as were on record on 18th September 2025.

16. In view of aforesaid, the trial court is directed to decide the applications pending in regular suit No. 1574 of 2012, Virendra Kumar and others versus Sushil Kumar and Others expeditiously. It is made clear that this order is being passed only with regard to applications, the disposal of which is being sought in present writ petition and objection filed thereto including application Nos. 175A & 176A. Applications which are pending in regular suit as on 18 September 2025 filed by defendants 2 and 8 shall be considered by the trial court and decided expeditiously. It is left to the discretion of the trial court as to the primacy of the applications which are required to be decided prior to decision on the other applications. The applications are to be decided by the trial court expeditiously, preferably within a period of eight weeks from the date a certified copy of this order is brought on record of proceedings.

17. It has been intimated by learned counsel for parties that the presiding officer is currently on leave. In view of such a submission and in view of urgency being expressed by learned counsel for parties, liberty is granted to the parties to file an appropriate application before the District Judge concerned, if so advised, for transfer of the case. The said application may be considered and decided by the district judge expeditiously. In case the regular suit is transferred, the trial court concerned shall abide by the directions issued by this court.

18. With the aforesaid directions, the petition stands disposed of. November 11, 2025 prabhat (Manish Mathur,J.)