Sri Manish Verma v. Dr. Jagat Narain Subarti Charitable Trust

Sri Manish Verma ...Petitioner Versus Dr. Jagat Narain Subarti Charitable Trust and another (cid:133)Respondents Present : Mr. Dharmendra Barthwal, Counsel, for the petitioners. Mr. Shobhit Saharia, Counsel for respondent no.2. Hon(cid:146)ble Sudhanshu Dhulia, J. (Oral)

#1. Heard Mr. Dharmendra Barthwal, Counsel for the petitioners and Mr. Shobhit Saharia, Counsel respondent no.2.

#2. The petitioners in the above writ petitions have challenged the validity, illegality and propriety of order dated 13.7.2012 passed by learned District Judge, Dehradun. The said order has been passed in appeal and by the said order the appeal has been admitted for hearing and directions given to register the appeal as such. While doing so, the learned District Judge has also stayed the operation of the judgment and decree dated

31.5.2012.

#3. The principal contention of the petitioner before this Court is that the appeal was belated as it was filed beyond the statutory limitation of 30 days. Consequently it was belated by about ten or eleven days, as it is 2 apparent from the records. Hence, the learned District Judge ought to have heard Section 5 application which in fact accompanied the appeal, before admitting the appeal.

#4. In the first blush, this argument is indeed attractive inasmuch as an appeal which is filed beyond the period of limitation is indeed a defective appeal and it must be accompanied with delay condonation application and only if such an application is allowed appeal can be admitted. What makes this case different, however, is that in that admitting reasons have been assigned by the learned District Judge, which are that the decree and judgment against which appeal has been filed has been obtained by collusion and fraud ! Learned counsel for the respondents caveator Mr. Shobhit Saharia submits that the suit was filed by the petitioner before the trial court for cancellation of a sale deed dated 22.9.2008, and the suit was filed against the defendant, namely, Sri Sri 1008 Narayan Swami Charitable Trust which was represented through the real brother of the plaintiff i.e. present petitioner before this Court whereas the said trust itself was dissolved on 15.9.2011. The name of trust was changed on 15.9.2011 to Dr. Jagat Narain Subarti Charitable Trust and most of the trustees including real brother of the plaintiff resigned from the earlier trust. Hence there was no occasion to make a trust as a party which in fact did not exist at the relevant time, and this fact was known to the plaintiff. Moreover, the suit was filed on 3.5.2012 and decree was obtained on 31.5.2012 i.e. within less than a month. It is for this reason that the learned District Judge while admitting the appeal states as under: 3 (cid:147)From facts mentioned application as well as in the appeal memo, the impugned judgment and decree appears to be collusive, fraudulent and jurisdiction of the trial court is also disputed. The judgment has circumstances, I am of the view that the appeal filed is within time from the date of the judgment and decree. knowledge of Appellant is permitted to file this appeal and the appeal is admitted for hearing.(cid:148) delivered haste. In

#5. The learned counsel the petitioner, Mr. Dharmendra Barthwal submits that irrespective of the above the appeal was belated by about ten days and consequently without first condoning the delay the appeal ought not to have been admitted. This submission of learned counsel for the petitioner has to be rejected at the very threshold itself.

#6. The factual aspect stated at the bar by caveator Mr. Shobhit Saharia that the trust being represented by real brother of the plaintiff and that the suit itself has been filed within less than a month and that has not been denied by the petitioner/plaintiff. Therefore observation of learned District Judge while admitting the appeal only expresses anguish and the pain of court which sees both fraud and collusion in the matter. Indeed from the facts of the case, the observation of the learned District Judge cannot be faulted and though cases of fraud and collusion do come before courts, in the present case there are allegations of both fraud as well as collusion. Such cases are an attack on the very foundation of the judicial system. The Hon(cid:146)ble Apex Court in the case of Ramchandra Ganpat Shinde and Another Vs. State of Maharashtra and Others reported in (1993) 4 SCC 216 has held as under: 4 justice ingrained invigorate (cid:147)13. Respect for law is one of the cardinal principles for an effective operation of the popular Constitution, Government. The faith of the people is the source and succour to justice intertwined with the efficacy of law. The principle of in our conscience and though ours is a nascent democracy which has now taken deep roots in our ethos of adjudication (cid:150) be it judicial, quasi-judicial or administrative as hallmark, the faith of the people in the efficacy of judicial process would be disillusioned if the parties are permitted to abuse its process and allowed to go scot free. It is but the primary duty and highest responsibility of the court to correct such orders at the earliest and restore the confidence of the litigant public, in the purity of the fountain of justice; remove stains on the efficacy of judicial adjudication and respect for rule of law, lest people would lose faith in the courts extra- constitutional remedies which is a death-knell to the rule of law.(cid:148) recourse Fraud vitiates everything. Moreover a decree obtained on the basis of collusion and fraud is no decree in the eyes of law. In fact it is a sham. This Court therefore rejects the submissions of the petitioner.

#7. Moreover, on technical aspect as well, which has been so vehemently raised by the petitioner, little can be given in favour of the petitioner for the simple reason that under the peculiar facts and circumstances of the case the date of limitation will be counted not from the date of decree but from the date of the knowledge of the appellant. The appellant before the court below are protected by Division Bench judgment of Hon(cid:146)ble Allahabad High Court in National Thermal Power Corpn. Vs. Raghunath Pd. and others reported in AIR 1981 All 344 where it has been held that period of limitation can be counted from the date of knowledge and 5 in the present case the appellant had knowledge on

30.6.2012 as it is given in the order dated 13.7.2012 and if the period counted from 30.6.2012 the appeal was well in time. Further the delay in any case was accompanied by condonation of delay application under Section 5 of the Limitation Act even though no orders have been passed in the said case by the appellate court. Yet it will not come in the way of the appellant as delay, if any, is deemed to have been condoned in the case.

#8. Consequently, the writ petitions fail and are hereby dismissed.

#9. It is, however, made clear that any observations made by this Court is only for the purposes of the present writ petitions and it shall have no bearing on the disposal of the appeal, which shall be adjudicated on the pleadings and the law applicable to it.

#10. No order as to costs. Kuldeep (Sudhanshu Dhulia, J.)

18.10.2012