# Vinay Kumar Chowdhary v. Ghanshyam Narain Kohli

- **Citation:** (2001) 2 ILRA 246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-02-29
- **Case number:** Varanasi in Case No. 155 of 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-chowdhary-v-ghanshyam-narain-kohli-39874
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
246
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By the Court

1. An order was passed on
29.02.2000 (annexure no. 9 of 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
Trush
Lachchi
Ram
Dharamshala,
Varanasi in accordance to the scheme,
dated 13.08.1938 prepared in O.S. No.
7/27. The opposite party on 29.05.2000
moved an application under order 9 Rule
13 C.P.C. 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 9 Rule 13
C.P.C. The application for condonation of
delay was also opposed. However, by
order, dated 21.08.2000, the learned
District Judge, Varanasi has allowed the
application for condonation of delay and
also the application for recall of the order,
2All] Vinay Kumar Chowdhary V. Ghanshyam Narain Kohli
247
dated 29.02.2000 passed by him and has
sent the matter for fresh decision to the
Ivth Additional District Judge, Varanasi
alongwith
other
connected
matters.
Aggrieved by it, the present revision has
been preferred.

2.
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.

3.
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
30.05.2000 (annexure no. 6 to the
affidavit) ordered that the stay shall be
considered after disposal of application
under Section 5 of Limitation Act. That
inspite of that order the learned District
Judge has passed a composite order
allowing the application under Section 5
of 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 state of M.P. and another Vs. Pradeep
Kumar and another (2000) 7 Supreme
Court Cases 372.

It was observed in the case:

"The object of enacting Rule 3-A in
order 41 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
unremidiable or irredeemably fatal against
the appellant if the memorandum is not
accompanied by any such application at
the first instance."

4. I have considered the arguments,
but disagree with the same. The above
observation is based on Rule 3-A in order
41 C.P.C. which applies to the appeals.
This provision cannot be applied to
miscellaneous application. Rule 3-A of
order 41 C.P.C. does not apply to the
miscellaneous applications.

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

6. 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
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
248
counsel for the revisionist therefore,
cannot be accepted.

7. It is further contended that order 9
Rule 13 C.P.C. 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 9, Rule
13 C.P.C. and his application was not
maintainable. It is also contended that
proceedings
are
miscellaneous
proceedings and therefore, the provisions
of Order 9, Rule 13 C.P.C. does not
apply.

8. This argument is also not correct.
By virtue of section 141 C.P.C. order 9
Rule 13 C.P.C. also applies to the
miscellaneous proceedings. The question
is whether the opposite party can move an
application under order 9, Rule 13 C.P.C.
though
he
was
not
party
to
the
proceedings. According to the opposite
party the order was obtained by practicing
fraud and surpressing the facts and the
recall of the order has been requested on
this ground.

9.

Learned
counsel
for
the
respondent has referred to several cases.
The first is: Surajdeo Vs. Board of
Revenue, AIR 1982, Allahabad page 23.

10. 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.

11. The other case referred to is:
United India Insurance Co. Ltd. Vs.
Rajendra Singh & others 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 practicing 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."

12. The learned District Judge has
observed that the order has been obtained
by practicing fraud and surpressing of the
facts. Therefore, he can recall the order,
under Order 9, Rule 13 C.P.C. and the
argument that the application is not
maintainable and cannot be accepted.

13. 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 13.08.1938. 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 under Section 92 C.P.C. for
appointment of trustees or for removal.
2All] Shyam Sunder and others V. Firm Narain Das Bal Krishna Das and others
249
The application for recall of order is only
an abuse of the process of the Court. That
no fraud was practiced. It is further
contended that in the impugned order it
has been observed that miscellaneous
Case No. 390/88 Ghanshyam Narain Vs.
Gauri Shanker Chaudhary and Case No.
322/88 are pending in the court regarding
this Trust. That this fact was suppresed. 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 injuction order
was issued on 26.09.88 (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 no. 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 practiced.

14. 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 suit
was filed. The applicant claim 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.

15. It may also be mentioned that by
order, dated 21.07.83 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
is 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
surpressed and fraud was practiced.

16. 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
alongwith the other pending cases. There
is no reason to interfere in the impugned
order.

17. The revision is without merit and
is hereby dismissed.

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