WPMS/574/2009 of SMT MEHRU B GUPTA and OTHERS Vs KAILASH NATH GUPTA and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Review Application MCC no. 385 / 2015

Writ Petition No. 574 of 2009 (M/S)

Smt. Mehru B. Gupta & others

……. Petitioners

versus

Kailash Nath Gupta & others ……. Respondents

Mr. Rajendra Dobhal, Sr. Advocate assisted by Mr. Devang Dobhal, Advocate for the petitioners.

Mr. Arvind Vashisth, Sr. Advocate assisted by Mr. Vivek Pathak, Advocate for review applicants / respondent nos. 3 and 4. Mr. Piyush Garg, Advocate for respondent no. 5.

with

Review Application MCC no. 387 / 2015

Appeal from Order No. 126 of 2009

Smt. Mehru B. Gupta & others

……. Appellants

versus

Kailash Nath Gupta & others

……. Respondents

Mr. Jagdish Singh Bisht, Advocate for the appellant. Mr. Arvind Vashisth, Sr. Advocate assisted by Mr. Vivek Pathak, Advocate for review applicants / respondent nos. 3 and 4.

with

Review Application MCC no. 384 / 2015

Appeal from Order No. 166 of 2009

S.N. Forestry Ltd., Rishikesh

……. Appellant

versus

Kailash Nath Gupta & others

……. Respondents

Mr. Pankay Purohit and Mr. Pramod Bailwal, Advocates for petitioners. Mr. Arvind Vashisth, Sr. Advocate assisted by Mr. Vivek Pathak, Advocate for review applicants / respondent nos. 3 and 4.

U.C. Dhyani, J.(Oral)

Above mentioned review applications have been filed on behalf of respondent nos. 3 and 4 in the aforesaid cases for reviewing the order dated 13.05.2015 with the request to set aside the said order (dated 13.05.2015), whereby writ petition alongwith connected matters filed by the petitioners were disposed of by this Court.

2) The grounds taken up in the review applications are gainfully reproduced here-in-below for convenience:

“(i) The writ petition was listed on 12.05.2015 and Sr. Advocate Mr. Sharad Sharma assisted by Smt. Indu Sharma, Advocate appeared for the review applicants. For some unknown reason he made statement in the Court that he does not wish to appear and the instructing counsel also opted to withdraw their Vakalatnama. Mr. Sharad Sharmaalso made statement that the client is also present inthe Court. Thereafter, the matter was posted for 13.05.2015.

(ii) The review applicant could receive record of case from the counsel Smt. Indu Sharma in the evening of 12.05.2012 and then he tried to look for an alternative arrangement and engaged Sri T.C. Pande, Advocate to instruct another Sr. Advocate.

(iii) On 13.05.2015, in presence of the applicant, Sri T.C. Pande produced his Vakalatnamain Court and sought day’s further time for engaging Sr. Advocate so that the matter which involved the property of public religious and charitable trust may be presented properly.

(iv) This Hon’ble High Court, however, proceeded to decide the writ petition and the order dated 13.05.2015 does not reveal that Sri T.C. Pandey was heard on merit. It is submitted that evenhis Vakalatnama is not on record.

(v) Thus the order dated 13.05.2015 was passed without hearing the applicantand without providing them any opportunity of being heard.

(vi) The worth of property of S.R.G. Trust which is under threat of sale and transfer by unauthorized person is more than 50 crore and public religious and charitable trust will suffer irreparable loss and injury in case the interim order / impugned order is set aside.

(vii) The order dated 13.05.2015 does not show any reason whythe orders dated 04.06.2008, i.e., granting leave to institute suit under Section 92 CPC and order dated 15.09.2008 and order dated 07.03.2009 have been set aside.

(viii) As result of the order dated 13.05.2015, the suit has been reset and has been put back to the position when the suit was instituted and there are no.reason in the impugned order

(ix) The order granting leave to institute suit under Section 92 CPC cannot be challenged by way of writ petition and as held by Hon’ble Apex Court in Vidhyodya Trust, an application for revocation of leave is the remedy.

(x) The Court while passing the judgment and order dated 13.05.2015 relied upon the judgment and decree dated 31.07.2009, passed by Addl. Civil Judge (S.D.), Kanpur in O.S. no. 792 of 1999, Smt. Chandrani Devi Gupta vs Sri Kishan wherein the suit filed by Smt. Chandrani Devi Gupta, wherein Kailash Nath Gupta and Omkar Nath Gupta proforma party was decreed for relief of possession against the defendant no. 1 Sri Kishan was not at all visionaryof S.R.G. Trust. Neither Smt. Chandrani Devi Gupta nor Sri Kishan are party in the suit leading to the impugned judgment and therefore, the judgment and decree dated 31.07.2009, which was instituted seeking possession of one property out of various properties which form the subject matter of the suit leading to the filing of present appeal cannot at all affect grant of leave to institute the suit.

(xi) Grave injustice has occasioned to the applicant from the order dated 13.05.2015 and the property of public charitable trust is likely to be affected and property of trust will be dissipated.

(xii) That suit for possession, i.e., O.S. no. 792 of 1992 was decreed in connection with property Municipal no. 138/35C Kailash Nath Gupta and the temple and other building situated in that property and though Sri Kailash Nath Gupta @ Swami Kailashanand and Sri Omkar Nath Gupta were proforma defendants in the suit aforementioned and even though it is the aforesaid decree of possession in that suit no. 792 of 2009 attained finality of Swami Kailashanand, it cannot be said that suit under Section 92, which was instituted seeking relief in connection with SRG trust and in connection with its various properties, described in the plaint, would be affected by decree for ejectment in O.S. no. 792 of 1992 in any manner.

(xiii) While upsetting the order dated 20.03.2009 passed in O.S. no. 16 of 2008, application for interim injunction paper no. 10C was allowed and this Hon’ble Court has not recorded any finding onprima facie and balance of convenience and mischiefof irreparable loss and injury while passing the order.sought to be recalled

(xiv) That decree of possession dated 31.07.2009, passed in O.S. no. 792 of 1992 has no affect on the injunction order issued vide order dated 20.03.2009, in O.S. no. 16 of 2008 and thus the order sought to be reviewed, may be set aside and the appeal filed by defendant may be dismissed with costs throughout.”

[Emphasis supplied]

3) Hon’ble Supreme Court, while rendering decisions in Most Rev. P.M.A. Metropolitan & others vs Moran Mar Marthoma & another, 1995 Supp (4) SCC 286; Oriental Insurance Co. Ltd. & another vs Gokulprasad Maniklal Agarwal & another, (1999) 7 SCC 578; Ram Lakhan vs Presiding Officer & others, AIR 2001 SC 286; Green View Tea & Industries vs Collector, Golaghat, Assam & another, (2004) 4 SCC 122, emphasized that an order passed by the Court should be reviewed on account of mistake or error apparent on the face of the record, or for other sufficient reason.

4) In paragraph no. 5 of B.S. Adityan and others vs B. Ramachandran Adityan and others, (2004) 9 SCC 720, the following was observed by the Hon’ble Apex Court:

“In the normal course if an appeal is filed against an order granting permission to party to file suit as falling under Section 92 CPC, we do not normally interfere with an order made by the High Court nor do we think of entertaining proceeding of this nature under Article 136 of the Constitution because the order made thereunder will not determinethe rights of the parties, but only enable party to”.initiate proceeding

[Emphasis supplied]

5) Learned counsel for the review applicants placed reliance on the decision of Municipal Corporation, Hyderabad vs Sunder Singh, (2008) 8 SCC 485 to argue that the court should be slow in exercising its discretionary power under Order 41 Rule 23 CPC and unless the conditions precedent therefor are satisfied, Rule 23 should not be invoked, which is an enabling provision.

6) The name of Mr. T.C. Pande, Advocate, in the WPMS no. 574 of 2009, A.O. no. 166 of 2009 and A.O. no. 126 of 2009, who was present for the respondents, indicate that learned counsel for the respondents was heard on merits and it was not necessary for the Court to have indicated in the order, which is prayed to be reviewed, that ‘the Court has heard learned counsel for the parties’, as is the normal practice of certifying that the Court heard the disputants before passing the order.

7) It is, therefore, wrong on the part of the deponent Krishan Avtar Gupta to say in his affidavit that the order dated 13.05.2015 was passed without hearing the review applicants and without providing them due opportunity of hearing. Other grounds which are taken by the review applicants are hardly the grounds for reviewing an order, which was passed on merits after affording due opportunity of hearing to the parties.

8) Further, the contents of para (iii) and (iv) of the grounds of review are self-contradictory. No request

was made by Mr. T.C. Pande to grant time for engaging Senior Advocate. Moreover, the grounds taken up by the Review Applicant indicates as if an appeal has been filed. It is blatant lie on the part of the Review Applicant to say that no opportunity of hearing was given to any party. It is rather contumacious on his part to say so.

9) There is no dispute about the proposition of law put forward by learned counsel for the review-applicants before this Court. The only question, which arises for consideration of this Court is – whether such infirmities, if any, attract Section 114 or Order 47 of the Code or not? Whether the order so passed by this Court on 13.05.2015 was on account of some mistake or error apparent on the face of record? Whether the same is to be reviewed for any other sufficient reason? The reply to the said questions, in the estimation of this Court, is in the ‘negative’. In other words, the same do not fall within the purview of Section 114 or Order 47 of the Code.

10) By filing such review applications, the review-applicants seek to re-argue the cases, which is not permissible in law. The review applications, therefore, fail and are dismissed.

(U.C. Dhyani, J.)

Dt. June 24, 2015.

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