MURLIDHAR VALECHA Vs. RAMANDAS PAMNANI

JUDGEMENT

(1.) This MCC has been filed by the applicants for recalling of the judgment dtd. 4/5/2022 passed by this Court in FA No. 176 of 2008 [Ramandas Pamnani Vs. Murlidhar Valecha (Dead) through Lrs.] on the count that the learned Senior Advocate who had appeared on behalf of the appellants is not the counsel engaged by them. It has been further contended that correct factual position has not been explained by the counsel that presently grandson- Abhishek is doing business in the name of Vinay Auto Parts in the very same complex and photographs of the same have also been annexed with this recalling application. This fact has not been placed on record by the appellant, therefore, it amounts to play fraud with the Court. He would further submit that the judgment which has been referred to by this Court in Harish Kumar (Since Dead) Vs. Pankaj Kumar Garg (Civil Appeal No. 253/2022) is not applicable to the present facts and circumstances of the case. He would further submit that since action of the appellant is not in accordance with law, therefore, any further conduct of the appellant cannot be sanctified the same, based on the well settled maxim of law i.e. sublato fundamento cadip opus and would pray for recalling of the order.

(2.) In support of his contention, he placed reliance upon the judgment rendered by Hon'ble the Supreme Court in Budhia Swain and others Vs. Gopinath Beb and others (1999) 4 SCC 396. He would further submit that the entire action by the appellant is fraud and the judgment and decree has been obtained fraudulently, therefore, there is sufficient ground for vacating the order passed by this Court. He has also referred to the judgment rendered by Hon'ble the Supreme Court in A.R. Antulay Vs. R.S. Nayak and another AIR 1988 SC 1531, United India Insurance Company Ltd. Vs. B. Rajendrda Singh and others JT 2000 (3) SC 151, Vice Chairman, Kendriya Vidyalaya Sangathan and another Vs. Girdhari Lal Yadav (2004) 6 SCC 325, H.S. Bedi Vs. National Highway Authority of India (2016) 155 DRJ 259, Ram Chandra Singh Vs. Savitri Devi and others (2003) 8 SCC 319, S.P. Chengal Varaya Naidu (Dead) by Lrs. Vs. Jagannath (Dead) by Lrs. and others AIR 1994 SC 853, Kishore Samrite Vs. State of Uttar Pradesh (2013) 2 SCC 398 and Scimed Overseas Inc. Vs/ BOC India Limited and others (2016) 3 SCC 70.

(3.) On the above factual matrix, he would pray for recalling of the judgment dtd. 4/5/2022 passed by this Court in FA No. 176 of 2008 as two candid misfeasance were committed by the appellant.