MOMIN VALIBHAI KAMALBHAI Vs. GUAJARAT STATE WAKF BOARD

JUDGEMENT

(1.) SHRI Momin Valibhai Kamalbhai along with 8 others are before this Court being aggrieved by judgment and order dated 23.7.2013 passed by the learned Single Judge in Special Civil Application No.14540 of 2004, whereby the learned Single Judge is pleased to partly allow the petition by saying, thus;

(2.) LEARNED advocate Mr.R.D.Dave appearing for respondent No.2 vehemently opposed the Appeal and submitted that the order which is contended to have come into being on order dated 24.9.2004 having been quashed, was obtained by fraud and therefore, the appeal is not required to be entertained. The matter will be considered by Gujarat State Wakf Board as per the direction issued by the learned Single Judge. In this regard, learned advocate relied upon a decision of the Hon'ble the Apex Court in the matter of A.V.Papayya Sastry and Ors. v. Govt. of A.P. and Others., 2007 4 SCC 221. Learned advocate for respondent No.2 heavily relied upon Head Note -B and also Head Note -C of the said judgment, which reads as under: "B. Fraud Meaning Vitiates all judicial acts whether in rem or in personam Judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by court of first instance or by the final court It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings This is an exception to Art. 141 of the Constitution and doctrine of merger Constitution of India, Art. 141.

(3.) AT the request of learned advocate Mr.R.D.Dave, it is clarified that allowing of this appeal to the extent aforesaid does not mean that the Court has gone into the aspect of the alleged fraud. It would be open for respondent No.2 to take recourse to the remedy available to him under the law.