JAIDAYAL DALMIYA Vs. SHEO MOHAN DALMIYA AND OTHERS

JUDGEMENT

(1.) THIS revision is directed against an order dated 1.2.1990 passed by the District Judge, Jalaun at Orai dismissing the restoration application of the applicant in Misc. Case No. 19 of 1989 arising out of original Misc. Case No. 50 of 1983. Brief facts are that in the year 1943 one Bhagirath Mal father of the applicant and grandfather of the Opposite Party Nos. 1 & 2 established a Private Charitable Trust known as Motilal Bhagirath Mal Dalmiya Dharamshala Trust. The Trust was running a Dharamshala at Varanasi from the income of the extensive immovable properties of the said Trust which were situate at Kanpur, Varanasi and Kalpi. The original Trustees mentioned in the Trust Deed were Bhagirath Mal, his son Gajanand, Lala Daan Mal & Lala Banarsi Lal. Bhagirath Mal died in the year 1965 leaving behind him two sons namely Gajanand & Jai Dayal Dalmiya (the applicant). Gajanand succeeded Bhagirath Mal as the Head Trustee but died in the year 1969. According to the applicant after the death of Lala Banarsi Lal in the year 1956, he was appointed as Trustee in place of the deceased Trustee by the surviving Trustees. After the death of Gajanand in the year 1969, the applicant being the surviving son of Bhagirath Mal and also one of the Trustees became the Head Trustee. It appears that the eldest son of Gajanand namely Sheo Mohan Dalmiya filed a petition purporting to be under Section 34 of the Trust Act read with Section 151 C.P.C. being Misc. case No. 50 of 1983 in the court of District Judge, Jalaun at Orai seeking permission to sell the properties belonging to the Trust on the ground that the income from the properties in question was meagre and it was in the interest of the Trust to dispose of the said properties. In the said proceedings the name of the applicant Jai Dayal was not shown as one of the trustees but the name of three other persons were shown as Trustees. Notice was directed to be issued to the said three Trustees who filed the replies giving permission for selling the properties of the Trust. The District Judge, Jalaun by the order dated 2.5.1983 allowed the petition and gave permission to the petitioner Sheo Mohan Dalmiya to sell the properties of the Trust mentioned in the petition. For reasons not very clear the properties of the Trust could not be sold. After about six years miscellaneous application purporting to be under Order 9 R.13 C.P.C. read with Section 151 C.P.C. was filed on behalf of the applicant Jai Dayal Dalmiya for recalling the order dated 2.5.1983 on the ground that the permission to sell the properties of the Trust have been obtained by playing fraud upon the court inasmuch as the applicant was the Head Trustee of the Trust and was not impleaded as a party in the said proceedings. The order has been obtained behind the back of the said applicant Trustee. This application was supported by an affidavit filed by the applicant Jai Dayal Dalmiya and was registered as Misc. Application No. 19 of 1989. No Counter affidavit was filed to this application by Sheo Mohan Dalmiya. However, an objection was filed by one of the Trustees namely Monohar Lal who was arrayed as one of the opposite parties in Misc. Case No. 50 of 1983 before the District Judge. In the said objection it was stated that the application for recalling the order dated 2.5.1983 was time barred and despite knowledge the applicant had not sought for recalling of the said order within time. The second objection was that the applicant Jai Dayal was not a party in the Misc. Case No. 50 of 1983 and, therefore, the application under Order 9 R.13 C.P.C. for recalling the order dated 2.5.1983 was not maintainable. The applicant could for that purpose file a separate suit. On that basis it was prayed that the application for recalling the order dated 10.3.1989 be rejected.

(2.) THE court below after hearing the parties upheld the objection filed by the opposite parties and held that the applicant Jai Dayal Dalmiya was the real uncle of Sheo Mohan Dalmiya (Opposite Party No. 1) and it could not be believed that he was not aware of the order dated 2.5.1983 passed about six years back and came to know about the same only by rumors on 27.2.1989. Besides even after knowledge the application was filed after eleven days which delay has also not been explained. Secondly, it was held that if the order was obtained by practising fraud upon the court the proper procedure for the applicant was to seek a declaration regarding his rights by filing a suit and not by making an application under Order 9 R.13 C.P.C. as the applicant was not a party to the Misc. Case No. 50 of 1983. Mainly on these grounds the court below vide order dated 1.2.1990 rejected the application filed by the applicant.

(3.) THE main submission of the learned counsel for the applicant is that the court below has manifestly erred in the exercise of its jurisdiction in holding that as the applicant was the uncle of the opposite parties No. 1 & 2, therefore, he will be presumed to have knowledge of the order granting permission. It was contended that the finding is not based upon any evidence but on conjectures and surmises. Secondly, it was contended that the opposite party had obtained the order dated 2.5.1983 by playing fraud upon the court in as much as the applicant who was the main Trustee was not impleaded as party and persons who had nothing to do with the Trust were shown to be Trustees made parties and on whose consent the impugned order dated 2.5.1983 was passed. The properties grossly undervalued belonging to a Charitable Trust which was being disposed of by some persons who have no connections with the Trust. It was, thus, contended that the application for recalling of the said order was fully maintainable and in the said facts the applicant could not be relegated to file a suit for declaration of his rights. Learned counsel has further contended that admittedly a similar application seeking permission to dispose of the properties of the Trust was filed in the court of District Judge, Kanpur which was numbered as Misc. Case No. 153/70 of 1971. The petition was signed by the applicant Jai Dayal, the opposite parties No. 1 & 2 Sheo Mohan and Brij Mohan. On the said applications the additional District Judge, Kanpur vide the order dated 16.10.1973 had granted permission to the applicant to sell the properties. The property could not be sold and instead of moving a fresh application before the District Judge, Kanpur the opposite party Sheo Mohan had surreptitiously without impleading the applicant as a party filed a similar application after ten years in the court of District Judge, Jalaun at Orai whereas, none of the parties are residents of Orai or Jalaun.