Man Mohan and Others vs Muni Prasad and Others

Anil Kumar, J.—Heard Ms. Saima Khan, learned Counsel for the petitioner, Sri R.K. Singh on behalf of the respondent.

Facts of the present case are that for a cancellation of sale deed dated 17.12.1970, a suit was filed By Sri K.P. Choube, Advocate on behalf of the petitioners in the court of Civil Judge (Jr. Div.) Gonda registered as Regular Suit No. 3022of 2001 Manmohan and Ors. v. Muni Prasad and Ors. Further in the said suit Muni Prasad and Dashrath Lal s/o Sri Tribhuwan Dutt r/o Village-Kapurpur Pargana-Pahadapur Tehsil and District-Gonda were impleaded as respondents.

It is further submitted by Sri R.K. Singh who has put appearance on behalf of O.P. No. 1/Muni Prasad that some impostor had filed power on behalf of the respondents in the said suit through Sri Tarun Chand Tiwari, Wakil R/o Balpur Bazar, Post Balpur, Gonda. Thereafter a written statement was also filed in the matter in question (a copy of which is on record as Annexure-4). However, thereafter the said respondents had not appeared in the matter in question and the same was decided ex-parte by judgment and decree dated 17.05.2003.

Sri R.K. Singh, Advocate further submits that when it came to the knowledge of the respondent No. 1 who was the defendant in the said suit that the trial court has passed an ex-parte judgment against him0, then he moved an application for recall of the said order under Order 9 Rule 13 read with Section 5 CPC. He further submits that the thereafter two applications were moved for expert opinion as well as verification of the thumb impression which has been affixed on the power as well as written statement filed in the trial court. In this regard he rely on the averment as made in paragraph No. 13 of the counter affidavit filed on behalf of the respondent No. 1, the said application was registered as paper No. 32 Ga2 and 43Ga2 and allowed by order dated 16.02.2010 passed by Additional Civil Judge (Jr. Div.) Gonda. The said order was challenged by the petitioner before the O.P. No. 2 dismissed vide order dated 03.05.2010. Aggrieved by the order dated 03.05.2010 (Annexure-1) and 16.02.2010 (Annexure-2) passed by O.P. Nos. 2 and 3 respectively, the present writ petiton has been filed.

On 13.07.2010, this Court has passed an order the relevant portion of the is as under:

From the perusal of the writ petition and the annexures annexed therewith, it comes out that serious allegations of playing fraud upon the court below have been indicated as such let notice be issued to Sri K.P. Chaubey, Advocate, H. No. 45 Pant Nagar, Gonda and Sri Tarun Chand Tiwri, Balpur Bazar, Post Balpur, Gonda, who are appearing on behalf of the parties before the Civil Judge, Gonda.

It is open for the opposite party No. 1 and aforesaid advocates to file their reply, if they so desire.

Notice be issued through Chief Judicial Magistrate, Gonda.

In pursuance to the said order Sri K.P. Chaube, Advocate who filed the suit on behalf of the plaintiffs as well as Sri Tarun Chand Tiwari, Wakil who has filed alleged written statement on behalf of the Muni Prasad and Dasharath Lal defendant in the suit are present.

List/put up on 09.11.2010 and Sri Tarun Chand Tiwari Wakil who is present today shall again appear as well as file his version by way of an affidavit in the matter in question on the said date.

Office is further directed to send the relevant record on the next date.

Sri K.P. Chaube who is present today in pursuance to the order passed by this Court shall not appear on the next date.