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Judgment
D.K. Seth, J.—By an order dated 20101981, which is AnnexureCA1 to the counteraffidavit, renewal of registration of the society obtained by the petitioner in the name of Shree Chaharwati Shiksha Sangh, Akola, Agra, was cancelled. The said order was affirmed on an appeal preferred by the petitioner, by an order dated 1121982, which is AnnexureCA2 to the counter affidavit. These orders were challenged by the petitioner, by means of Writ petition No. 328 of 1983. The said writ petition was dismissed by an order dated 30th January 1996, being is Annexure5 to the writ petition, which runs as follows:
"It is 1983 petition. The petition is taken up in the revised list. None appears to press this petition.
Having perused the petition, we are of the opinion that no ground is made out for interference in writ jurisdiction. This petition has no merit and it is dismissed. Stay order, if any, stands vacated."
Subsequently, an application for recalling the said order was filed. By an order dated 1941996, which is Annexure6 to the writ petition. The said application was disposed of by the following order:
"The petition was dismissed in default on 3011996. Thus the petitioners have moved an application for recalling the order of dismissal and restoring the petition to its original number.
However, learned counsel submits that no doubt the petition was dismissed in default but the fact remains that the petition had already been rendered in fructuous.
Thus we direct that besides dismissing the petition in default the petition has also become in fructuous.
With this direction this application for restoration is disposed of."
In the meantime by an order dated 2681987 the renewal of registration of the society was granted to the petitioner in the name of the said Shree Chaharwati Shiksha Sangh, Akola, Agra. The said order is Annexure3 to the writ petition. By an order dated 1941996, which is Annexure7 to the writ petition, the Deputy Registrar, observed that the order contained in Annexure3 to the writ petition was passed in pursuance of an interim order dated 641987 passed in the said Writ Petition No. 328 of 1983 subject to further orders passed in the said writ petition. It was further observed that since the writ petition stands dismissed the order dated 20101981, as affirmed by an order dated 1121982, stands revived and the Order dated 2681987 cannot be treated to be a final, decision, Since the same was subject to the decision in the writ petition.
It is this order which has been assailed by Sri K.N. Tripathi, learned Counsel for the petitioner on the ground that the order contained in Annexure3 to the petition having stood affirmed by reason of the order dated 1941996 (Annexure6 to the writ petition) the order contained in Annexure7 to the writ petition, is wholly uncalled for and superfluous. According to him the writ petition stood dismissed as infructuous because of the order contained in Annexure3 to the writ petition. Therefore, the said order had received seal of this Court and cannot be ignored, as has been sought to be made by the order, as contained in Annexure7 to the writ petition. The second contention is that registration though originally used to continue for a long period but after subsequent amendments it has to be reviewed after the prescribed period. Therefore, the order contained in Annexure3 to the writ petition, being one such order cannot be said to be insignificant and thrown to oblivion. Thirdly, he contends that change of the name from ''Sangh'' to ''Samiti'' is not a change at all. It is the same Organisation and, therefore, the order impugned in the said writ petition No. 328 of 1983 cannot have any impact not be effective.
Sri V.M. Sahai, learned Counsel for the respondents, on the other hand opposes the said contention on the ground that the writ petition having stood dismissed not only for default but also on account of observation that no ground was made out for interference, the order contained in AnnexureCA 1 and 2 to the counteraffidavit, stands affirmed. The application for recalling the said order dated 3011996 as contained in Annexure5 to the writ petition, having not been allowed and the said order having not been recalled the recording of the order that the petition has become in fructuous on the submissions of the learned Counsel cannot be taken to be a decision on merit so as to lend support to the learned Counsel for the petitioner''s contention. According to him the order contained in Annexure3 to the Writ petition, itself made it clear that the said order was subject to the decision in the writ petition and that the said order was passed in view of the order passed in the writ petition. Therefore, the question relating to the contention of the respondents having been left open to be decided after the decision in the writ petition, very well made the order subject to the result of the writ petition. Therefore, the impact of the said order has been rightly perceived by the authority while passing the order contained in Annexure7 to the writ petition. The present writ petition, therefore, is liable to be dismissed.
The question raised by both the learned Counsel for the parties vehementally argued at the bar. Though the submission made on behalf of the petitioner painted a rosy picture in favour of the petitioner. But in reality the same cannot be accepted.
On the facts of this case has been observed earlier, the order contained in AnnexureCA1 and 2 was final unless set aside. This court while exercising jurisdiction cannot enter into the merit once the same stands affirmed in an earlier writ proceeding, though raised in the present case. The question is dependent on the interpretation of the order contained in Annexure6 to the writ petition. The learned counsel for the petitioner sought to interpret the same as observed above. The said order, in my view, however, cannot be treated to be an independent order. The said order is to be read with Reference to the order contained in Annexure5 to the writ petition. The order has to be reconciled with the earlier order. The application for recalling of the order dated 3011996 was not allowed. The order dated 3011996 has not been recalled. So long the order is not recalled and no observation is made with regard to specific order passed on 3011996 and the order having not been modified, there is no scope of the contention contending that the order dated 30 11996 stood modified by order dated 1941996. There cannot be any application of doctrine of eclipse by reason of special characteristic appearing from the order dated 1941996. It appears that the petition has also become infructuous, was an observation recorded on the basis of the submission made by the learned Counsel to the effect "that no doubt the petition was dismissed in default, but the fact remains that the petition and already been rendered infructuous." This submission also is not supported by order dated 3011996. The said order while records that "none appears to press this petition", but also records that "having perused the petition we are of the opinion that no ground is made out for interference in writ jurisdiction. The petition was no merit and it is dismissed."
Therefore, though no one appeared to press the petition it was not dismissed in default. On the other hand it was dismissed on the ground that it had not merit and did not call for interference. Therefore, the observation made only on the basis of wrong submission of the learned Counsel in the order dated 1941996 is obiterdicta or pious observation based on the submission made by the learned counsel without any application of mind to the question since the same was never raised nor there was any scope of raising the same while considering the application for recalling the order dated 30111996. Then again from order dated 1941996 it does not appear that the learned Counsel for the petitioner had pressed the application for recalling. Therefore, there was no occasion for the Court to apply their mind on the merit of the case. The court was never called upon to decide the said question on an application for recalling since the main writ petition was not before the Court available for hearing unless and until the order dated 3011996 is recalled and which was never recalled. So long the order dated 3011996 is not recalled the same stares on the face of the petitioner. In the facts and circumstances of the case the order dated 1941996 cannot be treated to be a modification of the order dated 3011996. Neither it can be said to eclipse the order dated 3011996. Even if the observation "thus we direct that besides dismissing the writ petition in default the petition has also become infructuous" is added or read in the order dated 3011996, in that event the writ petition was dismissed on three counts; (i) that it was dismissed on merit since it did not call for interference, (ii) it was dismissed for default, since none appeared to press the writ petition and, (iii) that it had become infructuous.
Then again if it is dismissed as having become infructuous on the submission of learned Counsel, then it cannot be said that it was dismissed in default. Therefore, the order dated 1941996 cannot be taken to decide the fate of the order dated 3011996. The said two orders can not be interpreted to mean anything else other than what is recorded in the said order itself, dismissing the writ petition on merit after having found on perusal that no ground was made out for interference. Unless it is mentioned in the order dated 1941996 that the order dated 3011996 is recalled and that the same stands modified there is no scope for accepting the contention of learned Counsel for the petitioner.
Over and above, the Court had never applied its mind to the merit of the case which the Court could do only after recalling the order dated 3011996 which was never done.
If the writ petition is dismissed, the order as contained in AnnexureCA1 and CA2 stands affirmed and valid. As soon as the same stands affirmed and valid the order contained in Annexure3 to the writ petition having been passed in terms of the order dated 671987 falls through with the dismissal of the writ petition. Therefore, the order contained in Annexure7 to the writ petition cannot be assailed on the ground of passing of the order contained in Annexure3 to the writ petition. The order as contained in Annexure3 to the writ petition outlived its existence with the dismissal of the writ petition. Since the said order was passed following the interim order passed there inn specifically mentioned that the said order was passed in compliance of the order of this Court.
In that view of the matter the writ petition fails and is accordingly dismissed. There will, however, be no order as to costs.