Gujarat High Court
Kamlaben Punjabhai Solanki Daughter Of ... vs Tensile Steel Ltd. & on 28 February, 2013
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
KAMLABEN PUNJABHAI SOLANKI DAUGHTER OF DECEASED PUNJABHAI....Applicant(s)V/STENSILE STEEL LTD. C/MCA/3343/2011 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION NO. 3343 of 2011 In SPECIAL CIVIL APPLICATION NO. 3105 of 1998 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ KAMLABEN PUNJABHAI SOLANKI DAUGHTER OF DECEASED PUNJABHAI....Applicant(s) Versus TENSILE STEEL LTD. &
9....Opponent(s) ================================================================ Appearance:
MR PRABHAV A MEHTA, ADVOCATE for the Applicant(s) No. 1 MR ROHAN YAGNIK AGP for the Opponent(s) No. 5 & 10.
MR JM PATEL WITH MR AB MUNSHI, ADVOCATE for the Opponent(s) No. 1 MR AC GANDHI, ADVOCATE for the Opponent(s) No. 7 MR PP BANAJI, ADVOCATE for the Opponent(s) No. 6 ================================================================ CORAM:
HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 28/02/2013 CAV JUDGEMNT
1. By way of this Misc. Civil Application, the applicant Kamlaben Punjabhai Solanki seeks following reliefs :
(A) Your Lordships may be pleased to recall the judgment and order dated 8.5.1998 passed by this Hon ble Court in Special Civl Application No.3105 of 1998 in the interest of justice;
(B) Yours Lordships may be pleased to dispense with the and condone delay in preferring the present application for recall in the facts and circumstances of the present case;
(C) Pending hearing and final disposal of the present application, Your Lordships may be pleased to restrain the opponents herein from granting any permission for sal of land bearing Survey No.523/1, 524/1 and 524/2 at village Manjalpur, District Vadodara;
(D) An ex parte ad interim relief in terms prayer (C) above may kindly be granted;
2. Facts of the present applicant are enumerated as hereunder:
2.1 The applicant s father, namely, deceased Punjabhai Adarbhai being protected tenant under the provisions of Bombay Tenant and Agricultural Land Act and since Tiller s day, he became the deemed purchaser of the land bearing Survey Nos.523/1, 524/1, 524/2 situated at village Manjalpur, Ta. & District : Baroda. The possession was taken over from the father of the applicant along with standing crop by the State Government at the time of acquisition of the land for opponent No.1 in the year 1962. The Notification under Section 6 was quashed vide order 21.10.1966 in Special Civil Application No.999 of 1962 by this Court, and therefore, State Government cancelled the procedure. As per the case of the applicant, the father of the applicant was paid the amount of compensation in respect of the acquired land, which was directed to refund the same and he deposited the same in the Government. The Special Land Acquisition Officer ordered for taking the possession of the acquired land from the opponent No.1 for the purpose of returning to the father of the applicant. Though, the opponent No.1 was ordered to remain present to hand over the possession of land to the father of the applicant, the opponent did not remain present. The Special Land Acquisition Officer after preparing panchnama and in the presence of panchas took the physical possession of the land. But the applicant did not get the actual possession of the said land and therefore, the applicant along with other legal heirs of the deceased Punjabhai, filed Regular Civil Suit No.10 of 1975, before the Civil Court (S.D.), Vadodara. The said suit was decreed in favour of the applicant. The Mamlatdar & ALT, Vadodara passed an order dated 27.3.1996 in Ganot Case No.2483 of 1999 declaring the deceased Punjabhai as tenant and directed to pay an amount of Rs.4063.80 in view of Section 32(g) of the Act and to initiate proceedings under Section 84(c) of the Act. Against the said order dated 27.3.1996, the opponent Nos.1 and 2 preferred Appeal before the Deputy Collector, Vadodara being Tenancy Appeal No.45 of 1996, the same was rejected. The opponent No.1 preferred Revision Application No.TEN.B.A 166 of 1997 before the Gujarat Revenue Tribunal and the Tribunal was pleased to reject the said Revision.
Therefore, the opponent No.1 challenged orders dated 9.5.1997 passed by the Tribunal, order dated 28.1.1997 passed by the Deputy Collector and order dated 27.3.1996 passed by the Mamlatdar & ALT before this Court by way of preferring Special Civil Application No.4558 of 1997. The said petition was dismissed for want of prosecution. Therefore, the order dated 9.5.1997 passed by the Revenue Authority is confirmed and in operation. As per the case of the applicant, all these factual aspects with regard to land have been deliberately concealed by the opponent Nos.1 and 2 throughout before this Court, Revenue Authorities as well as BIFR.
2.2 It is further case of the applicant that the deceased Punjabhai executed a Will on 30.7.1982, whereby the deceased has conferred the said land bearing Survey Nos.523/1, 524/1 and 524/2 and 331 paikee, 1/3rd part of four Vighas land on the present applicant. The applicant applied for probate by way of filing Civil Misc. Appeal No.29 of 1997 before Civil Court (S.D.), Vadodara. During the said probate proceedings, the other legal heirs of the deceased Punjabhai had never raised any objection and therefore, Civil Court was pleased to grant probate certificate dated 17.4.1997 with regard to the said land under Section 272 of the Indian Succession Act.
2.3 The opponent Nos.1 and 2 preferred Special Civil Application No.3105 of 1998 for direction to the opponent Nos.3 to 9 and opponents to take such steps or action as may be necessary to ensure the compliance of the scheme sanctioned by the BIFR under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985, so as to enable the petitioner to implement the scheme of rehabilitation and to direct the State of Gujarat to grant permission under the ULC Act. As per the case of the applicant, the opponent Nos.1 and 2 wrongly claimed ownership of the land in question belonging to the present applicant and they have deliberately concealed the said aspect before this Court. In the said petition i.e. main petition being Special Civil Application No.3105 of 1998, the applicant was not joined as party and therefore, she was not aware of fraud played by the opponent Nos.1 and 2. This Court vide judgment and order dated 8.5.1998 directed that subject to the right of the State Government to challenge the order dated 23.4.1998 of the Appellate Authority in Appeal No.24 of 1998, the State Government shall comply with the scheme sanctioned by the BIFR on 12.12.1996 as interpreted and explained by the Appellate Authority in order dated 23.4.1998 passed in Appeal No.24 of 1998 within two months from today unless in the mean the aforesaid order of the AAIFR in Appeal No.24 of 1998 is stayed by any appropriate Court of law. It is also the case of the applicant that the opponent Nos.1 and 2 with dishonest intention claimed ownership of the land in question belonging to the applicant without knowledge and consent of the applicant. As per the order of this Court passed on 8.5.1998 in main petition, opponent Nos.1 and 2 have preferred application before opponent No.5 for granting the permission to sell of the various lands described in the application dated 15.10.2011, more particularly Survey Nos.523/1, 524/1 and 524/2 belonging to the applicant. The applicant came to know in the month of November, about filing of the said application by the opponent Nos.1 and 2 before the opponent No.5 and inquiry was conducted by the opponent No.10, the applicant lodged objection on 21.12.2011 before the Mamlatdar and Collector, Vadodara and also before opponent No.5 on 9.12.2011. The opponent No.2 filed affidavit and indemnity bond in the said proceedings. It is also case of the applicant that despite the said fact, with a view of abuse the process of law, the opponent Nos.1 and 2 in collusion with other legal heirs of deceased Punjabhai, father of the applicant preferred Special Civil Application No.16018 of 2011 before this Court, through other heirs of the said deceased, wherein present applicant is deliberately not joined as party and prayer was sought for a direction against the opponent Nos.1 and 2 to hand over the possession of the land to the petitioners, who are not legal owners or in the alternative, prayed for compensation. Subsequently, in collusion with respondent Nos. 1 and 2, other legal heirs in the said proceedings of petition (Special Civil Application No.16018 of 2011) have confined their petition qua alternative prayer for compensation and/or appropriate monetary reward and have not pressed for other prayers and that was observed by this Court in the order dated 19.10.2011. When the said aspect came to the knowledge of the present applicant, the applicant preferred Civil Application in the said petition, for permission to join her as party in Special Civil Application No.16018 of 2011. In the said application, the applicant narrated in details the fraud played by the opponent Nos.1 and 2 in collusion with other legal heirs of deceased Punjabhai. It is also the case of the applicant that initially, for the purpose of release of said land in acquisition was challenged by way of Special Civil Application No.2993 of 2001 and 2994 of 2001, wherein the Division Bench of this Court vide order dated 27.8.2011 observed that the land of the aforesaid Survey No. were not required by opponent Nos.1 and 2 and the lands are open lands. The said petitions were dismissed on merits vide order dated 27.8.2001. It is to be noted that even vide order dated 19.2.2004, the Hon ble Apex Court dismissed the challenge of release the land in question from acquisition in the year 1962. The applicant has filed Regular Civil Suit No.1153 of 2011 along with application for interim injunction before the Civil Court praying against the other legal heirs of deceased Punjabhai not deal with the said land in any manner.
3. In view of the above facts and circumstances, the applicant prefers this application stating therein that in the case of fraud, despite delay, this Court would exercise its jurisdiction. It is also the say of the applicant that concealment of relevant facts from this Court amounts to committing fraud. The application is filed by the applicant to recall the order dated 8.5.1998 passed in main petition.
4. Learned advocate Mr. P.A. Mehta appearing on behalf of the applicant stated that the opponents have taken undue advantage by not bringing the true facts on record before the Authorities below upto this Court. The applicant came to know about the proceeding at a later stage and therefore, she raised objection before the Authorities below. He further submitted that the applicant is old aged widow lady, illiterate and she is daughter of deceased Punjabhai and the land of question is only her livelihood. He further submitted that in view of the provisions of Bombay Tenancy and Agricultural Land Act, once father of the applicant is declared as tenant and deemed purchaser, no right or liability can be claimed by any third party. It is true that the order dated 8.5.1998 was passed in the main petition and thereafter, after about 12 years, the applicant files this application for recalling of the said order, therefore, delay of long period as stated above, is caused, but considering the genuine circumstances as narrated in the application, the right of the applicant is required to be protected. He further submitted that the applicant Nos.1 and 2 are bent upon to abuse of process by concealing material facts from this Court as well as from Revenue Authorities and on the basis of order dated 8.5.1998, the opponents are abusing the process of law by way of requesting the Authorities to permit them to sell the land in question belonging to the applicant.
5. Learned advocate Mr. Mehta relied upon the decision rendered by the Hon ble Supreme Court in the case of A.V. Papayya Sastry & Ors. Vs. Government of A.P. & Ors. reported in AIR 2007 Supreme Court 1546 and submitted that the High Court has power to recall its earlier order. In support of his submission, he relied upon para 40 of the said decision, which is as under :
Even if he is right in submitting that after dismissal of SLPs, the respondent herein could not have approached the High Court for recalling its earlier order passed in April, 2000 and the High Court could not have entertained such applications, nor the recalling could have been done, in the facts and circumstances of the case and in the light of the finding by the High Court that fraud was committed by the land-owners in collusion with the officers of the Port Trust Authorities and Government, in our considered view, no fault can be found against the approach adopted by the High Court and the decision taken. The High Court, in our opinion, rightly recalled the order, dated April 27, 2000 and remanded the case to the authorities to decide the same afresh in accordance with law.
6. Learned advocate Mr. Mehta stated that in the aforesaid decision, the High Court has passed order in April, 2000 and by the order dated 7.3.2007, the Hon ble Supreme Court issued direction by considering the aspect of fraud, to recall the order by observing that All orders passed by the Courts/authorities below merge in the judgment of Supreme Court and after such judgment, it is not open to any party to the judgment to approach any Court or authority to review, recall or reconsider the order. The above principle, however, is subject to except of fraud. He, therefore, submitted that herein this case, the order was obtained by the opponents by practicing fraud and therefore, it can be said as vitiated.
7. Learned advocate for the applicant further relied on the decision in the case of United India Insurance Co. Ltd. Vs. Sanjay Singh and others reported in AIR 2000 Supreme Court 1165, more particularly para 4, which reads as under :
For a High Court in India to say that it has no power even to consider the contention that the awards secured are the byproducts of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and peoples faith in the efficacy of the High Courts would corrode. We would have appreciated if the Tribunal or at least the High Court had considered the plea and found them unsustainable on merits,if they are meritless. But when the Courts preempted the Insurance Company by slamming the doors against them, this Court has to step in and salvage the situation.
He also relied on paras 16 to 18 of the aforesaid decision.
8. Learned advocate Mr. Mehta submitted that in the aforesaid case, the Hon ble Supreme Court has considered the aspect of fraud and when the order was obtained by practising fraud, every Court has power to recall such order. Here in the present case, the opponent Nos.1 and 2 have kept in dark the applicant and have not approached the Authorities below as well as this Court with clean hands and wrongly obtained order from this Court. Therefore, order in question is required to be recalled by considering the conduct on the part of the opponents and applicant may be permitted to establish her case.
9. The reliance was also placed by the learned advocate Mr. Mehta on the decision in the case of (1) Vyalikaval House Building Coop. Society by its Secretary Vs. V. Chandrappa And Others reported in (2007) 9 Supreme Court Cases 304, (2) Hamza Haji Vs. State of Kerala and Another reported in (2006) 7 Supreme Court Cases 416 (3) (2003) 8 Supreme Court Cases 311 in the case of Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and others reported in (2003) 8 Supreme Court Cases 311 and submitted that in the above referred cases, by considering the aspect of fraud, delay occurred was condoned.
10. In view of the above, learned advocate Mr. Mehta, submitted that the observations made by the Hon ble Supreme Court in the aforesaid decisions especially with regard to the issue of fraud, the Hon ble Supreme Court directed the courts below to recall its earlier order.
Here in this case, the opponents obtained order by committing fraud but due to that, the applicant has to suffer so many hardships. Therefore, he submitted that delay caused is required to be condoned, as the applicant had no knowledge about passing of such order in the year 1998 by this Court and said order dated 8.6.1998 passed in main petition is required to be recalled by allowing this application.
11. Learned advocate Mr. J.M. Patel with Mr. A.B. Munshi appearing on behalf of the opponent Nos.1 and 2 submitted that there is delay of 12 years in approaching this Court and same cannot be considered as reasonable and they also submitted that 12 years delay cannot be considered by adopting lenient view. They have also submitted that from the observation made in Special Civil Application No.3105 of 19998, it cannot be said that the opponents have obtained such order by committing fraud. As per their submission, at this stage, the meaning of fraud is required to be considered and for that they relied on the decision in the case of Commissioner of Central Excise Belapur, Mumbai Vs. RDC Concrete (India) Pvt. Ltd. reported in (2011) 12 Supreme Court Cases 166, wherein the Hon ble Supreme Court has observed as under :
This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In T.S. Balaram Vs., Volkart Bros. this Court has already decided that power to rectify a mistake should exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long-drawn process of reasoning. Similarly this Court has decided in ITO Vs. Ashok Textiles Ltd. that while rectifying a mistake and erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected.
12. The learned advocates for the opponents further relied on the decision of this Court rendered on 9.11.2012 in Civil Application No.10754 of 2012 in First Appeal (Stamp Number) No.3189 of 2012 to Civil Application No.10784 of 2012 in First Appeal (Stamp Number) No.3219 of 2012 and submitted that in that case, there is delay of 1008 days in preferring Appeals, but this Court has not considered those applications for delay and dismissed the same. The relevant para 3 of the said decision is as under :
The above chronology of events and the averments scrupulously avoided making of any statement explaining the delay caused at every stage. Therefore, in absence of any explanation, much less satisfactory explanation for the delay caused, is not a good ground for condoning the inordinate delay of more than 1008 days.
13. The learned advocates for the opponents further relied on the decision in the case of S. Bagirathi Ammal Vs. Palani Roman Catholic Mission reported in AIR 2008 Supreme Court 719, so far as issue of review of the order is concerned. More particularly para 5, which reads as under :
Since we have already narrated the case of both the parties in the paragraphs supra, there is no need to traverse the same once again. Before considering the rival claims made by both the parties, it is useful to refer the provisions under Order XLVII Rule 1 C.P.C. relating to Review which read as under:
"1.
Application for review of judgment:- (1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.(2)
A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation
- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.)"
A reading of the above provision makes it clear that Review is permissible (a) from the discovery of new and important matter or evidence which, after the exercise of due diligence could not be produced by the party at the time when the decree was passed; (b) on account of some mistake; (c) where error is apparent on the face of the record or is a palpable wrong; (d) any other sufficient reason. If any of the conditions satisfy, the party may apply for a review of the judgment or order of the Court which passed the decree or order. The provision also makes it clear that an application for Review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled re-hearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing the order. With this background, let us analyze the impugned judgment of the High Court and find out whether it satisfy any of the tests formulated above.
13. Learned advocates for the opponents placed reliance on the case of Paschim Gujarat Vij Company Ltd. Through Deputy Engineer, Jamkhambhalia Vs. Khemchand Nathabhai Gadhavi reported in 2011 (3) GLR 1867 and submitted that said application for delay is dismissed. They read the head note of the said decision, which is under :
Civil Procedure Code, 1908 (5 of 1908) Order 41, Rule 3A- Gujarat High Court Rules, 1993 Chapter V, Rule 67(i) Limitation Act, 1963 (36 of 1963) Sec. 3(1) Appeal filed beyond limitation period, held, if not accompanied by application for condonation of delay supported by affidavit is time-barred, hence, same liable to be dismissed Defect cannot be curred by subsequent filing of application and affidavit Rule 3A is mandatory, non-compliance of which is fatal Both applications for condonation and appeal dismissed.
14. In view of the aforesaid submissions, the learned advocates for the opponents submitted that delay of 12 years may not be condoned. They further submitted that the submission of learned advocate of the applicant that the order was obtained by opponents by committing fraud, is not believable and trustworthy, as there is not a single iota of evidence to establish that the opponents have committed any fraud. The ingredient of fraud is also not established or highlighted by the applicant in this application and even it is not submitted by the applicant that under which circumstances and under which manner, the fraud was committed by the opponents. Therefore, they prayed to dismiss the application for recalling of the order, which is passed before 12 years i.e. on 8.5.1998 by this Court in the main petition.
15. Learned AGP Mr. Rohan Yagnik for the respondent Nos.5 and 10 submitted that if there is a delay of short period, then it may be considered, but here, there is a delay of approximately 12 years and thereafter, the applicant come with a case to recall the order, is not just and proper. He relied on the case of this Court in Nazmabegam Noormohammed Rangrej @ Nazmabanu Fahimbhai Vs. State of Gujarat & Ors. reported in 2013(1) GLH (U.J.), more particularly para 4 which reads as under:
At this stage, we may refer to the decision of the Apex Court in the case of Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation and Another, reported in (2010) 5 SCC, 459, wherein the Apex Court observed, at paragraphs 14, 15, and 16, thus:-
14.
We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
15. The expression sufficient cause employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate Collector (L.A.) v. Katiji, N. Balakrishnan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil
16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasising that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay G. Ramegowda v. Land Acquisition Officer, State of Bihar v. Ratan Lal Sahu, State of Nagaland v. Lipok AO and State (NCT of Delhi) v. Ahmed Jaan.
16. Learned AGP further stated that considering the above decision as well as cases as referred by the learned advocates for the opponents, the application is not required to be entertained.
17. Perused the application and documents annexed with the same. In the main petition Special Civil Application No. 3105 of 1998, this Court passed order dated 8.5.1998 and the present application is preferred by the applicant with a prayer to recall the order dated 8.5.1998 on 26.12.2011. Therefore, there is great delay of approximately 12 to 13 years in preferring present applicant. Therefore, it is required to be considered that for what reason, the applicant has filed this application after such a long period. The applicant had no knowledge about the proceedings is not believable. It is alleged by the applicant that the opponents have obtained order from this Court by committing fraud, but what kind of fraud is committed or in which manner, fraud is committed by the applicant, is not explained anywhere by the applicant. Here first of all the meaning of fraud is required to be considered. Normally, the meaning of fraud is to cheat the person with a view to gain something. The meaning of fraud is required to be elaborated here under :
Fraud means an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of court of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not true. The expression fraud involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. As per Concise Oxford Dictionary, Word Fraud means a criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. Word Fraud means deliberate deception, treachery or cheating which is intended to gain certain advantage. Fraud means and includes any of the following acts committed by a party to a contract or with his connivance, or by his agent with intent to deceived another party thereto or his agent, or to induce him to enter into the contract.
the suggestion as a fact, of that which is not true, by one does not believe it to be true;
the active concealment of a fact by having knowledge or belief of the fact;
a promise mad without any intention of performing it;
any other act fitted to deceive;
any such act or omission as the law specially declares to be fraudulent.
Even the meaning of fraud contains the words like injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind reputation or such others. It is a non-economic or non-pecuniary loss.
18. In various decisions the meaning of fraud is defined by the Hon ble Supreme Court. Therefore, looking to the averments made in the application, it is nowhere transpired as to what and in which manner the fraud is committed by the opponents. The deceased Punjabhai, father of the applicant was directed to refuse the compensation and deposited the same in the Government Treasury. The Special Land Acquisition Officer passed order for taking the possession of acquired land from the opponent No.1 and as the applicant did not get back the possession, one suit being Regular Civil Suit No.10 of 1975 was filed and that suit was decreed in favour of the applicant. Thereafter, Mamlatdar & ALT, Vadodara had passed order on
27.3.1996 in Ganot Case, declaring the deceased Punjabhai, father of the applicant as tenant and also directed to pay an amount of Rs.4063/- in view of Section 32(g) of the Act and also directed to initiate proceedings under Section 84(c) of the Act. Against said order dated 27.3.1996, the opponent Nos.1 and 2 preferred an Appeal before the Deputy Collector, Vadodara, and that Appeal was dismissed on 8.1.1997. Against the said order, the opponents preferred Revision Application No.TEN.B.A. 166 of 1997 before the Gujarat Revenue Tribunal and same was dismissed on 9.5.1997. Those two orders dated 27.3.1996 and 9.5.1997 were challenged before this Court by way petition being Special Civil Application No.4558 of 1997, which was dismissed for want of prosecution on 20.11.2002. In the year 1997, the applicant got probate of the said land from the Civil Court, Vadodara. Thereafter, opponent Nos.1 and 2 preferred the main petition being Special Civil Application No.3105 of 1998, which was disposed of on 8.5.1998 by this Court, and the same is challenged by way of present application. Therefore, looking to all these chronology of events, prima facie, it is not established that the opponents committed fraud with the applicant and if it is believed that the opponents have committed fraud, then the applicant has to show by way cogent evidence that the opponents committed such fraud by way concealment of the facts. Even there is no explanation about the fraud on the part of the opponents.
19. The learned advocate for the applicant relied upon the cases as referred above, but I have scrutinized all the cases, wherein it is found that when the fraud is established by considering the facts, circumstances and documents, the Court has to recall its order. Therefore, this Court is of the view that here in this case, the fraud or its ingredients are not established by the applicant and in absence of the same, how this Court can recall the order as passed on 8.5.1998, before 12 to 13 years. In the cited cases, it is condition that there must be fraud and it must be established by the contesting party. Here in the present case, simply the averments are made by the applicant against the opponent without any proper explanation but looking to the averments as stated in the application, there is not a single ingredient of fraud is established. The provision also makes it clear that an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the facts of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
20. So far as the delay is concerned, the application is preferred after a long span of 12 years from the order dated 8.5.1998 passed in the main petition. This Court is not satisfied with the explanation as tendered by the applicant in the application or is not agreed with the submissions made by the learned advocate for the applicant. In absence of any explanation, much less satisfactory explanation for the delay caused, is not a good ground for condoning the inordinate delay of more than 12 years. Now, the limitation goes to the root of the matter and the application is barred by limitation, a Court has no jurisdiction or power to entertain such petition or application on merits and Court cannot take lenient view in condoning delay of such a long period of more than 12 years.
21. In view of the above, this Court is of the view that the application is having no substance and same is required to be dismissed. Hence, the application is dismissed. No costs.
(Z.K.SAIYED,J.) YNVYAS Page 20 of 20