Rajasthan High Court - Jodhpur
Soma & Ors vs State & Ors on 23 February, 2017
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
1
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Criminal Misc(Pet.) No. 1709 / 2007
1. Soma son of Shri Ranga
2. Raman son of Shri Goma
3. Rawji son of Shri Thanwara
4. Hameera son of Shri Babra
5. Dalji son of Shri Soma
6. Velji son of Shri soma
7. Deceased Bhura son of Shri Naniya through his minor son
7(1). Heera Lal through his guardian Smt. Homli w/o Roopa
8. Prithing son of Shri Manjura
9. Duda son of Shri Hameera
10. Mathura son of Shri Onkar
All by caste Adiwasis residents of Village Ambabi Tehsil
Dhariyawad, District Pratap Garh (Formerly) District Udaipur
---Petitioners
Versus
1. State of Rajasthan
2. Udai Pratap Singh
3. Ajay Pratap Singh
No. 2 and 3 sons of Shri Mahendra Pratap Singh b/c Rajput,
resident of Jawer at present residing at Dhariyawad District Pratap
Garh (Formerly District Udaipur)
4. Smt. Kamla Kumari wife of Shri Mahendra Pratap Singh b/c
Rajput, resident of Dhariyawad District Pratapgarh (Formerly
District Udaipur)
5. Hira son of Shri Roopa
6. Legal representatives Deceased Nama son of Shri Deva
(2 of 12)
[CRLMP-1709/2007]
6.1. Smt. Thanwari widow of Deceased Nama
6.2. Panchiya s/o Deceased Nama
6.3. Dhaniya s/o Deceased Nama
6.4 Ramli d/o Deceased Nama w/o Puriya(resident of village Nalwa
P.S. Dhariwad District Pratapgarh
6.5. Kesari d/o Deceased Nama w/o Paliya (resident of village
Mandwi P.S. Dhariwad District Pratapgarh)
6.6. Aalki d/o deceased Nama w/o Lakhma (resident of village
Mandla P.S. Dhariwad District Pratapgarh)
6.7. Kamlu d/o deceased Nama w/o choka (resident of village
Jolar P.S. Dhariwad District Pratapgarh)
6.8. Legal Representatives of Predeceased son of Nama:
6.8.i. Damli d/o Deceased Narayan w/o Bhabha (resident of
village Mandwi P.S. Dhariwad District Pratapgarh)
6.8.ii Kamli d/o deaceased Narayan w/o Lachiya (resident of
village Aad P.S. Parsola District Pratapgarh)
6.8.iii Kesari d/o deaceased Narayan w/o Lachiya (resident of
village Gyaspur P.S. Devgarh District Pratapgarh)
6.8.iv. Gauti d/o deaceased Narayan w/o Keshiya (resident of
village Kherweli P.S. Dhariwad District Pratapgarh)
(Another son of deceased nama, son of Shri Deva is already on
record as Respondent No.1)
7. Hariya son of Shri Dhula
8. Devji Son of shri Bhura @ bhera
9. Legal representative of deceased Narayan
9.1. Smt. Dhulki widow of Narayan
9.2. Aliya son of Narayan
9.3. Mst. Gauti d/o Narayan
(3 of 12)
[CRLMP-1709/2007]
9.4. Mst. Damli d/o Narayan
9.5. Mst. Kamli d/o Narayan
9.6. Mst Keshari d/o Narayan
All by caste Meena, resident of village Saath Pur, Police station
Dhariyawad District Pratap garh,
10. Deva son of Shri Nama @ Navya
11. Kalia son of Shri Rama
12. Meghla son of Shri Kalia
13. Dhaniya Son of Shri Devji
14. Rama son of Shri Roopa
15. Babariya @ Ragunath Singh son of Shri arjun Singh by caste
Hazuri- Deora Village Mund Koshiya Police station Dhariyawad
District Pratapgarh (Formerly District Udaipur)
16. Gautam son of Hakra
Non- petitioners No. 5 to 13 and 14 all by caste Meena resident of
village Saathpura Police station Dhariyawad District Pratapgarh
(Formerly District Udaipur)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr P.C.Sharma
For Respondent(s) : Mr V.S.Rajpurohit - PP
For Respondent Nos.2 to 4 : Mr Vineet Jain
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Order 23/02/2017 This criminal misc. petition under section 482 CrPC has been filed by the petitioners with the following prayer:
(4 of 12) [CRLMP-1709/2007] "It is, therefore, most respectfully prayed that this application may kindly be allowed and the order passed on 27.11.2000 in S.B.Cr. Misc. Petition No.739/1994 Udai Pratap Singh & ors. V/s State of Rajasthan & ors may kindly be recalled and the misc. petition be heard and decided on merits or any other order which may be considered just and proper in the circumstances of the case may kindly be passed. It is further prayed that appropriate action may kindly be taken against the private non-petitioners for their gross misdemeanors."
Along with this petition, an application under section 340 CrPC has also been filed with a prayer that appropriate action may kindly be taken against the private non-petitioners for gross misrepresentation before this Court.
Brief facts of the case are that non-petitioner Nos.2 to 15 filed a criminal misc. petition being S.B.Cr.Misc. Petition No.739/1994 before this Court while challenging the order dated 06.10.1994 passed by Sub-Divisional Magistrate, Vallabhnagar in Cr.Misc. Case No. 17/1994, whereby it had directed the Tehsildar to handover the property in question as per the Parcha Report prepared on 21.07.1992. The said Parcha Report was prepared by the Tehsildar in the proceedings under section 145 CrPC, wherein the Sub-Divisional Magistrate has ordered for attaching the agricultural land situated in village Ambabi Tehsil Lasadia- Dhariawad, District Udaipur. Later on the Sub-Divisional Magistrate has dropped the proceeding under section 145 CrPC and thereafter passed the order dated 06.10.1994.
In S.B.Cr. Misc. Petition No.739/1994, respondent Nos.2 to 15 had claimed that the order dated 06.10.1994 has (5 of 12) [CRLMP-1709/2007] illegally been passed without taking into consideration the fact that the petitioners are in continuous possession of the land in question ever since the proceedings under section 145 CrPC have been dropped. They also claimed that as per the orders passed by the High Court in first appeal preferred by father of the non-petitioner Nos.2 and 3 and husband of non-petitioner No.4, they are in possession of the land as being its title holders. Certain other grounds were also raised in S.B.Cr.Misc. Petition No.739/1994 to assail the order dated 06.10.1994 passed by the Sub-Divisional Magistrate.
This Court vide order dated 17.11.1994 while admitting S.B.Cr.Misc. Petition No.739/1994, directed the parties to maintain status quo as it existed on that day with respect to the land in dispute.
After service of notice, the petitioners put their appearance through their advocate and the said S.B.Cr.Misc. Petition No.739/1994 was allowed by a Co-ordinate Bench of this Court on 27.11.2000 by passing the following order:
"Heard learned counsel for the parties.
Learned counsel for the petitioners brings in the notice of the Court an order passed in S.B.Civil First Appeal No.72/1974 dated 28th November, 1983. In this order, respondent Soma had agreed to hand over possession of the land to Mahendra Pratap Singh.
In view of the fact that agreed order was passed in which respondent Soma had bound himself regarding possession and also in view of the fact that trial court has dropped the proceedings under Sec.145 Cr.P.C., there is no question of any dispute of peace being disturbed. In that view of the matter, the orders (6 of 12) [CRLMP-1709/2007] of the civil court will prevail and in that perspective orders of the trial court regarding delivery of possession of land to the respondents cannot be sustained.
Consequently, the misc. petition is allowed. Orders of the civil court shall prevail. Impugned orders are set aside."
Thereafter on 23.10.2007, this misc. petition has been filed by the petitioners essentially with a prayer for recalling the order dated 27.11.2000 passed by this Court in S.B.Cr.Misc. Petition No.739/1994 and to decide the said criminal petition on merits. Along with this criminal misc. petition, the petitioners have filed an application under section 340 CrPC with a prayer for taking appropriate action against the private non-petitioners for making false statements before this Court and for procuring order from this Court by playing fraud.
The main contention of the learned counsel for the petitioners is to the effect that as a matter of fact, private non- petitioner Nos. 2 to 15 have cited the judgment of this Court dated 28.11.1983 passed in S.B.Civil First Appeal No.72/1974 deliberately with the intention to persuade this Court to pass order in their favour though the respondent-Soma in the First Appeal No.72/1974 is not the person, who is the petitioner No.1 in this case and was non-petitioner No.2 in S.B.Cr.Misc. Petition No.739/1994.
It is also contended that no compromise has ever been arrived at between Mahendra Singh, father of non- petitioner Nos.2 and 3 and husband of non-petitioner No.4 and Soma petitioner No.1 in this case and non-petitioner No.2 in (7 of 12) [CRLMP-1709/2007] S.B.Cr.Misc.Petition No.739/1994 but wrong statement was made on behalf of the non-petitioners before the court that the petitioner No.1 Soma (non-petitioner No.2 in S.B.Cr.Misc. Petition No.739/1994) is the same person, who entered into compromise with Mahendra Singh.
It is argued that the petitioners are illiterate persons and as they were not aware about the order dated 27.11.2010 passed in S.B.Cr.Misc. Petition No.739/1994 immediately, however, as soon as they came to know about the said order, they tried to make contact with their counsel but as their counsel has died some time ago, they contcted the present counsel and thereafter filed this petition.
Learned counsel for the petitioners has argued that as the non-petitioners have made a false and misleading statement before this Court in S.B.Cr.Misc. Petition No.739/1994, this criminal misc. petition deserves to be allowed and the application filed on behalf of the petitioners under section 340 CrPC also deserves to be allowed and the non- petitioners are liable to be prosecuted for making false statement before this Court.
Learned counsel for the petitioners has prayed for recalling the order dated 27.11.2000 passed in S.B.Cr.Misc. Petition No.739/1994 and also prayed that the said criminal misc. petition be revived and heard on merits. He has also prayed that the application under section 340 CrPC be allowed and the non-petitioners be prosecuted for making false statement before this Court. In support of his contention, (8 of 12) [CRLMP-1709/2007] learned counsel for the petitioners has placed reliance on decision of Hon'ble Supreme Court rendered in A.V. Papayya Sastry & Ors. vs. Government of A.P. & Ors., reported in 2007 AIR SC 1546.
Opposing the petition filed on behalf of the petitioners, learned counsel appearing for non-petitioner Nos. 2 to 4 has argued that this criminal misc. petition filed on behalf of the petitioners for recalling the order dated 27.11.2000 passed in S.B.Cr.Misc. Petition No.739/1994 is essentially a petition seeking review of the order passed by this Court, however, this Court has no power to review the order dated 27.11.2000 passed in S.B.Cr.Misc. Petition No.739/1994.
It is also argued that it is wrong to say that any wrong statement on behalf of the non-petitioner Nos.2 to 4 was made before this Court in S.B.Cr.Misc. Petition No.739/1994 and the non-petitioners did not obtain any order from this Court by making any false statement. Learned counsel for the non- petitioners has further argued that the petitioners were duly represented by their counsel, who did not raise any objection at the time of decision of S.B.Cr.Misc. Petition No.739/1994 and, therefore, the allegation of the petitioners of misleading the court is without any basis. Learned counsel for the non- petitioner Nos.2 to 4 has further argued that as a matter of fact a compromise was arrived at between Mahendra Singh and one Soma and on the basis of which S.B.Civil First Appeal No.72/1974 was decided by this Court on 28.11.1983 and only that statement was made before the Court on 27.11.2000 and (9 of 12) [CRLMP-1709/2007] no such statement to the effect was made that Soma in that appeal is the same person, who is petitioner No.1 in this petition and non-petitioner No.2 in S.B.Cr.Misc. Petition No.739/1994. Learned counsel for the non-petitioners has, therefore, argued that there is no force in this petition and the same is liable to be dismissed.
Learned Public Prosecutor has also opposed the petition and submitted that this criminal misc. petition filed by the petitioner is essentially with the prayer for review of the order dated 27.11.2000 passed by this Court in S.B.Cr.Misc. Petition No.739/1994, however, this Court has no power to review its earlier order. It is also argued that the petition is highly belated and no satisfactory explanation for the said delay has been given, hence, this petition is liable to be dismissed.
Heard learned counsel for the rival parties and carefully scrutinized the record.
There is no doubt about the proposition of law laid down by the Hon'ble Supreme Court in A.V. Papayya Sastry & Ors. vs. Government of A.P. & Ors. (supra) that any order procured by the Court by playing fraud can be recalled at any point of time.
It is clear from the record that petitioner No.1 Soma son of Ranga (respondent No.2 in S.B.Cr.Misc. Petition No.739/1994) is not the same person, who was the respondent in S.B.Civil First Appeal No.72/1974 decided on 28.11.1983 and it is also clear from the record that Mahendra Singh father of non-petitioner Nos.2 and 3 and husband of non-petitioner No.4 (10 of 12) [CRLMP-1709/2007] has not entered into any compromise with the petitioner No.1 in any civil litigation and Soma Bhai, respondent in above mentioned first appeal was a different person. However, now the question before this Court is that whether the petitioners in S.B.Cr.Misc. Petition No.739/1994 have procured the order from this Court by making a false statement or not.
From perusal of the order dated 27.11.2000, it is clear that the said order was passed in the presence of the counsel for the petitioners of this petition, who were non- petitioners in S.B.Cr. Misc. Petition No.739/1994. It appears that the counsel for the non-petitioners did not raise any objection when this Court gave a finding to the effect that "the orders of the civil court will prevail and in that perspective orders of the trial court regarding delivery of possession of land to the respondents cannot be sustained." It is not clear from the order that while referring respondent-Soma in the order, the Court was referring to the petitioner Soma or Soma, who was respondent in S.B.Civil First Appeal No.72/1974. Whatever may be the situation before the Court at the time of passing of the order dated 27.11.2000, the fact remains that the said order was passed in the presence of counsel for the petitioners.
It is also noticed that in S.B.Cr.Misc. Petition No.739/1994, the petitioners, who are non-petitioner Nos.2 to 15 in this petition have disclosed about the factum of the decision of the First Appeal No.72/1974 decided on 08.11.1983. The relevant para i.e. para No.1 of S.B.Cr.Misc. Petition No.739/1994 is reproduced hereunder:
(11 of 12) [CRLMP-1709/2007] "1. That the father of the petitioners Shri Mahendra Pratap Singh owned a land in Mauza Amba Bi in Vallabhnagar area of District Udaipur.
Earlier on it appears that the father of petitioners No.1 and 2 and husband of petitioner No.3 (the other petitioners being their Sezari) entered into an agreement to sell a part of the land of Amba Bi to one Shri Soma Bhai and others. The sale did not materialise so Shri Soma Bhai filed a suit for specific performance of the contract which was decreed by the District Judge, Udaipur. An appeal was filed against the said decree which was decided through a compromise and the land in question was directed to be given to the possession of the petitioners on payment of certain amount to Shri Soma Bhai."
From the above, it is clear that non-petitioners No.2 to 15 have nowhere mentioned that Mahendra Pratap Singh has entered into the compromise with petitioner No.1 Soma (respondent No.2 in S.B.Criminal Misc. Petition No.739/1994).
From the above facts, it can be gathered that in S.B.Cr.Misc. Petition No.739/1994, the non-petitioners in this petition did not make any mis-statement before this Court then it is very difficult to hold that non-petitioners have procured the order dated 27.11.2000 passed in S.B.Cr.Misc. Petition No.739/1994 by playing fraud upon the court.
It is also to be noticed that this criminal misc. petition has been filed for recalling the order dated 27.11.2000 passed in S.B.Cr.Misc. Petition No.739/1994 after a delay of about seven years and till date more than 16 years have passed. As per the information supplied by the counsel for the respondent Nos. 2 to 4, the land in question has already been alienated by them to (12 of 12) [CRLMP-1709/2007] various persons and at present, who is in possession of land in question is not known to him.
In view of the above noted facts and circumstances of the case, I do not find any case for recalling of the order dated 27.11.2000 passed in S.B.Cr.Misc. Petition No.739/1994. Otherwise, also essentially by this petition, the petitioners are seeking review of the order dated 27.11.2000 but under the Code of Criminal Procedure, this Court has no power to review its earlier order.
Consequently, this petition fails and is hereby dismissed.
(VIJAY BISHNOI),J.
m.asif/PS