JUDGMENT S.K. Singh, J.
1. Heard Sri H.N. Shukla, learned Advocate who appeared in support of this writ petition and learned Standing Counsel.
2. This writ petition has been filed with a prayer to quash the order dated. 17.2.2005 (Annexure-31 to the writ petition) passed by the respondent No. 1 /Deputy Director of Consolidation, Allahabad. There is further prayer that respondent No. 1 be directed not to proceed with the application (Annexure-27 to the writ petition) and proceedings on that application be dropped.
3. Before I proceed to deal with the matter this has to come on the record that learned Advocate argued the matter for more than an hour inspite of indication that matter in issue is not such for which argument may stretch for such a long span. This was only with the purpose that we are already overburdened with large number of cases arising out of final order passed by the courts below which are pending since years and years and therefore, learned advocates are also to take care and they are to be vigilant to note that where to stop. Normally the court do not stop a counsel from arguing the matter in his own way as it is the liberty of the learned advocate to proceed according to his own way of placing the issue but take a case that writ petition is filed against a interlocutory order i.e. deciding some application or disposal of an issue at an intermediary stage in a particular manner and the proceedings before the court below are not final then certainly the court is also to see that by giving liberty of argument for hours and hours, the precious time which is primarily meant for the litigants is not consumed for no justification. Now time has come to speed up the things with a view of speedy disposal of the cases which is the need of the day for which the court expects co-operation from every corner and specially the advocates who assist the court in disposal of the cases. Now in the changing time if we do not join hands and improve justice delivery system litigants for whom we are here, may not excuse us. Old system of lengthy arguments on any kind of issue, now cannot fit in for the simple reason that people want result. We should not forget that number of cases, now a day stood multiplied thousand times. Now everybody has become vigilant about his rights and some times the courts have also started interfering in small and pity matters and thus people have started approaching the Law Courts even if there may not be any lawful justification. There is another reason to approach the courts. We all know about our system in which everybody is living. In what manner and to what extend people are able to get justice, but for intervention of the Courts, is not secret to any body In the aforesaid backdrop if we do not think to occupy courts time really on genuine matters and in the matters in which final rights of the parties are at stake then it will be too harsh on everybody. Thus it is again to be emphasized that in petty matters, and in the cases arising out of interlocutory orders it is for the learned Advocates to have some restraint to stretch the argument to a limit and not to go on arguing for hours and hours just like the matter which arises of final judgment. Thus now respective load will have to be shared by the learned advocates also with the court. Before parting with this issue, I may say that this court may not be misunderstood that observation in this respect has any reflection on the liberty of a learned advocate who is to argue the case before the court but this is high time to think over the matter in the public interest that while arguing a case, he has to stop when and where ?
4. The comment on the role of learned Advocates as made above finds strong approval from the observation as made by the Apex Court as far back as in 1986 in case of Life Insurance Corporation of India v. Escorts Ltd. and Ors. reported in AIR 1986 SC, 1370.. The kind of observation as was made by the Apex Court in 1986 gains more importance to the present days and it is now the right time that it is to be followed in its true sense as about 18 years has further passed when observation from Apex Court come and now the litigation stood multiplied beyond comprehension. The caution by way of suggestion as given by the Apex Court is to be quoted here for the benefit of everybody concerned with the issue-
"In the case before us, as if to befit the might of the financial giants involved, innumerable documents were filed in the High Court, a truly, mountainous record was built up running to several thousand pages and more have been added in this Court. Indeed, and there was no way out, we also had the advantage of listening to learned and long drawn-out intelligent and often ingenious arguments, advanced and dutifully heard by us. In the name of justice, we paid due homage to the causes of the high and mighty by devoting precious time to them, reduced, as we were, at times to the position of helpless spectator. Such is the nature of our judicial process that we do this with the knowledge that more worthy causes of lesser men who have been long waiting in the queue have been blocked thereby and the queue has consequently lengthened. Perhaps the time is ripe for imposing a time limit on the length of submission and page limit on the length of judgments. The time is probably ripe for insistence on brief written submissions backed by short and time-bound oral submissions. The time is certainly ripe for brief and modest arguments and concise and chaste, judgments. In this very case we heard arguments for 28 days and our judgment runs to 181 pages and both could have been much shortened. We hope that we are not hoping in vain that the vicious circle will soon break and that this will be the last of such mammoth cases. We are doing our best to disentangle the system from a situation into which it has been forced over the years by the existing procedures. There is now a public realisation of the growing weight of the judicial burden. The co-operation of the bar too is forthcoming though in slow measure. Drastic solutions are necessary. We will find them and we do hope to achieve results sooner than expected. So much for sanctimonious sermonizing and now back to our case."
5. In view of the aforesaid command of the Apex Court to which everybody is to submit, now we are to amend ourself accordingly.
6. To begin with the analysis part of the case in hand at the very outset it is to' be stated that against what order and for what relief this petition has been filed? Writ petition challenges the order dated 17.2.2005 (Annexure-31 to the writ petition) passed by the Deputy Director of Consolidation. By the aforesaid order Deputy Director of Consolidation has issued notice to the opposite party on the restoration application filed by Amar Bahadur Singh and others and till the next date operation of the earlier order dated 25.11.2002 complained in the restoration proceedings was stayed and the parties were asked to maintain status quo on the spot. By another prayer the proceedings on restoration application has been prayed to be quashed. It is thus clear that writ petition has not been filed against any final order but it has been filed only against the order of issue notice and grant of stay which was for a limited period as 28.2.2005 was the date fixed.
7. Challenge to the restoration proceedings and order of the Deputy Director of Consolidation of issue notice, fixing a date and grant of status quo order, is on the following grounds-
1) There was delay in filing restoration application and therefore without an opportunity to the petitioners and without condoning the delay order should not have been passed by the Deputy Director of Consolidation.
2) It is the pre-requisite condition for the court to consider the question of delay before passing order on merits.
3) A writ petition has been filed by one Ram Laxman i.e. writ petition No. 1736 of 2003 against the order dated 25.11.2002 in which the present petitioners are the respondents and they have already put in their appearance and filing of the counter affidavit has been directed and therefore on the principle of doctrine of merger the restoration proceedings cannot be said to be maintainable and thus the order of the Deputy Director of Consolidation of issue notice is to be quashed.
8. In support of the first and second submission that first delay is to be condoned and then any order can be passed on the merits, reliance has been placed on the decision given in case of Narsingh Rao and Anr. v. Deputy Director of Consolidation, Deoria, reported in 1982 RD, 195, Prayas Construction Company v. Smt. Shakuntala Devi, reported in 1996 RD (Suppl), 490, P.K. Ramachandran v. State of Kerala and Anr. reported in 1998 RD, 18 and in case of Shyam Sunder Sharma v. Pannalal Jaiswal and Ors. reported in AIR 2005, SC, 226.
9. On a perusal of the aforesaid cases it is clear that in all the cases the order of the courts below which was under challenge was a final order and in none of the cases only order of issue notice on recall application was under challenge. Otherwise also principle that without condoning the delay the merit is not to be touched can be only approved when there is final judgment by the concerned court and that judgment lacks the decision on the delay condonation matter. Petitioners appear to have pre-judged the lacuna in the final judgment which may be to the effect that without dealing with the condonation part the merit has been decided. Here is the case where the application for recall of an order has been just entertained and notice has been directed to be issued and thus as and when in presence of the" parties matter will be heard necessarily the court is to deal the question of limitation also alongwith merits and even the question of maintainability of the proceedings if it is objected by other side, but at this stage taking of objection about maintainability of the proceedings and about condonation of delay amounts to prejudging the issue. If the ' submission of the learned counsel for the petitioner that without passing order on condonation of delay and that too obviously alter giving notice and appearance of other side no interim order can be passed is accepted then it may have a very drastic and dangerous result. Take a case that "A" obtains an order against "B" which is claimed by "B" to be an ex-parte order without any opportunity to him and the effect of the order may be of demolition and dispossession from the property, or any other effect of irreparable nature, "B" files application to recall that order with delay condonation application and stay application as and when he comes to know about that ex-parte order then if it is held that court has no power to issue notice and till appearance of the opposite party and till delay is condoned no interim protection can be given then in the meantime the order complained may take its effect and sometimes the injury suffered by the complaining party may be irreparable. If the contention of the learned counsel for the petitioner is accepted that court has no power to, grant interim stay even for a limited period unless the delay is condoned and winning party is heard then that will give a room for such litigant who can manage the process of service etc. in their own way and then to ripe the fruits of the order and to leave the genuine and bonafide litigant and the claimant to the property in issue to fight for a decade. It is thus ruled that as and when restoration application is filed against any order by aggrieved person the court is to be satisfied with the prima facie case and on preliminary satisfaction on the averment as contained in the affidavit and other material the court has got every inherent power to protect the interest of the applicant and then to take final decision after hearing other side. Needless to say that while hearing and deciding restoration application the court is to deal the question of limitation and any other objection which is raised by the opposing party. Power to grant interim stay is always inherent in the court and it is always meant to do justice as there may be cases that order has been obtained by fraud, by misleading the court, without any proper service on the party. The Apex Court in series of cases has clearly opined that if the court is satisfied that the order is the result of fraud and has been obtained by misleading the court and party is proved to have no notice then the court has inherent power to recall the same. In respect to exercise of power on the proof of an order having been obtained by misleading the court or by playing fraud the Apex Court in case of Indian Rank v. Satyam Fibres (India) Pvt. Ltd., reported in 1996 ACJ, 1279 has made following observation in paragraphs 21,22 and 23-
21. In Smith v. Eash Elloe Rural District Counsel, 1956 AC, 736: (1956) 1 All ER 855: (1956) WLR 888 the House of Lords held that the effect of fraud would normally be to vitiate any act or order. In another case Lazarus Estates Ltd. v. Beasley (1956) 1 ALL ER 341: (1956) WLR 502 (QB AT P. 712), Denning LJ said "No judgment of a court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. "
22. The judiciary in India also possesses inherent power, specially under Section 151 CPC to recall its judgment or order. If it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for selling aside the decree obtained by fraud Inherent powers are powers which are resident in all courts., specially or superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviors. This power is necessary for the orderly administration of the court's business.
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside the order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order,"
10. In another decision given by the Apex Court in case of' Budhia Swain and Ors. v. Gopinath Deb and Ors. reported in 1999 ACJ, 1462, the Apex Court has made following observation in paragraphs 6, 7 and 8-6.
11. What is power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank v. Satyam Fibres (India) (P) Ltd. (1996) 5 SCC 550=1996 All.C.J. 4279) vide para 23, this court has held that the courts have inherent power to recall and set aside an order.
(i) obtained by fraud practiced upon the court.
(ii) when the court is misled by a party or
(iii) when the court' itself commits a mistake which prejudices a party.
12. In A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531 para 130 9 vide para 130) this Court has noticed motions to set aside judgments being permitted where-
(i) a judgment was rendered in ignorance of the fact that a necessary party has not been served at ail and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented.
(ii) A judgment was obtained by fraud.
(iii) A party had no notice and a decree was made against him and such party approaches the court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.
7. In Corpus Juris Secundum (Vol.XIX) under the chapter "Judgment- Opening and Vacating" (Paras 265 to 284) at pp. 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actins. Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating it atleast if the invalidity is apparent on the fact of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or stopped. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.
8. In our opinion a tribunal or a court may recall an order-earlier made by it if-
(i) the proceedings culminating info an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent.
(ii) There exists fraud or collusion in obtaining the judgment.
(iii) There has been a mistake of the court prejudicing a party, or
(iv) A judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
13. In view of the aforesaid it is clear that submission of the learned counsel for the petitioner to challenge the order of the Deputy Director of Consolidation of issue notice and grant of interim stay i.e. status quo order proceeds on some misconception and the objection in this respect appears to have been raised at premature stage and thus the first and second submission of the learned counsel as noted above, are hereby rejected.
14. So far the submission of the learned counsel about the application of doctrine of merger and thus Deputy Director of Consolidation to have no jurisdiction to proceed in the matter also appears to be based on some misconception. Submission of the learned counsel in respect to the applicability of doctrine of merger is based on the decision given by the Apex Court in case of Kunhayammed and Ors. v. State of Kerala and Anr., reported in AIR 2000 SC. 2587. So for the judgment of the Apex Court given in case of Kunhayammed referred above, it is clear that it was the matter of entertaining review petition before the High Court after dismissal of the Special Leave Petition by the Apex Court. It has been ruled by the Apex Court that if without grant of leave Special Leave Petition is dismissed then doctrine of merger will not apply and if leave was granted and it is thereafter the appeal has been dismissed then it has been said that doctrine of merger will apply and the High Court will have no jurisdiction to entertain and hear the review petition. So far the case in hand is concerned it has absolutely no connection with the law as propounded by the Apex Court. Here is the case where the writ petition has been filed not by the applicants who have filed restoration application rather it has been filed by another party and otherwise also writ petition is still pending for decision and it has not yet been dismissed and thus on any ground the principle of doctrine of merger cannot be pressed, as argued by the learned counsel. Here is the simple case where restoration application has been filed by the applicants on the ground that they have not been made party and there is no service on them and no opportunity of hearing has been given and allegation of fraud etc are there and therefore all these questions certainly can be better attended by the concerned lower court itself. If the concerned court after being satisfied with the merits in the restoration application allows the same and the order is recalled on the permissible ground then writ petition filed by any of the party may automatically become infructuous. It is not to be repeated again and again that on the ground of the order being ex-parte the remedy of the party is to file restoration application and therefore, even by that very party only on account of filing of writ; petition remedy of restoration cannot be said to be barred. The Full Bench of our own court in case of Shivraji v. Deputy Director of Consolidation and Ors. reported in 1997 ACJ, 949 has clearly permitted entertainment and decision on the restoration application against the order which is claimed to be ex-parte. The consolidation courts have been cautioned not to exercise powers of review as U.P. Consolidation of Holdings Act do not provide power of review on any authority. In another decision given by this court in case of Abdul Gani in writ petition No. 45412 of 2000 decided on 2.1.2000 it has been clearly held that during pendency of the writ petition the decision on the restoration application is not barred. The Apex Court has also taken the view that even if Special Leave Petition is pending the party can file review petition before the High Court. Reference can be given to the decision of the Apex Court as rendered in case of Kapoor Chand and Ors. v. Ganesh Dutt and Ors., reported in AIR 1993 SC, 1145. The observation as made by the Apex Court in para 15 will be useful to be quoted here-
"15. This petition has been filed for grant of special leave to appeal against the order dated December 14,1990 whereby the review petition filed by the petitioner for review of the judgment dated July 23,1987, has been dismissed by a learned judge of the High Court on the ground that since special leave petition has been filed before this Court against the main judgment, the review petition was not maintainable because the order of the High Court would merge automatically in the order of this Court. This special leave petition has become infructuous since the said judgment of the High Court dated July 23,1987 has been set aside by us. We, however, wish to indicate that High Court was not right in dismissing the review petition on the ground that in view of special leave petition having been filed against the judgment should to be reviewed, the review petition was no longer maintainable because the judgment of the High Court would merge in the order of this Court. The question regarding merger of the judgment under review in the order of this Court would have arisen only after this Court had considered the special leave petition on merits and had passed an order on the matters dealt with in the judgment of the High Court dated July 23,1987. Till such an order was passed by this Court, it was competent for the High Court to review its judgment dated July, 23,1987 and the review petition could not be dismissed as not maintainable merely because special leave petition had been filed against the said judgment before the court and was pending. The special leave petition is dismissed with the aforesaid observations."
15. In view of aforesaid discussion, the argument on the principle of doctrine of merger is also rejected. Thus to conclude, it is held that when restoration application will be decided on its merits then all the question of limitation, maintainability and other aspects on merits is to be examined but it cannot be held that on filing restoration application court has no power to issue notice and grant of interim protection unless other side appears and he is heard. If on restoration application, notice is issued and interim stay is granted it is for the complaining party to immediately rush to the concerned court as soon as he comes to know about entertainment of the application and grant of stay and to move an application bringing all the facts which he wants to convey with the request that stay may be vacated and application be dismissed as there is no merits and prima facie case in applicants favour. It is at that stage the concerned court will have to apply its mind in detail in the light of the objection as raised by the opposing party and it is thereafter he is to pass appropriate reasoned order upon which if the facts so permits and they are so apparent then rejection of prayer of opposite party may be a mailer of challenge before the higher forum but in no case merely against the order of issue notice and grant of interim stay the writ petition can be said to be maintainable straightway. It can happen in rarest of rare case that higher court may permit such situation. If against the order of issue notice this court permits the entertainment of writ petition and argument on the merits of the case as the learned counsel tried to advance then that will lead to the examination of various disputed questions of fact converting this court as the lower court who is to record required findings for deciding restoration application on its merits either way. Thus the effort of the petitioners through their learned counsel cannot be approved. Petitioners instead of approaching that very court and apprising him various details upon which application may merit dismissal, have unnecessarily rushed to this court by filing a bulky petition and in the same manner lengthy arguments of premature stage. All arguments as advanced are on the merits of the claim of the parties which cannot be said to be permissible at this stage and thus writ petition deserves dismissal.
16. In the last the submission of the learned counsel for the petitioner for summoning record, as stated in para 9 and 10 of the supplementary affidavit is also to be taken note. Suffice it to say that as matter is pending before the Deputy Director of Consolidation who is empowered to take stock of entire record and then to discuss, deal and record the finding on the question of fact also in view of the amendment in Section 48 of the U.P.C.H. Act, this court is not satisfied that by exercising the job of revisional court entire record is to be summoned here and restoration application is to be decided on the merits straightway by this court. Thus submission in this respect a so merits rejection.
17. In view of analysis as made above this court is of considered view that petitioners are not entitled for any relief in this writ petition. Accordingly writ petition fails and is dismissed.