- (1.) THE special appeal has arisen from a judgment and order of the learned Single Judge dated 27 March 2015. The dispute in the present case relates to the property of a trust by the name of Shri Ganga Maharani Dharamshala Kunj Trust, Raj Ghat, Bulandshahr. The property is situated at Qasba Chandousi, District Moradabad. An application was moved before the District Judge, Moradabad by Bhagwan Swaroop, claiming to be one of the trustees of the trust under Section 7 of the Charitable and Religious Trusts Act, 1920 for permission to transfer the land forming the subject -matter of the application in favour of the first appellant. The application was registered as Misc. Case No. 12 of 1992. The first Additional District Judge, Moradabad allowed the application on 2 October 1996. Thereupon two sale -deeds were executed in respect of the property on 30 November 1996, including a sale -deed in favour of the appellants. The first respondent filed an application in 2003 before the Additional District Judge, Moradabad under Section 151 of the Code of Civil Procedure, 1908 for recalling the permission which was granted on 2 October 1996. Together with the application for recalling the permission, the first respondent filed an application for condonation of delay under Section 5 of the Limitation Act, 1963 in the presentation of the application dated 20 January 2003 against the order dated 2 October 1996. The application for condonation of delay was rejected by the Additional District Judge, Moradabad on 18 September 2008. The first respondent thereafter filed a writ petition in 2008, seeking to challenge the order of the Additional District Judge dated 18 September 2008 and the order dated 2 October 1996 granting permission for the sale of the property.
(2.) THE learned Single Judge held that the delay in filing the application for recall ought to have been condoned having due regard to the judgment of the Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, : (2013) 12 SCC 649. The attention of the learned Single Judge was drawn to the fact that the first respondent had filed a suit before the Civil Judge (Senior Division), Moradabad (Original Suit No. 52 of 2003) for the cancellation of the sale -deed dated 30 November 1996. The suit was dismissed on 19 April 2010 against which, a petition, Civil Misc. Writ Petition No. 42336 of 2010 is stated to have been filed and which is pending. The learned Single Judge held that proceedings by way of a civil suit for the cancellation of a sale -deed were different from the permission granted by the Civil Court and, if the order granting permission has been obtained by a fraudulent and sham newspaper publication, the right of the first respondent to maintain the writ petition could not be defeated for setting aside the order dated 2 October 1996. On this ground, the delay in filing the application for recall should, in the view of the learned Single Judge, have been condoned. Having held this, the learned Single Judge has enquired into the merits of the order dated 2 October 1996 and has concluded that the publication in the newspaper was vague since it did not disclose, for what purpose an application had been filed nor did it indicate the nature of the property sought to be sold. The basic challenge to the order of the learned Single Judge is on the ground that what was in issue before the learned Single Judge was the order of the Additional District Judge, Moradabad, rejecting the delay condonation application. If the learned Single Judge, upon considering the facts and circumstances of the case, was of the view that the delay should be condoned, then at the highest, the proceedings could have been remitted back to the Additional District Judge for a fresh consideration. Moreover, the locus and bona fides of the first respondent are seriously sought to be questioned by contending that the first respondent is a neighbour who had unsuccessfully filed a suit for cancellation of the sale -deed which was dismissed in 2010.
(3.) AT this stage, we are not inclined to widen the ambit of the controversy before the Court. The first respondent moved the Additional District Judge in 2003 for recall of the permission which was granted on 2 October 1996 for sale of the property of a public trust. The application for condonation of delay was rejected by the learned trial Judge. Against that order, a writ petition was filed. The learned Single Judge was of the view that the delay should be condoned and that the technicalities of the case ought not to come in the way prima facie since there are allegations of fraud.;