Uttarakhand High Court
Yukti Constructions Pvt. Ltd vs State Of Uttarakhand And Others on 26 August, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 282 of 2020
Yukti Constructions Pvt. Ltd. ......Appellant
Versus
State of Uttarakhand and others ....Respondents
Present:
Mr. Deepak Dhingra and Mr. Siddharth Sah, Advocate for
the appellant.
Mr. Sunil Khera, Deputy Advocate General for the State.
Mr. Sandeep Kothari, Advocate for the respondent no.4.
JUDGMENT
Coram: Hon'ble Ravindra Maithani, J
Hon'ble Alok Mahra, J.
Hon'ble Ravindra Maithani, J. (Oral)
Instant appeal is preferred against the order dated
02.11.2020, passed in Writ Petition (M/S) No. 93 of 2014, Yukti
Constructions Pvt. Ltd. Vs. State of Uttarakhand and others. By the
impugned judgment, the order dated 28.02.2020, passed in the writ
petition has been recalled and an application under Order 26 Rule 9
of the Code of Civil Procedure, 1908 ("CPC") bearing CLMA 19659 of
2018, has been dismissed.
2. Heard learned counsel for the parties and perused the
record.
3. In order to appreciate the controversy the chronology of
events, briefly stated, is as follows:-
(i) On 28.03.2016, a Misc. Application No. 4636 of
2015 was filed by the appellant, who is petitioner
for appointment of Advocate Commissioner, which
was allowed and one Mr. Bharose Lal was
appointed as Advocate Commissioner.
(ii) On 06.12.2018, the report submitted by Mr.
Bharose Lal, Advocate Commissioner was rejected
with the consent of the parties.
(iii) On 28.02.2020, another Misc. Application CLMA
19659 of 2018 was moved by the appellant under
Order 26 Rule 9 CPC for issuance of commission. It
was allowed and two advocates were appointed as
Commissioners.
(iv) On 02.11.2020, while taking note of an order dated
10.03.2015, passed in Special Appeal No. 571 of
2014 and considering other factors, the order dated
28.02.2020 was recalled, which is impugned
herein.
4. Learned counsel for the appellant submits that earlier by
the order dated 28.03.2016, Mr. Bharose Lal was appointed as
Advocate Commissioner. He had conducted survey and submitted his
report, which is still in a sealed cover. But, on 06.12.2018, the report
has been rejected. The Court then noted that on behalf of the
appellant it was wrongly projected that Mr. Bharose Lal was a retired
judge of the High Court. It is submitted that, in fact, there was no
reason for making any false projection with regard to any person, to
be appointed as Advocate Commissioner, by the appellant.
5. Learned counsel has raised the following points in his
submissions:-
(i) Another application for commission was moved by
the appellant which was registered as CLMA No.
19659 of 2018. It was allowed by the order dated
28.02.2020 of the Court. But then, the court took
note of order dated 10.03.2015 passed in the
Special Appeal No. 571 of 2014, Yukti Construction
Pvt. Ltd. Vs. State of Uttarakhand and others and
noted that this order dated 10.03.2015 was never
brought to the notice of the court and this fact was
suppressed.
(ii) It is submitted that, in fact, earlier, an interim relief
application filed by the appellant was rejected in
the writ petition and that order was challenged in
the Special Appeal No. 571 of 2014. By the time the
special appeal came up for hearing, the writ
petition was also ripe for hearing, therefore, Special
Appeal No. 571 of 2014 was decided on 10.03.2015
by the following order:-
"This appeal is filed against an interim order
passed in the writ petition.
2. We have heard the learned counsel
appearing on behalf of the appellant. We have also
heard the learned counsel for the State of
Uttarakhand/respondents. We are informed that the
writ petition itself is coming up for hearing in short time.
We are not persuaded to interfere with the interim order
as we are of the view that the appellant can place all its
contentions before the learned Single Judge when the
matter is taken up for final hearing. Without prejudice
to its rights to raise all contentions before the learned
Single Judge at the time of final hearing of the writ
petition, the appeal is disposed of. We request the
learned Single Judge to give an expeditious hearing of
the matter."
6. Learned counsel for the appellant submits that the
appellant had no reason to suppress any order. They had no need to
suppress any order. They did not commit any fraud. They did not
conceal any fact. They did not suppress any fact. It is submitted that,
in fact, the order dated 02.11.2020 deserves to be set aside and the
appellant should be given liberty either to move fresh application for
survey or they may be permitted to seek recall of the order dated
06.12.2018, by which the report submitted by Mr. Bharose Lal, has
been rejected.
7. Learned State counsel submits that the report submitted
by Mr. Bharose Lal was rejected based on the consent of the parties.
8. The fact that the Special Appeal No. 571 of 2014, Yukti
Construction Pvt. Ltd. Vs. State of Uttarakhand and others was
decided on 10.03.2015 is a matter of record. Merely on the basis that
this order was not brought to the notice of the Court, when the order
dated 28.02.2020 was passed, the order may not recalled. The parties
were aware of it. The Court record was before the Court. On
28.02.2020, the Court has dealt with an application filed by the
appellant under Order 26 Rule 9 CPC. In the impugned judgment,
multiple aspersions have been cast on the appellant.
9. We are of the considered view that the grounds on which
the order dated 28.02.2020 has been recalled by the impugned
order are not good grounds. Therefore, the impugned order, deserves
to be set aside.
10. The appeal is allowed.
11. The impugned order is set aside to the extent it recalled
order dated 28.02.2020 and dismissed CLMA 19659 of 2018.
12. Learned counsel for the appellant submits that the
appellant would like to seek recall of the order dated 06.12.2018 by
which the report submitted by Mr. Bharose Lal, Advocate
Commissioner was rejected and the appellant would still seek for
injunction in the writ.
13. While setting aside the impugned judgment, the
application filed by the appellant under Order 26 Rule 9 CPC i.e.
CLMA 19659 of 2018 is revived. The writ court is requested to proceed
further from the stage of deciding the application CLMA No. 19659 of
2018, after hearing both the parties.
14. If the appellant seeks recall of any order or still seeks for
injunction, he is free to take such recourse, as is permissible under
the law.
15. This Court under the facts and circumstances of the
case, makes it clear that any observation made against any party in
the impugned order shall have no bearing.
(Alok Mahra J.) (Ravindra Maithani, J.)
26.08.2025 26.08.2025
Jitendra
