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:- 2 (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. 3 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 4 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 5 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