1 S.B.CIVIL WRIT PETITION NO. 4004/2009 (Laduram Vs. Mangilal ) Date of order :: 24th April 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Dhanpat Choudhary for the petitioner Having heard the learned counsel for the petitioner and having perused the material placed on record, this Court is unable to find any reason to consider interference in the writ jurisdiction in the order dated 11.11.2008 as passed by the District Judge, Balotra refusing to recall the order dated 03.03.2004. It appears that the petitioner filed a suit for partition and perpetual injunction against his brother (C.O.No.15/2001) wherein an application was moved under Section 8 of Arbitration Act with reference to the fact that there had been an agreement between the parties for settlement of the dispute through arbitration; and hence, the matter was prayed to be referred to the arbitrator. This application was allowed by the order dated 03.03.2004 and the matter was ordered to be referred to the arbitrator; who was to be selected out of panels to be supplied by the parties. It appears that an application was moved by the plaintiff-petitioner on 11.01.2008 seeking recalling of the said order dated 03.03.2004 on the ground that the alleged agreement was inadmissible in evidence being an unregistered one; and on its basis, no proceedings could have been adopted. The learned District Judge has noticed that the defendant has supplied the names of persons proposed to be appointed as arbitrator but the plaintiff earlier kept on taking 2 adjournments for the purpose of challenging the order dated 03.03.2004 but did not put any such challenge in appeal or revision. The learned District Judge has further observed that the allegations as made by the plaintiff-petitioner by way of application dated 11.01.2008 could not be countenanced nor there was any justification to recall the order dated 03.03.2004 after about four years. The observations as made by the learned District Judge remain unexceptionable and do not disclose any error or any illegality. The order dated 03.03.2004 having attained finality, there was no occasion that the learned District Judge would have re-opened any question related therewith on an application moved after four years. The learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Rajendra Singh and others: AIR 2000 SC 1165 to submit that the Court has the power to recall the order. The said decision was rendered in the context of fact situation that the concerned order was obtained by practicing fraud and the Hon’ble Supreme Court observed that every Court or Tribunal has the power to recall an order obtained by fraud. The present one is not a case of any allegation of fraud. The order dated 03.03.2004 is very much a considered order passed in the presence of, and after hearing, the parties. There is no ground for interference. The writ petition fails and is, therefore, rejected. (DINESH MAHESHWARI),J. MK