Allahabad High Court
Nankau And Others vs State Of U.P. Thru Secy. Revenue And Ors. on 30 May, 2023
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:38565 Reserved on 19.04.2023 Delivered on 30.05.2023 AFR Court No. - 18 Case :- WRIT - C No. - 581 of 2010 Petitioner :- Nankau And Others Respondent :- State Of U.P. Thru Secy. Revenue And Ors. Counsel for Petitioner :- Dr. L.P. Mishra,Rajieu Kumar Tripathi Counsel for Respondent :- C.S.C.,Jai Kumar,Pankaj Gupta,Y K Mishra Hon'ble Saurabh Lavania,J.
Heard Dr. L.P.Mihsra, learned Senior Member of Bar assisted by Sri Rajieu Kumar Tripathi, learned counsel for the petitioners and Sri Hemant Kumar Pandey, learned counsel for the State of U.P. as also Sri Pankaj Gupta, learned counsel for the respondent No. 7/Land Management Committee concerned.
Initially, by means of the present petition, petitioners have assailed the order dated 22.12.2009 passed by the respondent No.4-Tehsildar, Mahsi, District-Bahraich, whereby Tehsildar, Mahsi, directed the Revenue Inspector of the vicinity to take possession of the land (gatas in issue mentioned in the order) and place the proposal of allotment of land to eligible persons, and consequential relief was also sought. Thereafter, the petition was amended. It was for the purposes of assailing the orders dated 14.12.2009 and 24.02.2010 passed by the respondent No. 9-Commissioner, Devi Patan Mandal, Gonda and respondent No.10-Sub Divisional Magistrate, Bahraich, respectively.
By the impugned order dated 14.12.2009, respondent No.10-Sub Divisional Magistrate, Bahraich allowed the application dated 27.03.2008 preferred under Order 9 Rule 13 CPC by State of U.P. and Gaon Sabha-Bhabhnauti Shankarpur through D.G.C. Revenue, District-Bahraich as also another application for restoration of the case, which was filed by one Rajit Ram. The order dated 14.12.2009 was assailed by the petitioners in the Revision No. 130, which was filed under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short "Act of 1950"). The revision filed by the petitioners in relation to the application preferred by D.G.C. Revenue was dismissed by the impugned order dated 24.02.2010.
It would not be out of place to point out here that the issue related to limitation in filing the application under Order 9 Rule 13 CPC has not been pressed before this Court. It is in view of the fact that the Revision No. 131 was filed assailing the order dated 07.12.2009, whereby the S.D.O. concerned observed that the issue of limitation would be considered at the stage of passing the final order. Thereafter, both the revisions were clubbed and decided by the revisional authority/respondent No.9-Commissioner, Devi Patan Mandal, Gonda by the common order dated 24.02.2010.
At this stage, this Court feels it appropriate to reproduce the main relief(s) sought in the present petition:-
"(i) Issue a writ order or direction in the nature of certiorari, quashing the impugned order dated 22.12.2009 passed by the Tehsildar, Mahsi, District Bahraich, as contained in Annexure No.19.
(i)(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 14.12.2009 and 24.02.2010 respectively passed by opp-partes nos. 9 & 10, as contained in Annexure Nos.15 & 25, respectively.
(ii) Issue a writ, order or direction in the nature of mandamus, commanding the opposite parties, to adhere to the Rules of Law and enforce the same and not to act in violation of the order dated 21.12.2009 passed by the Commissioner, Devipatan Mandal, Gonda, in Revision No. 366 under Section 333 of the U.P. Zamindari Abolition & Land Reforms Act, 1950, and not to interfere in the peaceful cultivator possession and harvesting the crops standing-over the disputed land of khata no. 172, situate in Village Babhnauti Shankerpur, Pargana-Fakharpur, Tehsil-Mahsi, District Bahraich by the petitioners.
(iii) Issue a writ, order or direction in the nature of mandamus, commanding the opp-parties, not to destroy the standing crops and tress and also not to dispossess the petitioners from the disputed land of Khata No. 172, situate in Village Babhnauti Shankerpur, Pargana-Fakharpur, Tehsil-Mahsi, District Bahraich, and, thereby, not to carry on the proceedings of allotment during the pendency of the Suit."
Needless to say that vide order dated 28.03.2023, the original record of the case was summoned, which is before this Court.
Facts, in brief, of the case which are relevant for the purposes of the disposal of the case, are as under:-
(i) A Suit No. 881/194/143 (in short "Suit") for declaration was filed under Section 229-B of the Act of 1950 by original plaintiff namely Devta Deen, predecessor in interest of petitioners.
(ii) In the plaint, the Gaon Sabha-Babhnauti Shankerpur, Pargana-Fakharpur, Tehsil-Mahsi, District-Bahraich, has been impleaded through Gopal Singh, Village Pradhan and State of U.P. has been impleaded through District Magistrate, Bahraich.
(iii) The suit was filed, as appears from the record, before the Assistant Sub Divisional Officer (K), 'K' refers to 'Kaiserganj', District-Bahraich.
(iv) It transpires from the record that after service of notice, the written statement was filed by the Gaon Sabha which bears the signature of Gopal Singh, Village Pradhan. It also appears from the written statement of Gaon Sabha that the plaint case was opposed. (v) Another written statement bearing signature of Shiv Naryan Singh, Advocate Panel Lawyer/Sub D.G.C. (Mall) was also filed wherefrom also it appears that the plaint case was opposed. This written statement, as appears from the record, is a proforma written statement and in the same, name of the Gaon Sabha has not been indicated.
(vi) From the aforesaid facts, it can be deduced that opposing the claim of original plaintiff- Devta Deen, one written statement was filed by Gaon Sabha and another written statement was filed by the State of U.P.
(vii) At this stage, it would be appropriate to indicate that from the record, it appears that the Vakalatnama(s) were filed by some Advocates on behalf of Gaon Sabha.
(viii) It also transpires from the record that the case for declaration of rights under Section 229-B of the Act of 1950 filed by Devta Deen was transferred on several occasions and the Suit was proceeded. However, to the view of this Court, these facts and dates are not relevant. The last few dates and the order(s) passed on the said dates are relevant. It is in view of the fact that prior to final decision in the matter vide order dated 31.05.1995, which was recalled vide order dated 14.12.2009, the case was transferred to the revenue Court of S.D.O. (K) and thereafter, to the revenue Court of Extra Officer Ist, Bahraich, who passed the final order dated 31.06.1995 and one of the pleas of State of U.P. and Gaon Sabha in the application preferred under Order 9 Rule 13 CPC for recalling the final order dated 31.05.1995 passed in Suit was to the effect that the applicants were not aware about the pendency of Suit in the revenue Court concerned. The said relevant part of the application reads as "lsok esa fuosnu gS fd eqdnek bfCrnkbZ Jhekuth dh U;k;ky; ls fnukad 31-05-95 bZ0 dks ,d i{kh; :i ls fuxZr gqbZ gS mDr okn dh dksbZ tkudkjh vkosnd x.k fdlh Hkh izdkj fof/kd :i ls ugh gqbZ"
(ix) One fact, which appears from the impugned order dated 14.12.2009, is that at the time of recording the statement of witnesses and passing final order dated 31.05.1995, Lallan, petitioner No. 4, (who was substituted in suit) son of original plaintiff- Devta Deen was the Pradhan of village concerned and Up-pradhan was his wife Smt. Rama Devi, who supported the plaint case in her statement, which was recorded on 26.05.1995, after transfer of case in revenue Court of Extra Officer Ist, Bahraich.
(x) The relevant order(s), to the view of this Court, passed in the case are on reproduction are as under:-
"31-01-95 izLrqrA oknh gkftj vnkyr i=koyh SDO (K) ds u;k;ky; esa LFkkukUrj.k gsrq izLrqr gqbZA vr% vkns'k gqvk fd i=koyh 12-02-95 dks is'k gksA g0 viBuh;
12-02-95 ....................... 8-3-95 ....................... 29-03-85 ....................... 1-4-95 ....................... 11-4-95 ...................... 29-4-95 ...................... 13-5-95 ....................... 14-5-95 ....................... 15-5-95 ....................... 17-5-95
izLrqrA iqdkj djkbZ xbZ i{k gkftj vk;sA P.W. 1 jkegsrq o PW 2 uudÅ dk c;ku djk;k x;k lk{; lekIrA vr% izfroknh lk{; gsrq fnukad 26-5-95 is'k gksA g0 viBuh;
ftykf/kdkjh egksn; ds vkns'k fn0 05-5-95 ds vuqikyu esa i=koyh vfr0 vf/k0 izFke ds U;k;ky; ij gLrkUrfjr dh tkrh gS i{k fnukad 26-5-95 vfr0 vf/k0 izFke ds U;k;k0 ij mifLFkr gksaA g0 viBuh;
20-1-95 26-5-95 i=koyh U;k;ky; SDO ¼eglh½ ls izkIr gksdj is'k gqbZA iqdkj djkbZ xbZ& f}rh; i{k dh rjQ ls iz/kku xkao viBuh; ds lk{; vafdr fd, x, lk0 lekIr gq,A i=koyh okLrs cgl fnukad 28-5-95 dks is'k gksA g0 viBuh;
28-5-95 izLrqrA iqdkj ij oknh e; vf/koDrk gkftj vk,A cgl lquh x;hA i=koyh okLrs vkns'k fn0 31-5-95 dks is'k gksA g0 viBuh;
31-5-95 i=koyh is'k gqbZA cgl gks pqdh gSA eSaus i=koyh dk v/;;u euu dj voyksdu fd;kA nkok oknh fMdzh fd;k tkrk gSA 2 fdrk vkns'k layXu i=koyh gSA okn vko';d dk;Zokgh i=koyh nkf[ky nQ~rj gksA g0 viBuh;
EO-I 31-5-95"
(xi) What reflects from the order sheet of the case including the orders, quoted above, is as under:-
(a) From the order dated 31.01.1995, it appears that the paper book of the Suit, in issue, was received from the S.D.O. (K), 'K' refers to 'Kaiserganj', in the Court of S.D.O., Mahsi on 31.01.1995.
(b) After receiving the file in the revenue Court of S.D.O., Mahsi, the parties appeared on different dates and on 17.05.1995, the statement(s) of PW-1/Ramhetu and PW-2/Nankau were recorded and the case was fixed for 26.05.1995 for evidence of defendants/opposite parties.
(c) Vide order dated 05.05.1995 passed by the District Magistrate, the Suit was transferred from revenue Court of S.D.O., Mahsi, District- Bahraich to Extra Officer Ist, District- Bahraich and based upon the same, the order sheet was drawn directing the parties to appear on 26.05.1995 before the revenue Court of Extra Officer Ist, District- Bahraich and this order appears to be passed on 21.01.1995.
(d) The date i.e. 21.01.1995 appears to be inadvertently mentioned. It is in view of the fact(s) that the order dated 31.01.1995 shows that the paper book of Suit, in issue, was received from revenue Court of S.D.O., (K) in revenue Court of S.D.O., Mahsi on 31.01.1995 and on 17.05.1995, the statement(s) of witnesses of PW-1 & PW-2 were recorded. Thus, it appears that the order dated 05.05.1995 passed by the District Magistrate transferring the case was not received prior to proceedings carried out on 17.05.1995 fixing next date as 26.05.1995 for recording evidence of defendants/opposite parties. If it was received prior to 17.05.1995 then in that eventuality the statements of witnesses were not recorded on 17.05.1995.
(e) Between 17.05.1995 and 26.05.1995, the dates fixed in the case, the order of District Magistrate dated 05.05.1995 was not received in revenue Court of S.D.O., Mahsi and upon receiving the order dated 05.05.1995 of District Magistrate transferring the case to the revenue Court of Extra Officer Ist, Bahraich, an order bearing date as 21.01.1995 (wrongly indicated) was passed directing the parties to appear in the revenue Court of Extra Officer Ist on 26.05.1995, the date already fixed vide order dated 17.05.1995.
(f) From the aforesaid, it is apparent that on 21.01.1995 (wrongly indicated), the parties were not present and accordingly, it can be deduced that the parties were not aware regarding transfer of the case.
(g) Notice regarding transfer of case to revenue Court of Extra Officer Ist was neither issued, nor notified nor the parties were informed by the S.D.O., Mahsi or Extra Officer Ist regarding transfer and pendency of case in the Court of Extra Officer Ist.
(h) On 26.05.1995, the statement of witness (Smt. Rama Devi, daughter-in-law of original plaintiff-Devta Deen) of one defendant to the Suit namely "Gaon Sabha" was recorded but it is not clear from the order sheet/proceedings drawn by the concerned revenue Courts that how and in what manner, this witness of defendant-Gaon Sabha namely Smt. Rama Devi w/o Lallan s/o Devta Deen (original plaintiff), who supported the plaint case, came to know about the pendency of the case in revenue Court of Extra Officer Ist.
(i) The order sheet drawn by the Court on 31.01.1995 to 31.05.1995 does not bear the signature of counsel representing Gaon Sabha and also of the counsel representing State of U.P. In the aforesaid background of the case, Dr. L.P. Mishra, learned Senior Member of the Bar assisted by Sri Rajieu Kumar Tripathi, learned counsel representing the petitioners stated that two applications were preferred for recalling the order dated 31.05.1995 under Order 9 Rule 13 CPC. One by Gaon Sabha through Rajit Ram and another by D.G.C. Revenue, which indicates that the same was preferred by the State of U.P. and Gaon Sabha. Both these applications were allowed by the impugned order dated 14.12.2009 by the respondent No. 10/Sub-Divisional Magistrate, Bahraich, though, the same were not maintainable under Order 9 Rule 13 CPC in view of explanation to Rule 2 of Order 17 CPC as also Order 9 Rule 6 CPC read with Order 17 Rule 1 & 2 CPC particularly the explanation to the same. It is for the reason that the case was transferred from S.D.O. (K) to the Court of S.D.O., Mahsi as appears from the order dated 31.01.1995, which is available on the record of the concerned Authority and after the said transfer, the statements of PW-1 & PW-2 were recorded on 17.05.1995 fixing 26.05.1995 for recording the statement/evidence of defendants and thereafter, though, the case was transferred to the revenue Court of Extra Officer, Ist from the Court of S.D.O. Mahsi, as appears from the order sheet dated 26.05.1995, the evidence of defendant to the suit namely Gaon Sabha concerned was recorded on 26.05.1995 itself and the explanation appended to Rule 2 of Order 17 CPC shows that if sufficient evidence has been adduced by the party then on his behalf, the application would not be maintainable under Order 9 Rule 13 CPC. Thus, the order passed by the Sub-Divisional Magistrate dated 14.12.2009 is not sustainable.
Further submission is that the order dated 14.12.2009 was challenged before the Revisional Authority by means of Revision Nos. 130 and 131. The Revisional Authority decided the revision by an order dated 24.02.2010, which is also impugned in this petition. The operative portion of this order indicates that the revision was allowed against the respondent/Rajit Ram and the same was dismissed with regard to the application dated 27.03.2008 preferred by the D.G.C, Revenue under Order 9 Rule 13 CPC on behalf of State of U.P. and Gaon Sabha, which was allowed vide order dated 14.12.2009.
Sri Mishra further stated that the aforesaid aspect of the case, which is based upon the fact that sufficient evidence of defendant-Gaon Sabha was recorded after transfer of the case from S.D.O, Mahsi to Extra Officer, Ist, Bahraich and accordinlgy, the application under Order 9 Rule 13 CPC was not maintainable was overlooked by the Revisional Authority, though, the same ought to have been considered, as such, the order dated 24.02.2010 is also liable to be interfered with by this Court.
Sri Mishra also indicated some facts on the merits of the case including regarding initiation of proceedings twice against the original plaintiff- Devata Deen, which were initiated by the Gaon Sabha under Section 229-B of the Act of 1950. However, to the view of this Court, the factual aspect of the case is not necessary to be dealt with. It is in view of the issue involved in the present case. As such, the said part of the arguments is not being made part of this judgment.
Sri Mishra in support of his contentions has placed reliance on the following judgment(s) passed in the case(s) of:-
1. G. Ratna Raj (Dead) by Legal Representatives Vs. Sri Muthukumarasamy Permanent Fund Ltd. and another reported in 2019 (11) SCC 301.
2. B. Janakiramaiah Chetty Vs. A.K. Parthasarthi and others reported in (2003) 5 SCC 641.
3. Sri Pitamber Prasad Vs. Sohan Lal & others reported in 1956 SCC OnLine All 182.
4. Smt. Saroj and other Vs. State of U.P. and others reported in [2018 (138) RD 282].
5. Rame Gowda (dead) by LRs. Vs. M. Varadappa Naidu (dead) by LRs. and another reported in (2004) 1 SCC 769.
6. Ram Rattan and others Vs. State of U.P. reported in (1977) 1 SCC 188.
7. Civil Appeal No. 4257 of 2009 [Poona Ram Vs. Moti Ram (dead) Th. LRS. And ORS.].
8. Puran Singh and others Vs. State of Punjab reported in (1975) 4 SCC 518.
9. Electrosteel Castings Limited Vs. UV Asset Reconstruction Company Limited And Others reported in (2022) 2 SCC 573.
10. My Palace Mutually Aided Co-operative Society Vs. B. Mahesh and Others reported in 2022 SCC OnLine SC 1063.
11. M.S. Khalsa Vs. Chiranji Lal reported in 1975 SCC OnLine All 364.
To the view of this Court, reference to the following judgments would be sufficient as the same are on the issue raised/involved in the instant case, which is based upon explanation to Rule 2 of Order 17 CPC.
(i) G. Ratna Raj (Dead) by Legal Representatives Vs. Sri Muthukumarasamy Permanent Fund Ltd. and another reported in 2019 (11) SCC 301.
(ii) Sri Pitamber Prasad Vs. Sohan Lal & others reported in 1956 SCC OnLine All 182.
(iii) M.S. Khalsa Vs. Chiranji Lal reported in 1975 SCC OnLine All 364.
Relevant paragraphs of the judgment passed in the case of G. Ratna Raj (Dead) (supra) referred by Sri Mishra are as under:-
"14. In our opinion, the question involved in these appeals is required to be decided keeping in view the provisions of Order 9 Rule 6(1)(a) and Order 17 Rules 2 and 3 of the Code.
"Order 9 Rule 6(1)(a)
6. Procedure when only plaintiff appears.-- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then--
(a) When summons duly served.-- If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte;"
15. Rule 6(1)(a) provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if the summons is held duly served on the defendant, the Court may make an order that the suit be heard ex parte.
16. Order 17 Rules 2 and 3 read as under:
"Order 17 Rules 2 and 3
2. Procedure if parties fail to appear on day fixed.--Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.
Explanation.--Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.
3. Court may proceed notwithstanding either party fails to produce evidence, etc.-- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default--
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under Rule 2."
17. Order 17 Rule 2 of the Code provides that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.
18. The Explanation appended to Order 17 Rule 2 of the Code provides that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion, proceed with the case as if such party was present.
20. The scope of Order 17 Rule 2 and Order 17 Rule 3 of the Code came up for consideration before this Court in B. Janakiramaiah Chetty v. A.K. Parthasarthi [B. Janakiramaiah Chetty v. A.K. Parthasarthi, (2003) 5 SCC 641] wherein Arijit Pasayat, J., speaking for the Bench held in paras 7 to 10 as under : (SCC pp. 645-46) "7. In order to determine whether the remedy under Order 9 is lost or not what is necessary to be seen is whether in the first instance the Court had resorted to the Explanation of Rule 2.
8. The Explanation permits the court in its discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary power given to the court is to be exercised in a given circumstance. For application of the provision, the court has to satisfy itself that : (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day; and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the modes provided in Order 9 or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the rule, conferring discretion on the court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the court may in its discretion deem as if such party was present. Under Order 9 Rule 3 the court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6 and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are "proceed with the case". Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not.
9. In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two Rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.
10. The crucial expression in the Explanation is 'where the evidence or a substantial portion of the evidence of a party'. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The court while acting under the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision.""
Relevant paragraphs of the judgment passed in the case of Sri Pitamber Prasad (supra) referred by Sri Mishra, on reproduction, read as under:-
"3. On a consideration of the case law and the relevant provisions of the Code of Civil Procedure it appears to us that the contention of the learned counsel for the respondent is correct. In all cases in which in the absence of one of the parties a final order has been passed against him in a case on an adjourned date, there are always two questions to be considered:
(1) What was the Court empowered to do--to proceed under O. IX or to decide on merits?
(2) What has the Court actually done-- has it proceeded under Order IX or decided on merits
4. First as to the power of the Court.
5. Order XVII of the Code of Civil Procedure refers to adjournments. Rule 1 authorises the court at any stage of the suit to adjourn the case from time to time if sufficient cause is shown. Rule 2 as amended by this Court and as it stands at present is as follows:--
"Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX, or make such other order as it thinks fit. Where the evidence, or a substantial portion of the evidence, of any party has already been recorded, and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits.
Explanation:--"No party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader, though engaged for the purpose of making an application."
6. Rule 2, therefore, deals with a case in which one of the parties in fact fails to appear on an adjourned hearing. If no evidence, or a substantial portion of the evidence of the absent party has been recorded then the court may pass any one of two orders, i.e., (a) if the plaintiff is absent, dismiss the suit for default under O. IX, Rule 8 and if the defendant is absent, decree the suit ex parte under Order IX, Rules 6, 11 or 12, or (b) it may make such other order as it thinks fit, i.e., adjourn case.
7. If, however, evidence or a substantial portion of the evidence of a party has been recorded and such party fails to appear on the date fixed, the court may proceed to decide the case on merits, even though the party is absent, or it may pass any of the orders mentioned above, i.e. an order under O. IX, or an order of adjournment.
8. The explanation states the circumstances under which a party is not to be deemed to have failed to appear. If the case falls under the Explanation the party concerned cannot be considered to be absent, and no order under O. IX can be passed, and the court may either adjourn the case or decide it on merits.
9. Rule 3 as originally enacted by the Legislature was as follows:
"Where, in a case to which Rule 2 does not apply, any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance, of his witnesses, or to perform any other act, necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith."
10. This was amended by the Allahabad High Court by notification No. 6324/35(a) dated December 2, 1926 to read as follows:--
"Where any party to a suit, to whom time has been granted, fails without reasonable excuse, to produce his evidence, or to cause the attendance of his witnesses, or to comply with any previous order, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, whether such party is present or not, proceed to decide the suit on the merits."
11. As amended, therefore, a suit could be decided on the merits under this rule even though the party was absent. By an amendment dated 1-7-1944 this amendment was cancelled by the Court and the original rule as enacted by the Legislature was restored. When this original rule was restored it was held in one case by a Division Bench of this Court (see Qudrutullah v. Md. Karim Khan11), chat this rule did not apply when a party to whom time had been granted was absent and that it applied only when the party concerned was present. But in Sri Kishen v. Radha Kishen2 another Division Bench held that the rule could apply even when the party concerned was absent provided that the conditions laid down in the rule were satisfied. This conflict of opinion was however avoided by a later amendment of the rule made in the year 1953 by which it was made clear that the rule did not apply when the party concerned was absent. Thus as Rule 3 stands at present in this Court it can apply only when the party concerned is present on the adjourned date or is deemed to be present under the explanation to Rule 2 and he fails to do things for which the adjournment was granted to him and in such a case the court may decide the case on the merits or adjourn it but has no power to pass an order under O. 9.
12. There is a difference between dismissing or decreeing the suit under O. IX and decreeing or dismissing the suit on merits. In the former case, an application for restoration of the suit or for setting aside the ex parte decree lies to the court which passed the order. In the latter case, no such application can be made and the aggrieved party must proceed either by means of an application for review or by means of an appeal to a higher Court."
Relevant paragraphs of the judgment passed in the case of M.S. Khalsa (supra), as indicated by Sri Mishra, are as under:-
"51. The explanation added by this Court, by a fiction, makes a party present (where his counsel makes an adjournment application). When a party is deemed to be present, the same position follows as when he is actually present but does not participate in the hearing. Since he is present, the Court cannot proceed ex parte. The hearing will naturally be on merits and if the suit is decided on that day, the decree will be on merits, which cannot be set aside on an application under Order IX, Rule 9 or 13, C.P.C.
77. Order IX, Rule 13, authorises the defendant to apply to the court by which the decree was passed for an order to set it aside "in any case in which a decree is passed ex parte against a defendant". Order IX, Rule 6(1)(a) entitles the court to proceed ex parte where the plaintiff appears and the defendant does not appear when the suit is called on for hearing."
In the above referred judgments of this Court, Rule 2 of Order 17 CPC as amended by this Court was also taken note of.
Based upon the aforesaid judgment, Sri Mishra also stated that where the evidence or substantial portion of evidence of a party has been recorded and such party fails to appear on the date to which the hearing of the suit has been adjourned, the Court may in its discretion proceed with the case as if such party was present. In the instant case, sufficient evidence of the defendant-Gaon Sabha was recorded and being so, it is presumed that the party concerned was present before the Court and was having due knowledge of the proceedings and for this reason, the application preferred under Order 9 Rule 13 CPC was not maintainable.
He further submitted that explanation to Rule 2 of Order 17 added by this Court, by a fiction, makes a party present (where his counsel makes an adjournment application). When a party is deemed to be present, the same position follows as when he is actually present but does not participate in the hearing. Since he is present, the Court cannot proceed ex parte. The hearing will naturally be on merits and if the suit is decided on that day, the decree will be on merits, which cannot be set aside on an application under Order IX, Rule 9 or 13, C.P.C. and then in that eventuality, the judgment would be appealable and being so, an application for setting aside the judgment by calling it an ex-parte judgment would not be maintainable.
He further submitted that the application under Order 9 Rule 13 CPC would be maintainable only if the concerned party satisfies the Court the summon was not duly served and on account of the same, he failed to appear on the date fixed or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. As such, this case would not be covered under Order 9 Rule 13 CPC. It has been indicated by the Hon'ble Apex Court that for the purposes of making an application under Order 9 Rule 13 CPC, the concerned has to show the sufficient cause of non-appearance. In the instant case, the witness of defendant had appeared and she was duly examined and also cross examined, thus, the present case would fall under explanation to Rule 2 of Order 17 CPC. In this view of the matter, the present petition is liable to be allowed and the orders impugned are liable to be set aside.
Opposing the present petition, Sri Hemant Kumar Pandey, learned State Counsel and Sri Pankaj Gupta, learned Counsel appearing for opposite party No.7/Gaon Sabha concerned stated that the application under Order 9 Rule 13 CPC was maintainable as no notice was served upon the Gaon Sabha concerned as also on the State of U.P., after transfer of the case from the revenue Court of S.D.O., Mahsi to Extra Officer- Ist, Bahraich.
It is also stated from the side opposite that the case was initially filed in the Court of A.S.D.O.(K) and thereafter on several times, it was transferred. On some occasions, the notice was served and on other, it was not served. However, after being transferred from the revenue Court of S.D.O., Mahsi, no notice was served on the Gaon Sabha or the State of U.P. indicating that now the case would proceed in the court of Extra Officer- Ist, Bahraich. As such, the application was maintainable.
It is also submitted that sufficient cause on the date of non-appearance has to be shown and as in the present case, no notice was served and on coming to know about the ex-parte final order dated 31.05.1995, an application was preferred under Order 9 Rule 13 CPC through DGC, Revenue, Bahraich for restoration of the case and hearing the case on merits. As such the application was well within the time. It is from the date of knowledge of order dated 31.05.1995, which as per the application is of 27.03.2008 and on the same day i.e. 27.03.2008, the application under Order 9 Rule 13 CPC was moved.
Learned State Counsel based upon the provisions as envisaged under Rule 89-A of General Rules, 1957 stated that after transfer, the transferring Court is under obligation to satisfy itself that as to whether the notice regarding transfer of the case has been served on the parties to the proceedings. In this case, there is no indication regarding service of notice on contesting parties in the order sheet drawn on 26.05.1995 i.e. after receiving the file in the revenue Court of Extra Officer-Ist, Bahraich from the revenue Court of S.D.O., Mahsi. He further submitted that this provision is mandatory in nature and should be complied with in letter and spirit. In support of his submissions, Sri Pandey has placed reliance on the following judgment(s):-
1. Vandana Patel Vs. Phoolkali and Ors. reported in AIR 2010 All 2.
2. Vijai Singh and Ors. Vs. IInd Additional District Judge, Muzaffarnagar and Ors. reported in MANU/UP/1359/1992.
3. State of U.P. Vs. Dy. Director of Consolidation and Ors. reported in AIR 1996 SC 2432.
4. Balbir Singh Chauhan v. Vijai Kumar Agarwal reported in 1986 SCC OnLine All 694.
5. Judgment dated 04.04.2016 passed by this Court in Matters Under Article 227 No. 2026 of 2016 (Ram Naresh Vs. Hari Nam Prasad).
6. G.P. Srivastava Vs. R.K. Raizada and Ors. reported in AIR 2000 SC 1221.
7. Sushil Kumar Sabharwal Vs. Gurpreet Singh and Ors. reported in AIR 2002 SC 2370.
8. Vinod Kumar Pandey and Ors. Vs. State of U.P. and Ors. reported in MANU/UP/1038/2005.
9. Avadhesh Kumar and Ors. Vs. District Magistrate, Lko. and Ors. reported in MANU/UP/2566/2022.
10. Akttaryar Khan Vs. Azahar Yar Khan reported in 1993 SCC OnLine All 156.
11. Bishan Singh Vs. The IXth Addl. District Judge, Agra and Ors. reported in MANU/UP/1871/1996.
12. Ram Padarath Vs. Chiraunji Devi reported in MANU/UP/2689/2014.
13. Poonam Gupta and Ors. Vs. Anil Agarwal reported in MANU/UP/5483/2018.
14. State of U.P. and Ors. Vs. Sunil Kumar Bajpai and Ors. reported in MANU/UP/1002/1989.
15. Anamika MishraVersus State of U.P. and Another reported in 2019 SCC OnLine All 4599.
16. Saurabh Agarwal Vs. Additional Commissioner (Judicial) Agra Mandal, Agra and Ors. reported in MANU/UP/2350/2011.
17. Mumtaz Ahmad and Ors. Vs. Deputy Director of Consolidation, Lucknow and Ors. reported in MANU/UP/2315/2015.
18. Prakash Chander Manchanda and Ors. Vs. Janki Manchanda reported in AIR 1987 SC 42.
19. Order dated 16.09.1988 passed in Civil Misc. Writ Petition No. 8587 of 1988 (Krishna Kumar Sharma Vs. Raj Garg and Ors.).
In nutshell, it is stated by the side opposite that in absence of any notice, the Court proceeded to decide the case, as such, the order dated 14.12.2009 affirmed by the order dated 24.02.2010 is justified and no interference of this Court is required in the matter.
It is also stated by learned counsel for the side opposite that in written statement, which was filed by Gaon Sabha, the claim of the original plaintiff- Devta Deen was opposed. However, the evidence indicates that after being transferred to the revenue Court of Extra Officer-Ist, Bahraich, the case was of original plaintiff was admitted by the Pradhan of Gaon Sabha namely Rama Devi w/o Lallan s/o of Devta Deen (original plaintiff). In this regard, reference has been made to the observations made by S.D.O./respondent No. 10 in the order dated 14.12.2009. It would be apt to indicate here that this aspect of the case has not been disputed by the counsel for the petitioners.
Based upon the aforesaid, it has also been submitted that Lallan was the plaintiff, as he was substituted after the death of original plaintiff Devta Deen, when the final order dated 31.05.1995 was passed and his wife Rama Devi deposed as a witness of Gaon Sabha before the revenue Court of Extra Offier- Ist and there is no indication in the order dated 26.05.1995 regarding service of notice on the parties to the litigation. All these facts indicate that there was no notice to the parties to the suit regarding pendency of suit in the revenue Court of Extra Officer- Ist and judgment/final order dated 31.05.1995 is a collusive order. In these circumstances, the present petition is liable to be dismissed.
All the judgments referred by Sri Hemant Kumar Pandey, learned State counsel, to the view of this Court, are not liable to be referred in detail in this case. The judgments which are relevant to the view of this Court are referred herein below:-
In the case of Prakash Chander Manchanda and Ors. Vs. Janki Manchanda reported in AIR 1987 SC 42, the Hon'ble Apex Court has observed as under:-
"6. In some decisions, the High Courts have gone to the extent of saying that even if the trial court disposes of the matter as if it was disposing it on merits under Order 17 Rule 3 still if the party against whom the decision was pronounced was absent it could not be treated to be a disposal in accordance with Order 17 Rule 3 and provisions of Order 9 will be available to such a party either for restoration or for setting aside an ex parte decree. Learned counsel placed before us a number of decisions of various High Courts on this aspect of the matter. But in our opinion in view of the amendment to these two rules which have been made by 1976 amendment of the Code of Civil Procedure it is not disputed that to the facts of this case, Code of Civil Procedure as amended will be applicable and therefore it is not necessary for us to go into that question. Order 17 Rule 2 and Rule 3 as they now stand reads:
"Order 17, Rule 2. Procedure if parties fail to appear on day fixed.--Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.
Explanation.--Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.
Order 17 Rule 3. Court may proceed notwithstanding either party fails to produce evidence, etc.--Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,--
(a) if the parties are present, proceed to decide the suit forthwith, or
(b) if the parties are, or any of them is, absent proceed under Rule 2."
It is clear that in cases where a party is absent the only course as mentioned in Order 17 Rule 3(b) is to proceed under Rule 2. It is therefore clear that in absence of the defendant, the court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as it now stands also clearly lays down that if any one of the parties fails to appear, the court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure. It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on October 30, 1985 the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. October 30, 1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to Order 17 Rule 2 was not applicable at all. Apparently when the defendant was absent Order 17 Rule 2 only permitted the court to proceed to dispose of the matter in any one of the modes provided under Order 9.
7. It is also clear that Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial court went on in the controversy about Order 17 Rules 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word."
In the case of Balbir Singh Chauhan v. Vijai Kumar Agarwal reported in 1986 SCC OnLine All 694, this Court considered Rule 89-A of General Rules (Civil) meant for Civil Courts subordinate of this Court and observed as under:-
"7. It has been contended by the learned counsel for the applicant that no information either to the applicant or to his counsel was ever given as regards the transfer of the suit. The court below, thus, illegally proceeded to dispose of the suit ex parte in the absence of the applicant. There is merit in this submission. Rule 89A of the General Rules (Civil) meant for Civil Courts subordinate to High Court, which is reproduced herein below, provide for the transfer or withdrawal of cases.
"89A(1) When a case, i.e. a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular Court has been fixed, is transferred from that court to another, the former court shall record the order of transfer in the order-sheet and get it signed by counsel of the party or parties; if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the presence of the parties noted.
(2) A note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring court.
(3) Where cases are transferred in a large number the court from which they are transferred shall, besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be pasted on the notice board of the local bar association for information of the members of the bar and another copy to be pasted on the notice-board of the court for information of the general public. It shall also be sent to the other court along with the records of the transferred cases, a copy of the list (or relevant extract of it), the other court shall paste it on its own notice-board. If the other court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being pasted on the notice board of the bar association.
(4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer."
8. Sub-rule (1) of Rule 89A lays down the manner and the procedure to be adopted in the event of the transfer of a case from one court to another. This case was fixed on 18-2-86. An order for the transfer of the case was made on 21-2-86 apparently in the absence of the parties. Though no doubt it was ordered that the case be taken up on 18-3-86, the date fixed by the transferring Court, it was incumbent on the transferring Court to have satisfied itself that the parties or their counsel have been informed and the presence of the parties noted on the date. It was likewise necessary as provided under sub-rule (2) of Rule 89A that a note to the effect that the party or parties have been informed of the transfer was also made. On the margin of the order sheet the date 18-3-86 has been indicated and the names of the counsel of the parties have been shown clearly for a purpose to inform them. No information was ever sent. However, without satisfying itself even the transferee Court proceeded without recording its satisfaction that the parties of their counsel have been informed of such transfer. The Court instead of satisfying itself proceeded to dispose of the case ex parte recording the absence of the applicant (defendant). With all the haste the statement of the opposite party (plaintiff) was recorded and the judgment and order decreeing the suit ex parte was passed on that very date i.e. 18-3-86. It is, thus, clear that the transferring Court as well as the transferee Court, both, ignored the provisions of Rule 89 A of General Rules (Civil) much to the prejudice of the applicant. The Court while decreeing the suit ex parte has, thus, committed an error which would be deemed to be an error of the Court and for which no party can be penalised. It may not be out of place to mention here that in the present circumstances when the dearth of accommodations is enveloping the people tenancy naturally becomes a valuable right. Every person has to be given an opportunity to safeguard the attack on his tenancy. Prudence would require exercising caution while proceeding to dispose of a suit involving tenancy of a person and particularly at his back. The courts must assure themselves that adequate opportunity of contesting the eviction is afforded to a tenant and orders for the eviction of such tenant shall be resorted to only when it is found that the tenant is guilty of some laches or inaction or is deliberately trying to avoid participation in the proceeding.
9. The court below while disposing of the application under Order 9, Rule 13, C.P.C. has itself held that the applicant was not informed about the hearing of the case before the transferee Court on 18-3-1986 and had sufficiently made out a case for his non-appearance on the date fixed. It can further be added that the applicant cannot be held guilty of laches or inaction when the affidavit filed by the applicant in support of his application under Order 9, Rule 13, C.P.C. as well as the affidavit filed in this Court that immediately on coming to know on 19-4-86 about the transfer of the case an application was filed on 21-4-86 (20-4-86 being Sunday) and was registered on 23-4-86. When an error or mistake having been committed by the Court had been realised it would have been more appropriate to have undone the error and correct the mistake. While exercising inherent powers it was the duty of the Court to have set aside the ex parte decree and recourse to the exercise of powers should have been achieved instead of maintaining that compliance to section 17 of the Provincial Small Cause Courts Act was necessary.
10. In view of a singular fact that the counsel for the parties were not informed and in particular the counsel for the defendant about the transfer of the case from the court of the District Judge to the Court of 8th Additional District Judge, it cannot be deemed that the defendant was absent and the Court was not competent to proceed in disposing of the suit ex parte in default of the applicant. A mistake or error had crept in on account of an act of the Court and it was incumbent on the Court to have rectified its mistake. Placed in such situation even an application under Order 9, Rule 13, C.P.C. was not necessary and strictly such provisions were not applicable. On the facts of the case no application as provided was required nor the defendant was required to comply with the provisions of section 17 of the Act. Having been apprised of such facts and the notice being brought of such facts to the knowledge of the Court it ought to have itself set aside the ex parte decree. The principle of "actus curiae neminem gravabit" i.e. an act of Court shall prejudice no one, is strictly applicable and fully attracted to the facts of the instant case. In the case of Munnoo v. Smt. Champakafi, 1979 All LJ 534 a similar view was taken by this Court, where it was held that where for the lack of the information to the defendant's counsel of the change in the-date the suit proceeded, it cannot be deemed that the Court disposed of the suit on a date which was fixed for the hearing of suit and consequently, the provisions of Order 9, Rule 13, C.P.C. were not applicable. It was further held that in such circumstances the defendant-applicants were not required to comply with the provisions of section 17 of the Provincial Small Cause Courts Act. In the case of Mohammad Ali v. Governor General in Council, AIR 1949 All 36 this Court has held that where without any notice of the date of hearing to the respondents the appeal was dismissed, such dismissal of appeal would not be under Order 41, Rule 17. The provisions of Article 168 of the Limitation Act, 1908 would not apply while claiming setting aside of such a dismissal order. A learned Judge of this Court held in the case of Mohammad Ali v. Governor General in Council (Supra) as under:--
"It is always open to Court and ought to be open to the Court to rectify its error. This is what the Court has done."
11. In the case of Bhagwati Prasad v. Ram Roop Tewari, AIR 1962 All 622 the same principle has been laid by this Court.
12. The dictum of law in the cases cited above is fully applicable to the facts of this case. It is clear that the suit was heard and decreed ex parte in the absence of the applicant (defendant) as no notice was either given to the applicant nor to his counsel either by the transferring Court or by the transferee Court. The absence of the applicant was neither deliberate nor can he be held to be negligent in pursuing the case. The absence of the defendant was caused on account of a mistake of the Court. Naturally the applicant cannot be allowed to suffer for such a mistake, error or omission of the Court and the applicant cannot be blamed for his non-appearance. The application under Order 9, Rule 13, C.P.C. ought not to have been rejected by the Court below. The court below, thus, erred to exercise jurisdiction which otherwise vested in it by law in rejecting the application on the ground that the application under Order 9, Rule 13, C.P.C. did not satisfy the requirements of Section 17 of the Provincial Small Cause Courts Act Learned counsel for the opposite party Sri S.M. Dayal has in a very straight forward manner conceded to the propositions of law but has mildly stuck to his submission that where the statute provides for express provisions for setting aside an ex parte decree inherent power of the Court cannot be invoked. I do not find much substance in this submission in view of the fact that the Courts have always the power to rectify their mistakes or errors and a party cannot be penalised for the same. The Court is fully competent while invoking its inherent power to set at naught the wrong done to a party on account of its mistakes. Learned counsel for the opposite party then placed reliance on the case of G.D. Mukerji v. Shiv Kumar Gupta, (1983) 2 All Ren Cas 315. This citation is of no avail to the opposite party as the facts in that case are at variance with the controversy involved in the present case. It was found in the case of Lt. Commander, G.D. Mukerji v. Shiv Kumar Gupta (supra) that the applicant was served but on account of certain preoccupations he could not attend to his case. There was no mistake of the Court in that case and as such it was necessary that while filing an application under Order 9, Rule 13, C.P.C. compliance of section 17 has to be resorted to. This case is equally distinguishable from the facts as are revealing in the present case."
In the case of Akttaryar Khan Vs. Azahar Yar Khan reported in 1993 SCC OnLine All 156, this Court observed as under:-
"It was further submitted that in the impugned order the court below has stated that the transferee court had also issued summons to the defendant-applicants and consequently the requirement of the provisions of Rule 89A of the General Rules (Civil) was complied with and the submission made on behalf of the defendant-applicants was not sustainable. Rule 89A of the General Rules (Civil) on which strong reliance has been placed, reads as follows:--
"Rule 89A(1) When a case i.e. a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed, is transferred from that court to another, the former court shall record the order of transfer in the order sheet and get it signed by the counsel of the party or parties, if any party is unrepresented, information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the presence of the parties noted.
(2) A note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring court.
(3) Where the cases are transferred in a large number the courts from which they are transferred shall, besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be pasted on the notice board of the local bar association for information of the members of the bar and another copy to be pasted on the notice board of the court for information of the general public. It shall also Send to the other court along with the records of the transferred cases, a copy of the list (or relevant extract of it); the other court shall paste it on its own notice board. If the other court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being pasted on the notice board of the bar association.
(4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer".
5. Applying the provisions of the Rule 89A of the General Rules (Civil) quoted above, in the facts of the present case, it would be noticed from the order sheet (a copy of which has been filed along with the affidavit filed in support of the stay application) that the suit was registered on 8-10-1991 in the court of the District Judge, Bareilly and 11-11-1991 was fixed for the appearance of the defendants for which summons were issued. On 30-10-1991 the case was transferred to the court of IIIrd Additional District Judge where it was received on 2-11-1991. On the same day the transferee court ordered the case to be put up on the date fixed i.e. 11-11-1991. On 11-11-1991 the Court found that the defendants were absent and no written statement had been filed. Therefore, Court fixed 20-12-1991 for final hearing. On the said date as the court was busy, the case was adjourned for 3-2-1992. On 3-2-1992 lawyers were on strike and 9-4-1992 was fixed for final hearing. From the order sheet of the suit it does not appear that any notice as required under Rule 80A(1) of the General Rules (Civil) was issued to the defendants. It also does not appear from order sheet that as the defendants were unrepresented any information was sent of this transfer to their registered addresses. The transferring court has not recorded that the defendants had been informed about the transfer. The order sheet also does not show that the transferee court has recorded any satisfaction that the defendants had been informed of the transfer, as required under sub-rule (4) of Rule 89A. Thus from the facts of the present case it is evident that there has been no compliance of Rule 89A of the General Rules (Civil). Learned counsel for the plaintiff-opposite party has, however, contended that when cases are transferred a general notice is pasted on the notice board of the court for information and also on the notice board of the local bar association and this would be deemed to be sufficient information as required under Rule 89A of the General Rules (Civil). He has also contended that in the penultimate paragraph of the impugned order the court has mentioned that the transferee court had sent summons to the defendants and hence also compliance of Rule 89A had been made. I am, however, unable to agree with the submission made by the learned counsel for the plaintiff opposite party. From the perusal of sub-rule (3) of Rule 89A of the General Rules (Civil) it would be evident that the transferor court is required to follow the procedure laid down in sub-rule (1) of Rule 89A of the Rules and, over and above, it shall also cause a copy of the list pasted on the notice board but this is done only when a large number of cases are transferred from the transferor court to some other court. Here, apart from the fact that the requirements of sub-rule (1) of Rule 89A have not been complied with there is no finding or evidence to show that the notice was pasted on the notice board for information regarding the transfer of the case. From the order sheet of the suit it also does not appear any summons were issued by the transferee court to the defendants and the stray observation in the penultimate paragraph of the order appears to have been made by the court under some misapprehension. I, therefore, agree with the learned counsel for the defendant applicants that there has been no compliance of the provisions of Rule 89A of the General Rules (Civil). So far as the reasoning given by the court below that compliance of Section 17(1) proviso of the Small Cause Courts Act was mandatory and the ex parte decree could not be set aside as the said provisions had not been complied with by the defendant-applicants, learned counsel for the applicants has placed strong reliance upon the case of Balbir Singh Chauhan (supra). In the said case a suit for ejectment and arrears of rent was filed against the defendants which was transferred to another court but no information of the transfer was given to the parties. The suit was decreed ex parte and thereafter the defendants filed an application under Order 9, Rule 13, C.P.C. The court found the reason for the absence of the defendants as sufficient but dismissed the application on the ground of non-compliance of the provisions of Section 17(1) proviso of the Small Cause Courts Act. This Court held that, in the facts of the case, the court itself was at fault for not informing the counsel or the party regarding the transfer of the suit as required under Rule 89A of the General Rules (Civil) and under such situation neither any application under Order 9, Rule 13, C.P.C. was required nor was the compliance of Section 17(1) of the Small Cause Courts Act required. The court was required to set aside the ex parte decree in exercise of its inherent powers under Section 151, C.P.C. and failure to do so vitiates the decision and amounts to an erroneous exercise of jurisdiction. The decision of this case does support the contention of the learned counsel for the defendant-applicants. Learned counsel for the plaintiff-opposite party has failed to show any other decision in which a contrary view has been taken. I, therefore, find sufficient force in the submissions made by the learned counsel for the defendant-applicants."
Relevant paragraphs of the judgment passed in the case of Sikandar Versus Akhalak reported in 2008 SCC OnLine All 140 are reproduced below:-
"It is not in dispute that the Trial Court passed an order on 11th May, 2000 that the suit shall proceed ex-parte against the defendant. it is the contention of the learned Senior Counsel for the petitioner that even though the order to proceed ex-parte may have become final between the parties, yet the Court was obliged to comply with the provisions of Rule 89-A of the Rules and in support of his contention he has placed reliance upon the decision of this Court in Ashtosh Shrotriya (supra). Rule 89-A of the Rules is as follows:
"89-A. Procedure to be followed on transfer or withdrawal of cases.--(1) When a case, i.e. a suit, appeal of other proceedings in which a date for attendance of a party or the parties in a particular Court has been fixed, is transferred from the Court to another, the former Court shall record the order of transfer in the order-sheet and get it signed by Counsel of the party or parties, if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other Court on the date already fixed by the transferring Court and the presence of the parties noted.
(2) A more to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring Court.
(3) Where cases are transferred in a large number the Court from which they are transferred shall besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their Counsel, and shall cause one copy of it to be posted on the notice-board of the local bar association for information of the members of the bar and another copy to be posted on the notice-board of the Court for information of the general public. It shall also send to the other Court along with records of the transferred cases, a copy of the list (or relevant extract of it), the other Court shall post it on its own notice-board. If the other Court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being posted on the notice-board of the bar association.
(4) The Court to which cases are transferred shall not proceed without satisfying itself that the parties or their Counsel, as the case may be, have been informed of the transfer.
(5) In sub-rule (1) to (4) 'transfer' includes withdrawal of a case."
8. This Court in Ashtosh Shrotriya (supra) in connection with Rule 89-A of the Rules observed as follows:
"The points for consideration in the instant case are as to what construction and meaning has to be assigned to the expression 'suit be heard ex-parte' under Order IX, Rule 6 of the Code, and as to whether the learned District Judge could transfer the case or the suit in violation of the provisions of Rule 89-A of the General Rules (Civil); and as to whether the grounds enumerated in section 115 of the Code have been made out for interference by this Court.
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The expression 'that the suit be heard ex-parte' as adopted by the legislature under Rule 6(1)(a) of Order IX of the Code simply means that the Court may proceed to hear the different stages of the suit ex parte, but certainly not to decide it on merits ex-parte. To suit it differently, the object of the expression 'that the suit be heard ex-parte' is not to pass an ex-parte decree.
9. In Sangram Singh v. Election Tribunal, Kotah,2 their lordships of the Supreme Court observed as under:
"As we have already observed, out laws of procedure are based on the principle that, as far as possible, no proceeding in a Court of law should be conducted to the detriment of a person in his absence. There are of course exceptions, and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex-parte order.
Of course the fact that it is proceeding 'ex-parte' will be recorded in the minutes of its proceedings but that it is merely a statement of the fact and is not an order made against the defendant in the sense of an 'ex-parte' decree or other 'ex-parte' order which the Court is authorised to male. All that rule 6(1)(a) does is remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, merely to proceed in the absence of one of the parties. The contrast in language between Rule 7 and Rule 13 emphasises this."
The aforesaid observation does not indicate that any proceeding in a Court may be conducted to the detriment of a person and the meaning of the expression 'that the suit be heard ex-parte' is not that the Court may pass an ex-parte decree or order. In any event, the expression does not convey the meaning that the defendant applicant should be precluded from participating in the preceding of the suit. In view of the ration of this case, it is abundantly clear that the order to proceed ex-parte does not preclude the defendant from participating in further proceeding of the suit.
Rule 89-A of the General Rules (Civil) has been framed with a view to do justice between the parties and to inform the other side whenever an order transferring a case from one Court to another Court has been made. The Court transferring the case has been enjoined the duty to record the order of transfer in the order-sheet and to get it signed by the Counsel of the parties. In the present case, the order does not appear to have been passed on the order-sheet and the parties or their Counsel were not called upon to sign the order so that they could have the information that the case was being transferred to some other Court. This has also been provided under Rule 89-A of the General Rules (Civil) that the information about the transfer of the case has to be sent to the party concerned at its registered address. The court to which the case was transferred is under obligation to enquire the presence of the parties and the same has to be noted. Sub-rule (4) of Rule 89-A also provides that the Court to which the case is transferred shall not proceed without satisfying itself that the parties have been informed. This procedure was not followed and the Court to which the case was transferred i.e. XIth Additional District Judge, did not ascertain as to whether defendant applicant was informed about the transfer of the case. Thus, when the case is transferred from one Court to another, the procedure laid down in Rule 89-A has to be followed so that the principles of natural justice are sufficiently complied with.
In the present case, neither the first Court making the transfer not the transferee Court appear to have performed its duties and the transferee Court appears to have proceeded to decide the matter in violation of the provisions of Rule 89-A of the General Rules (Civil). In such a situation, the impugned order having been passed without ascertaining as to whether the Counsel for the defendant was informed about the order of transfer or without ascertaining as to whether both the parties have been informed about the date fixed in the transferee Court was manifestly erroneous and the Courts below have certainly exercised their jurisdiction illegally and with material irregularity. Consequently, the decision rendered is against the procedure provided and cannot be sustained.
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In the present case, the case was transferred from the Court of District Judge to the Court of XIth Additional District Judge without any information to the defendant or his Counsel as contemplated by Rule 89-A of the General Rules (Civil) and it would certainly constitute sufficient cause for non-appearance."
(Emphasis supplied)"
This Court in the judgment passed in Writ Petition No. 1899 (MS) of 2012 (Jaggan Nath and others Vs. The District Judge, Barabanki and others) observed as under:-
"Rule 89-A (1) reads as under :-
Procedure to be followed on transfer or withdrawal of cases:-
(1)"When a case, i.e, a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed is transferred from that court to another, the former court shall record the order of transfer in the order sheet and get it signed by counsel of the party or parties; if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the presence of the parties noted."
In the case of Reena Sadh Vs. Anjana Enterprises (2009) (1060 RD 725 Hon'ble the Supreme Court has held that Rule 89-A is mandatory. Therefore, it has to be held requiring the strict compliance of the same."
In the judgment passed in the case of Anamika MishraVersus State of U.P. and Another reported in 2019 SCC OnLine All 4599, it has been held that:-
"7. Natural justice is an important concept in administrative law. In the words of Megarry J it is "justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical". The principles of natural justice or fundamental rules of procedure for administrative action are neither fixed nor prescribed in any code. They are better known than described and easier proclaimed than defined.
8. Natural justice is another name for common-sense justice. Rules of natural justice are not codified cannone. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
9. The expressions "natural justice" and "Legal justice" do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defense.
10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. There principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed. against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". the classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works the principles was thus stated:
"Even God himself did not pass sentence upon Adam before he was called upon to make his defense. 'Adam' (says God), 'where art thou? hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat."
11. Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
12. It is not possible to define precisely and scientifically the expression "natural justice". Though highly attractive and potential, it is a vague and ambiguous concept and, having been criticised as "sadly lacking in precision, has been consigned more than once to the lumber-room. It is a confused and unwarranted concept and encroaches on the field of ethics. Though eminent judges have at times used the phrase "the principles of natural justice", even now the concept differs widely in countries usually described as civilised.
13. It is true that the concept of natural justice is not very clear and therefore, it is not possible to define it; yet the principles of natural justice are accepted and enforced. In reply to the aforesaid criticism against natural justice, Lord Reid in the historical decision of Ridge v. Baldwin, (1963) 2 All ER 66 (HL) observed:
"In Modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist?"
Further, Natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are "basic values" which a man has cherished throughout the ages. They are embedded in our constitutional framework and their pristine glory and primacy cannot be allowed to be submerged by exigencies of particular situations or cases. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness.
The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in a given situation; nothing more-but nothing less.
As Lord Denning in the case of Kandaa v. Govt. of Malaya, 1962 AC 322 observed that "if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them."
Hon'ble the Apex Court in the case of Bishambhar Nath Kohli v. State of U.P., AIR 1955 SC 65 held that "in revision proceedings, the Custodian General accepted new evidence produced by one party, but no opportunity was given to the other side to meet with the same. The Supreme Court held that the principles of natural justice were violated."
14. The Supreme Court in the case of Ramji Dass v. Mohan Singh, 1978 ARC 496 has held that as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. In that case the appeal was filed against an ex parte decree after eight years and the District Court as well as the High Court had rejected the matter on the ground of delay. However, setting aside the order of the High Court, Hon'ble Justice V.R. Krishna Iyer observed as under:
"... we are inclined to the view that, as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the order of the High Court should not have been passed in the interest of Justice which always informs the power under S. 115 C.P.C. ..."
Considered the submissions made by the learned counsel for the parties and perused the record as also considered the judgments, referred above.
In the aforesaid background of the case, the question before this Court is as to whether the application under Order 9 Rule 13 CPC, in issue, was maintainable in the light of the submissions made on behalf of the petitioners, which are based upon the explanation appended to Rule 2 of Order 17.
The answer to the aforesaid question is 'yes'. Reasons for the same are as under:-
(i) Before proceeding to consider the main issue involved, this Court finds it appropriate to observe regarding applicability of Rule 89-A of General Rule Civil (GRC).
(ii) Rule 89-A of General Rule Civil (GRC) would be applicable in the Courts subordinate to High Courts. However, as the procedure embodied under Rule 89-A of GRC is based on the principle audi alteram partem and actus Curiae neminem gravabit, this Court is of the view that the procedure embodied under Rule 89-A of GRC would also apply in the case before the revenue Court including the case, in issue, decided by the Extra Officer- Ist, Bahraich.
(iii) The procedure embodied under Rule 89-A of GRC, as already observed, would apply in the present case also and the same is liable to be taken note of in the light of the facts of the present case particularly the order sheet of the case, which is available before this Court. It may be noted that the facts related to order sheet have already been indicated in preceding paras of this judgment, as such, most relevant facts are to be taken note of.
(iv) Vide order dated 05.05.1995 passed by District Magistrate, the suit was transferred from revenue Court of S.D.O., Mahsi, District Bahraich to Extra Officer-Ist, District Bahraich. On 17.05.1995 in the revenue Court of S.D.O., Mahsi, District Bahraich, the statement(s) of PW-1/Ramhetu and PW-2/Nankau were recorded and the case was fixed for 26.05.1995 for evidence of defendants/opposite parties (Gaon Sabha and State of U.P.).
(v) It reflects from the aforesaid that the order dated 05.05.1995 passed by the District Magistrate transferring the suit from revenue Court of S.D.O., Mahsi, District Bahraich to Extra Officer-Ist, District Bahraich was received in the revenue Court of S.D.O., Mahsi, District Bahraich after 17.05.1995, the date on which the statement(s) of witnesses of plaintiff were recorded, and the case was adjourned for 26.05.1995 for evidence of defendants/opposite parties.
(vi) From the aforesaid, it is also apparent that on 17.05.1995, the parties were neither informed nor were having any knowledge regarding transfer of case from revenue Court of S.D.O., Mahsi, District Bahraich to Extra Officer-Ist, District Bahraich.
(vii) From the order sheet of the trial Court, it is apparent that no notice was issued by the transferor or transferee Court to the parties to the suit including the defendants namely Gaon Sabha and State of U.P., who preferred the application under Order 9 Rule 13 C.P.C., which was allowed vide order dated 14.12.2009 affirmed vide order dated 24.02.2010, impugned in this petition.
(viii) The order sheet of the Court concerned also shows that the transferee Court has not recorded any satisfaction that the defendants were informed of the transfer as required as per sub-rule 4 of Rule 89-A of GRC. It does not appear from the order sheet that the defendants were informed about the transfer of the case on their registered address.
(ix) Thus, in view of the aforesaid facts, this Court finds that there is non-compliance of procedure embodied under Rule 89-A of GRC.
(x) Further, if it is presumed that it is a case of general transfer and service would be deemed to be sufficient if notice regarding transfer is pasted on notice board of local Bar Association, then in that eventuality, the petitioners were under obligation to plead accordingly, however, in the instant case, nothing has been pleaded by the petitioners based upon which it can be presumed that the provisions of Rule 89-A GRC were complied with.
(xi) In addition, in the order sheet as also in the final judgment dated 31.05.1995 passed by the revenue Court of Extra Officer-Ist, District Bahraich, there is no finding that the notice was pasted on notice board for information regarding transfer of case. From the order sheet, it does not reflect that the summons were issued to the parties to the litigation including the contesting defendants namely Gaon Sabha and State of U.P.
(xii) It would be appropriate to refer that Gaon Sabha in its separate written statement opposed the claim of original plaintiff- Devta Deen and from the statement recorded on 26.05.1995 of Smt. Rama Devi w/o Lallan s/o Devta Deen (original plaintiff), it is apparent that this witness of Gaon Sabha admitted the claim of original plaintiff.
(xiii) No doubt, the statement of witness of Gaon Sabha was recorded but it is not clear from the order sheet/proceedings drawn by the concerned revenue Courts that how and in what manner the said witness of defendant/Gaon Sabha came to know about the pendency of case in revenue Court of Extra Officer-Ist, District Bahraich particularly in view of the fact that on 17.05.1995 when the proceedings were concluded in the revenue Court of S.D.O., Mahsi, District Bahraich even the said revenue Court was not aware about the order of District Magistrate dated 05.05.1995 transferring the case from revenue Court of S.D.O., Mahsi, District Bahraich to Extra Officer-Ist, District Bahraich. Moreover, the order sheet drawn by the Courts on 31.01.1995 to 31.05.1995 does not bear the signature of counsel representing the Gaon Sabha as also that of State of U.P.
(xiv) Regarding the submissions of learned counsel for the petitioners based upon explanation to Rule 2 of Order 17, this Court finds that as per explanation, if evidence or a substantial portion of evidence of "any party" has been adduced and "such party" fails to appear on any date to which the hearing of suit is adjourned then in that eventuality, the application on behalf of the said party under Order 9 Rule 13 CPC would not be maintainable. The expression "any party" and expression "such party" are relevant. In this case, the evidence of Gaon Sabha was recorded in the revenue Court of Extra Officer-Ist, District Bahraich (transferee Court) on 26.05.1995 but how the witness of Gaon Sabha, daughter-in-law of original plaintiff-Devta Deen, came to know about the pendency of case in the revenue Court of Extra Officer Ist, Bahraich, is not clear from the record, as observed hereinabove. However, the evidence of State of U.P. (defendant in suit) was not adduced.
(xv) From the aforesaid, it is evident that no notice regarding transfer of the case, in issue, was ever served or received or issued or notified and the statement of witness of State of U.P. (one of the defendants), who filed the separate written statement, was not recorded, as such, to the view of this Court, the application was maintainable under Order 9 Rule 13 CPC and rightly allowed by the revenue Court concerned affirmed by the Revisional Court concerned and being so, this Court finds no merit in this petition challenging the orders impugned.
In regard to relief(s) No. (i), (iii) & (iv), this Court is of the view that for protecting the rights/possession over the property/land, which is subject matter of the suit, in issue, during the pendency of the suit, the petitioners are having statutory remedy under Section 229-D of the Act of 1950 and for which they can prefer an application. As such, this Court is not inclined to grant the relief(s) No. (i), (iii) & (iv) in exercise of power under Article 226 of the Constitution of India.
It is provided that if an application is preferred by the petitioners seeking interim protection, the Court concerned shall consider and dispose of the same strictly as per law, after providing proper opportunity of hearing to the parties, within a period of two months from the date of preferring the application. For a period of two months, as an interim protection was granted by this Court on 20.03.2023, which is continuing, the petitioners shall not be dispossessed from the property, in issue.
In view of the age of litigation, it is further provided that the revenue Court concerned shall conclude the proceedings within a period of one year from the date of production of certified copy of this order. For concluding the proceedings within the time specified, the revenue Court concerned shall avoid unnecessary adjournments.
With the aforesaid, the petition is dismissed. Costs made easy.
Order Date :- 30.05.2023 Arun/-