Uttarakhand High Court
Petitioners vs Deepak Tiwari And Others on 17 September, 2019
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 1387 of 2015
Praveen Singh and Others
...Petitioners
Vs.
Deepak Tiwari and Others
...Respondents
Mr. B.C. Pande, Senior Advocate assisted by Mr. B.D. Pande, Advocate for the
petitioners.
Mr. Sunil Khera, Deputy Advocate General along with Mr. Tarun Lakhera, Brief Holder
for the State of Uttarakhand.
Mr. Rakesh Thapliyal, Advocate for the respondent.
Hon'ble Sharad Kumar Sharma, J (Oral)
A revenue suit being Revenue Suit No. 22/1067 of 2008- 09 'Deepak Tiwari vs. Dinesh Chandra and Others' was filed by the plaintiff (respondent no. 1 herein) seeking a declaration by invoking the provisions contained under Section 229B of the Zamindari Abolition Act. At the time when the Suit itself was instituted by the plaintiffs, i.e. as back as on 29.06.2009, in relation to the property, which was more particularly described in relief clause of the plaint, which constituted to be Khet No. 622-gha having an area of 0.231 hectares, it was sought to be declared as to be a bhumidhar land lying under Shreni 1. When the said Suit was instituted, it was as against as many as about 16 defendants to the Suit, but the petitioner who claims himself to be the purchaser of the property in dispute, which was a subject matter of the aforesaid Suit, even much prior in time, i.e. on 23.07.2002 by virtue of a registered sale deed was not impleaded as a party to the proceedings of the Suit under Section 229B, i.e. Revenue Suit No. 22/1067 of 2008-09.
2. The petitioner contends that there was apparent malafides in relation to the manner of institution of the Suit itself, because for the reason being that in a proceedings which was simultaneously initiated on a criminal side by registration of an FIR on 29.07.2007, the factum of vesting of the right in favour of the petitioner by the predecessor owner in favour of the petitioner was reflected in the FIR, which was filed by the respondents against the present petitioner.
23. What he tries to derive from aforesaid arguments, the said registration of the FIR is that as soon as the respondents had registered an FIR and they referred to the sale deed of the petitioner by virtue of which the right was vested with the plaintiff, that itself discloses the fact that the respondent/plaintiff was well within the knowledge of the right being created by the predecessor owner in favour of the petitioners to the sale deed executed in his favour, but despite of it, the grievance of the petitioner is that the respondent/plaintiff has chosen the predecessor-owner of the petitioner, only to be made as a defendant to the Suit irrespective of the fact that the plaintiff-respondent had the knowledge that the petitioner after the purchase made by him on 23.07.2002, has stepped into the shoes of the defendants of the Suit, who obviously after execution of sale deed on 23.07.2002, had lost their interest over the subject matter of Suit under Section 229B.
4. As already observed above that the said Suit for declaration under Section 229B in relation to the property in dispute, which stood purchased by the petitioner it was instituted only on 29.06.2009, and as per the case of the petitioner it was expected that when the knowledge of the sale deed dated 23.07.2002 executed in favour of the petitioner was in the knowledge of the respondent, their grievance is that since it was affecting the rights and title of the petitioner, which was sought to be hampered by way of a declaration at the behest of the plaintiff/respondent they ought to have been impleaded as a party to the Suit.
5. Be that as it may, ultimately the Suit proceeded and the Suit was decreed by an ex parte judgment by the Court of Assistant Collector so far it relates to the petitioner, the judgment rendered on 02.03.2015, it would be an ex parte against the petitioner for the reason that though admittedly the right stood created in their favour by the said sale deed dated 23.07.2002, on the basis of which they stood recorded in the revenue records, but despite of the fact that their purchase and the vesting of the rights was in the knowledge oft the plaintiff/respondent, but they were not made as a party though the 3 decree dated 02.03.2015 was materially affecting their right, which was created in their favour by the sale deed.
6. Since the petitioner was not the party to the proceedings under Section 229B, he could not have invoked the provisions contained under Order 9 Rule 13, which is available to the defendants, when the Suit is proceedede ex parte or decreed ex parte because the provisions of Chapter 9 of the CPC would be made applicable over the proceedings under the U.P.Z.A. & L.R. Act by the implications of the provisions contained under Section 341 of U.P.Z.A. & L.R. Act.
7. In such an eventuality, where the statute does not contemplate a forum or a remedial procedure in relation to the person, who is affected by a decree and is not party to the Suit, the residuary clause of Section 151 of CPC comes into play to be invoked by a person, who is likely to be affected by any ex parte order and consequently the petitioner contends that he has filed an application under Section 151 of CPC seeking recall of the ex parte judgment decree dated 02.03.2015. The said application of the petitioner came up for consideration before the Court of Assistant Collector, and the Assistant Collector by the impugned order dated 23.04.2015 has rejected the recall application. Consequently, the present writ petition challenging the judgment dated 02.03.2015 and order dated 23.04.2015 rejecting the application under Section 151 of C.P.C.
8. During the course of arguments, what has been reflected is that even much prior to the initiation of the proceedings of the Suit under Section 229B, as it has been argued by the learned senior counsel for the petitioner that the property already haed underwent the proceedings under Section 143 of the U.P.Z.A. & L.R. Act and a declaration of conversion of its user was made in favour of the petitioner by a judgment dated 03.10.2002, and consequently, the implications of declaration made under Section 143 would be flowing in consonance to the provisions contained under sub-section (2) of Section 143 of U.P.Z.A. & L.R. Act, but be that as it may, the fact remains that the propriety of the decree dated 02.03.2015 and its implication, which it would have as a consequence of the declaration 4 made under Section 143 required a determination on its merit after a contest is being put under challenge by the petitioner, but since his application under Section 151 seeking setting to aside the ex parte decree of 02.03.2015 has been rejected by the Court of Assistant Collector vide his order dated 23.04.2015, all his contentions with regards to the determination of his rights and with regards to the adverse effect of the judgment, which the decree would have so far it relates to the vesting of his title based on the sale deed dated 23.07.2002 it required a consideration by an appropriate forum, which is created under a special statute, which forms part of Schedule IX of the Constitution of India by invoking the forum provided under the Act itself under which the proceedings were held and was considered by the order dated 23.04.2015.
9. Since the invocation of Section 151 was under the garb of applicability of CPC under Section 341 of the U.P.Z.A. & L.R. Act any decision if it is taken on the application under Section 151 though a procedural law, but it will fall to be within the ambit of the procedure contemplated under the U.P.Z.A. & L.R. Act itself and, hence, any order passed under Section 151, while seeking recall of an ex parte decree would amount to attach a finality as far as the rights of the petitioner is concerned with the rejection of his application under Section 151.
10. In such an eventuality, the statute has not left the petitioner remedyless, for redressal of his grievance against the rejection of his application under Section 151 of CPC on 23.04.2015 seeking recall of the ex parte order dated 02.03.2015. In such an eventuality, the statutory remedy, which would be available to the petitioner, was by filing a revision before the next superior court under Section 333 of the U.P.Z.A. &L.R. Act. Consequently, this Court is of the view that the invocation of a writ jurisdiction under Article 227 of the Constitution of India for exercising extra ordinary supervisory jurisdiction is not available to the petitioner, because the court while exercising its extraordinary supervisory jurisdiction over an order passed by the sub-ordinate courts will not barge over the jurisdiction of the forums, which is otherwise has been statutory 5 contemplated under law and made available under the special statute, which has been provided by Schedule 9 of the Constitution of India.
11. Hence, this writ petition is dismissed holding it to be not maintainable with a liberty open to the petitioner to seek an appropriate remedy of preferring of a revision under Section 333 before the competent court. If he does so by filing a revision within a period of two months from the date of receipt of the certified copy of this order, his application under Section 5 to be read with Section 14 of the Limitation Act in preferring the revision against judgment dated 23.04.2015 would be considered liberally by the revisional court.
12. Subject to above observation, the writ petition is dismissed.
(Sharad Kumar Sharma, J.) 17.09.2019 Pooja